The Star Witness Against Hunter Biden and the End of IVF in Alabama
TOPICS DISCUSSED
Updates on the Hunter Biden Investigations
Alabama’s Supreme Court on IVF
Outside of Politics: Why You Should Never Retire
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EPISODE RESOURCES
In vitro fertilization (IVF) (Mayo Clinic)
Why you should never retire (The Economist)
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TRANSCRIPT
Sarah [00:00:07] This is Sarah Stewart Holland.
Beth [00:00:09] This is Beth Silvers.
Sarah [00:00:10] You're listening to Pantsuit Politics.
Beth [00:00:12] Where we take a different approach to the news.
[00:00:14] Music Interlude.
[00:00:29] Thank you so much for being here today. We have two subjects to discuss. Both of them shed a lot of light on contemporary Republican politics in the upcoming election, but both are about more than that, too. First, we're going to talk about a witness who's been very important to Republicans investigations into President Biden and Hunter Biden, which has all been very blurry. We like to take some clarity where we can find it. This week, we got some clarity in the form of a criminal indictment against the witness that Republicans have been relying on, Alexander Smirnov. So we're going to discuss that. Then we are going to talk about the Alabama Supreme Court's ruling on the status of frozen embryos. This came from a wrongful death lawsuit. In light of this ruling, already, we have the University of Alabama at Birmingham announcing that it's pausing all IVF procedures so hugely consequential. You've probably seen a range of headlines about what this means. We want to be as precise as we can about this specific case, and then discuss how we're processing it in the larger context of conversations about birth and pregnancy and reproductive rights. And Outside of Politics, we'll talk about a recent piece from The Economist called Why You Should Never Retire.
Sarah [00:01:40] As we approach this session today, we're thinking about some fundamentals of American federalism and democracy and what it means to be a healthy republic. If those big picture ideas are interesting to you, we would love for you to join us this year for our slow reading through Alexis de Tocqueville's classic, Democracy in America. So if you don't know what Democracy in America is, it was published in 1835. Alexis de Tocqueville was French- if you couldn't figure out from his name. And he traveled around America and made many, many observations that are considered-- I was a political science major in college. They are considered the best. That he had the most important, interesting and accurate insight that has stayed true to American and American culture and how that plays out in American democracy. So over the course of the next six months, we will be sharing conversations about the book and what it means for modern American democracy every two months on our premium channels. The first of those conversations drops today. So if you're not already a premium member, now is a great time to join us.
Beth [00:02:39] Next up, we're going to talk about the really interesting ripped from a spy novel facts surrounding Alexander Smirnov and Hunter Biden.
[00:02:48] Music Interlude.
[00:02:58] Sarah, the Biden impeachment, Hunter-Biden congressional investigation, it is all very weird. And because it's so weird, it's hard to follow. I think that's partly because members of Congress leading that investigation, like your representative, Jamie Comer of Kentucky, are not very competent.
Sarah [00:03:16] Don't say it like that. That was mean. I think it was mean what you just said to me.
Beth [00:03:21] No. Listen, I just like to own where we're from, because I do think we take a different approach to the news. And part of that difference is that you are represented by Jamie Comer and I am represented by Thomas Massie. I'm not bragging here. I don't have anything to show off..
Sarah [00:03:33] It just feels mean.
Beth [00:03:34] I know. I'm sorry
Sarah [00:03:35] I got tears in my eyes when I have to, like, really confront that reality that that is who represents me in Congress. I think I compartmentalize it about enough. And then when you just said it like that way to talk about this, literally I have tears in my eyes because I'm really having to confront the reality that a complete and total buffoon represents me and my family in Congress.
Beth [00:03:55] I am sorry, I did not mean to hurt your feelings.
Sarah [00:03:58] Thank you. I appreciate it.
Beth [00:03:59] Also, in addition to the incompetence, there's a lot of smoke. There are a lot of things that if you just say them, they sound not great.
Sarah [00:04:08] Oh, yeah.
Beth [00:04:08] But it's hard to find the fire. And we have a very concrete example of that this week with the indictment of a person whose name is actually Alexander Smirnov.
Sarah [00:04:23] No. Well, we discovered Beth is that the smoke is real, but the fire is because this entire investigation is bullshit and being led by Russian spy. That's the actual fire.
Beth [00:04:37] So there are so many blast from the past in this indictment. Let's just talk about who this person is for a second. Alexander Smirnov is an Israeli citizen. He lives in Las Vegas. He does things in the world. He does some cryptocurrency dabbling, and he dabbles in things. But he has lots of relationships all over the world, many with international spies.
Sarah [00:05:00] I think people like this are so interesting. You read it and you think it's like my friend, the arms dealer that used to sell outdoor furniture in Florida, but now he sells arms around the world. And I just want to think, how did you get here, friend? What did the road look like that brought you to this destination?
Beth [00:05:19] Tell me everything. I would sit down and chronicle Alexander Smirnov's life if he is interested in telling that story because I do think it's fascinating. Okay, so going back at least to 2010, he has been an FBI informant, confidential human source, and he's had a handler. And the indictment spends a bunch of time saying, we tell our confidential human sources that they have to tell us the truth and only the truth, and not waste our time with anything that is not the truth. The truth. Very important. Alexander knew and was frequently advised to tell only the truth.
Sarah [00:05:55] And also you're telling this to someone who goes and lies to other people. So it's a pickle. It's a real pickle. I'm just saying.
Beth [00:06:06] The situation is that Alexander Smirnov gave information to his handler that ended up in an FBI form. And that form is what Jamie Comer and other Republicans have spent a lot of time telling Fox News and others is a very big deal. This form is going to be the smoking gun.
Sarah [00:06:28] And this is also the form that they saw in a secure location that Marjorie Taylor Greene took a picture of and post on social media. Am I correct?
Beth [00:06:34] I don't know that.
Sarah [00:06:35] Oh, yeah. They went into a room, they got to see this information and they were like, okay, we'll take you to a secure lot and we'll let you look at some of this information. But, obviously, don't share this because that's why we're showing it to you in a secure location because it's delicate information. And she took a picture with her phone and post it on social media.
Beth [00:06:50] What happened to be false information. So the substance of this is even weird because Alexander Smirnov changed his story a couple times, but essentially it became pretty clear to his handler in 2017 that he was not a fan of Joe Biden because he made a comment about meeting with somebody from Burisma. Everybody, remember Burisma our old oil and gas friends in Ukraine? He made a comment about Burisma possibly acquiring a U.S. company and taking it public, and said something about Hunter Biden being on their board. Okay. Well, then three years later, he has new information about what that meeting contained that he had never shared before. He had never taken a minute to say any of this. But three years later, he says, actually, that executive told me that he has to bribe both Joe and Hunter with $5 million apiece in order for Joe Biden to help him with this terrible Ukrainian prosecutor who's going after Burisma. And some of that formed the basis of the first impeachment of Donald Trump. It has been smoke for a long time just hanging in the air. So there's this form where the handler wrote down the things that the confidential human source, Alexander Smirnov, told him. And then the FBI did what it does and investigated that. And they closed the investigation because they found that the things on the forum were not true. And then the Republicans in Congress heard about the form and they started investigating again. And in the meantime, we get a special counsel appointed to prosecute Hunter Biden.
Sarah [00:08:34] Not for bribes. Just want to point that out. Not to investigate Hunter Biden for bribes, to investigate Hunter Biden for tax fraud and arms violations or whatever it was.
Beth [00:08:44] So that's special counsel under major scrutiny and pressure from Republicans in Congress is like, well, I'll take a look at the form. And so his team investigates and they bring old Alexander in for an interview. And in the interview he repeats some of the story, he changes some of the story. At the end of the day, it turns out that Alexander has told the FBI about meetings that happened years after he said they happened. That he said Burisma was bribing Joe Biden while he was vice president, even though the conversation they had took place after Joe Biden was already out of office. The Ukrainian prosecutor was already out of office. Turns out, long story short, the dates don't line up. It's all fiction, and the indictment is full of receipts. Here's a trip that didn't happen. Here's where this person was when he said he was somewhere else. It all falls apart upon scrutiny. But the other thing that comes out is that Alexander has said, I think it sounded like maybe he was bragging about this, that he has chatted with some very high level Russian officials, and they told him about this premier palace hotel in Kyiv that they are totally in control of and they've wired. And Hunter frequents the Premier Palace Hotel, and probably they have recorded him in some phone calls. And Alexander is right in the middle of negotiations to try to end the Russia Ukraine war. He thinks that part of what's going on is that Russia wants Ukraine's help to influence the next U.S. presidential election, and the kompromat from the Premier Palace Hotel is going to be part of that. Okay. Well, the thing is, Hunter Biden has never been to Ukraine.
Sarah [00:10:32] Small flaw in the story.
Beth [00:10:35] He hasn't been to this hotel in Kyiv. Hasn't been to the country of Ukraine.
Speaker 3 [00:10:39] Well...
Beth [00:10:40] All of the Burisma board meetings he's attended have been outside of Ukraine. Strange but true.
Beth [00:10:48] So Smirnov is charged with making a false statement and falsifying records in a federal investigation by the special counsel who is prosecuting Hunter. So the special counsel's interests, would seem to be aligned with people who are like, go get Hunter for bad actions. And he's saying, I will do that. And also I will prosecute people who waste my time by lying to me.
Sarah [00:11:16] Well, I bet the part about him talking to Russian officials is true. For what it's worth, I bet that part's accurate.
Beth [00:11:22] Hunter thinks so because now there is a whole separate skirmish in one of Hunter's cases about this situation with Smirnov and how it affects his cases, and he thinks that Smirnov is responsible for his plea deal falling apart. Again, it's all complicated and it's weird, and you could spend so many hours of your life chasing the details.
Sarah [00:11:45] But don't.
Beth [00:11:47] The salient detail is that the most prominent piece of evidence republicans in Congress were supposed to bring to the table that would justify the impeachment of the president of the United States, turned out to be false.
Sarah [00:12:06] Yes, I would like to politely recommend you not follow Jaime Comer literally anywhere, including down this rabbit hole of conspiracy theories. I also have to say, for the record, that I enjoy this new aggressive Hunter- Biden strategy very much. I think it is the right approach. I think this sort of quiet integrity that was before their approach wasn't working. And I think you have to be a little more aggressive with this group because they will lie and they will base their entire theories on liars. I'm here for this new Hunter that's like, oh, hell no. You want to call me behind closed doors? I'll show up for the hearing. You want to base this on a big old lying liar? I'm going to call you out. I'm going to be aggressive in my answer. So I hope this continues to fall apart.
Beth [00:12:51] I am good with most of the aggressive strategy. I think if you receive a subpoena from Congress, you need to show up and sit in the chair, even if it is under circumstances that you don't like and a way that you don't want it to go. And if you think the whole thing is unfair, you can sit in the chair and refuse to answer the questions. You can sit in the chair and take the Fifth Amendment. But if you get called to Congress, I think you should sit in the chair. I think that goes double if you're a member of Congress and you've received a congressional subpoena. There's so much bad behavior around congressional subpoenas, I would just like to get back to take it seriously. Congress should take the process seriously when they issue the subpoena, the witness who receives it should take it seriously that they received a subpoena from Congress.
Sarah [00:13:34] I don't know, I think that's tough. It's tough when they're not serious people. If you were Hunter Biden's attorney and Marjorie Taylor Greene had taken a piece of security information and taken a picture with her phone and post it on social media, you'd feel comfortable sending him to a closed door deposition with these people and trusting that they're going to convey whatever he does, especially sit there and take the Fifth in any sort of fair manner? If I was his attorney, I'd be like, no, brother, let's not go. It's a tough one. They're not serious people.
Beth [00:14:04] But they are in a serious institution. And I believe that we still have to protect the institution. I don't think we're done with Alexander Smirnov, for what it's worth, because David Weiss, the special counsel, really, really does not want him to be released pending trial. He wants him locked up before these charges because of all these contacts that he has with foreign intelligence agencies. Because he has access to $6 million in cash that he lied about. Because he can get a new passport pretty easily. I saw a tweet where someone said when the Department of Justice is fighting hard about detention before trial, something else is going on. And I do think that the meetings with the Russian officials, the connection to potential election interference this year, we're not done with all of this. That's my fear, that we're going to have to keep talking about it. But we want to try to talk about it in contained chunks when we actually know something. And what we actually know today is that potential star witness is a liar who is going to be charged and tried for his lies. Next up, we are going to drastically change directions as we go to the state of Alabama, where the Supreme Court of Alabama has recently issued a decision about the legal status of frozen embryos. That's up next.
[00:15:37] Music Interlude.
[00:15:48] Okay, this is going to be a hard conversation. And I wanted to do just a couple of, like, agreements maybe that we could make, even though you're listening and not sitting here with us to actually agree. When we are talking about pregnancy and birth and reproductive rights, I think language is really important and it is also very constraining. And so as I put together notes about this decision, I just used the language that the justices of the Alabama Supreme Court used. And whoever you are and however you feel about anything, there will be pieces of that that you don't like. There will be pieces that feel too sanitizing or too exclusive. There's a lot about like the mother's womb. There are a million reasons that you will have a language problem today. And I see and hear you. And also we just can't do everything in one conversation. And I think trying to understand what the court did here is really important. Also, this is very emotional. I had emotions about it and I don't have direct experience paralleling the plaintiffs in this case. So we're going to be as careful as we can while discussing something that is both a significant public policy issue and an enormous matter of individual experiences. And we're going to balance that the best that we can.
Sarah [00:17:07] So let's begin with the facts of this case, which I think are interesting. Particularly with regards to the legal conclusion and consequences. So the plaintiffs in this case are three couples who were receiving IVF treatments between 2013 and 2015. We have somebody that gets loose in the hospital where these couple's embryos are being stored. They don't go into the details, but it is sort of interesting. So they were just wandering around, picked them up, and because they are cryogenically frozen, they burned the person's hand and they dropped them, breaking the containers and destroying the embryos. So these couples take different and sort of legally complicated path to say we were harmed by this. We were harmed that the hospital in the fertility clinic did not secure these embryos and ours were destroyed. And we would like some legal recourse.
Beth [00:18:06] They put out alternative theories. So Alabama has a wrongful death statute like many states. So that's a civil matter. There was no crime charged here. I have heard characterizations of this case where murder is involved. That is not what we're talking about. We're not talking about a crime. We're not talking about the patient who, under whatever circumstances, took these out and dropped them. We're talking about the fertility clinic and the hospital. Who were in charge of securing the area. So one path is are they responsible for wrongful death? Alternatively, are they liable for negligence, also a civil claim? And so the question presented here, is really do we think the embryos are a child for purposes of the wrongful death statute? Or are they more like property for purposes of a negligence claim? And the trial judge said this really stinks, but unfortunately neither. Because they don't fit under the wrongful death statute. And Alabama does not allow compensatory damages for human life. And they are human enough to not be property. They have characteristics of being a child and characteristics of being property. But they aren't really either one. And I'm sorry that this happened, but right now, Alabama law does not have a remedy for you.
Sarah [00:19:35] So it goes to the Supreme Court. The Supreme Court looks at Alabama's wrongful death of a minor act and says, is there an exception for embryos outside the womb (extra uterine embryos, as the case may be)? And this court says, nope. No exception. That an extra uterine embryo is still a human child and is included under Alabama's wrongful death of a minor act.
Beth [00:20:10] And it's interesting because there's a concurring opinion that says the majority made up this exception idea. The majority wants this to be an easy case. They write the opinion and they start out by saying lots of big ethical questions, thorny, hard, weighty, consequential questions presented in this case. We don't have to decide them because the plain text of the wrongful death statute applies, and we have long interpreted that plain text to include unborn people. This is significant because in a wrongful death case. Lots of courts have said if you are a drunk driver and you hit a car with a pregnant woman in it and both she and the life she is carrying are killed, then you have killed two people for purposes of wrongful death compensation. That's pretty normal. If you are a domestic abuser and your abuse kills both a person and the child that person is carrying, then you can be tried for both of those deaths. There are lots of contexts where we say, yes, this is a child for this purpose. And this court says, why would there be an exception for a life that exist in vitro instead of in utero? But a concurring justice says that is really like a cute way to avoid the very hard questions in this case about what is this for this purpose?
Sarah [00:21:52] What I think is so fascinating about the consequence here is that you have couples who used IVF saying this was so important to us. We're going to push this legal case, and the consequences of the legal case is now removing IVF as an option that these couples clearly used. Like, to me, that tells you that this is a weird case and bad law if what you're doing is in an effort to acknowledge the importance of these embryos to these couples, is removing the avenue for other couples to get these embryos. I mean, to me, that's like it's all wrapped up in the repercussions of this. Because we do have the University of Alabama hospital system saying we're out. That they will be suspending in vitro fertilization in their hospitals and clinics.
Beth [00:22:53] Let's talk about the University of Alabama at Birmingham. This was argued in the case. A consequence of this decision could be that people do not have the opportunity to have children via IVF in Alabama anymore. The court did not ban IVF. The court said you have liability, as a hospital or reproductive clinic, as though the embryo is a child. If I am the caretaker of frozen embryos and now this is a child for civil legal purposes, what kinds of duties does that impose on me? Because it seems that it could be something far beyond locking a door to prevent people from accessing. If this is a cryogenic nursery, which is a phrase used so many times throughout this opinion, do I need to have constant supervision? If this embryo is a child, can I ever have it be unattended? Do I have to note any material changes taking place with respect to it? I think it's fair for this hospital to say, we're going to pump the brakes for a second and consider what this means for us. Because we could have all kinds of exposure that we've never contemplated, if for the vast majority of civil purposes we have a child here instead of something more like property.
Sarah [00:24:15] Well, because we had a listener write in about her own IVF journey and she talked about some of the embryos are destroyed through the process of defrosting them. They just don't survive that process. So does that mean that the clinic murdered a child? First of all, we're in the legal language, but of course it doesn't. Of course it doesn't under any conception, based on common sense or lived reality. But this is not what the pursuit of pro-life policies are founded in. And what makes me the most furious about this decision is I had so many smug evangelical, mostly men, from my previous life on Facebook, explaining to me that Dobbs wasn't going to mean women were arrested for having miscarriages, which is exactly what happened in Ohio. It wasn't going to mean that people were going to lose access to IVF, which is exactly what has happened in Alabama. And I just want to scream because everyone on the pro-choice side said, this is not the end. This is the beginning of the complicating, far reaching, devastating consequences of this approach to reproductive health. The women who are in the middle of this process, who are exposing themselves to massive amounts of hormones to get egg retrieval, fertilization, implantation, some of these drugs increase your risk of cancer. These are the lengths people are willing to go to, not to mention the money they've just flushed down the drain, because this is not something you can just easily pause and pick back up again. It's just maddening. It's maddening.
Beth [00:25:59] And that's what makes this case so hard to talk about. Because so much of the law operates from a question of whose perspective are we talking about? You go to law school and people start to say all the time, "Isn't this illegal?" And you constantly have to say, "Well, it depends." And from the perspective of people in the IVF process, those embryos are absolutely precious and important and representative of so much physical and emotional investment and a grueling, agonizing, expensive, as you said, process. So it is very unsatisfying to think that these families could not seek some kind of compensation from the hospital. It is a big deal that these embryos were left unsecured and were destroyed in such a preventable way. They should have some recourse for that. It's deeply hard to figure out under what legal theory that should proceed because even though IVF has been happening for years now across the country in the United States, our legislatures have not thought a lot about what to do with these procedures.
Sarah [00:27:20] America has a lot of problems when it comes to reproductive health and reproductive law and reproductive regulation. I am a strong proponent of a European model where you have a bio-medical ethical committee. Depending on the country, sometimes they're composed of of rabbis and priests and medical ethicists and philosophers. But you have people whose job it is to work through this. They're not state legislators and they're not judges. There are people who understand the complexity, particularly the medical complexity, and they are more regulated. I do believe that we have a lot of room in the United States for-- again, I don't want to see regulation coming from the state legislature because I don't think they're qualified. But I do wish we had more a European model where we could have experts work through the biomedical ethical implications of IVF, of paid surrogacy, of artificial insemination, because we are alone in much of the world as opposed to our sort of hands-off-everybody-do-what-they-think-is-best approach. And, look, that is also true for abortion. In a lot of other countries, it is regulated. There are cut offs. And it's not the approach advocated for many people on the left, the progressive left, which is just let everybody decide for themselves. I think for the most part where I have come over the course of my life, over the course of being pregnant four times, of suffering miscarriages, pregnancy losses, of thinking through all these things, is that there is a lot of room for regulation coming from people with expertise in reproductive health and medical ethics, because this hands off approach has led to so much trauma, so much risk, so much exploitation of women and families. And we don't do a good job of putting boundaries to protect people. But if you think that this pro-life approach is protecting anybody or is sincerely concerned for the women and the families going through this process, then I have a bridge I'd like to sell you.
Beth [00:29:41] The court in Alabama is united on the issue of practically begging the legislature to get involved here. You have on this court, I think, a unanimous bench of justices who would identify as pro-life and who would say they are against abortion, and that life begins at conception and ends at natural death. You have so much language in these opinions that is the fruition of a pro-life movement that has been really focused on getting judges on to courts to do this kind of work, but you do not have unanimity in how this opinion goes down. There is a concurring opinion from the Chief Justice of this court that is very hard to read if you take the separation of church and state seriously. Because he says, look, we have a tough situation to interpret here, except that Alabama voters put in our Constitution that it is the policy of this state to uphold the sanctity of life. And he spends his concurrence basically writing a treatise on what the sanctity of life means and saying Alabama voters picked this not as a secular term, but as a religious one. When Alabama voters consider this referendum, they meant sanctity of life because humans are made in the image of God and ending a life is a violation that incurs God's wrath. That is what his opinion says. But even he in that opinion says we really need the legislature to do something, to say what the sanctity of life means around IVF. And he talks about European countries in which the number of embryos that can be transferred at a time is severely limited. And he talks about how perhaps there are process ways to avoid the risk of so many embryos being stored. Perhaps there are ways to work through this where all parties can kind of come to the table. So even in this radically conservative opinion about why we're doing what we're doing here, there is a call to action for the medical community, the legislature, to learn what they can learn and sit down together and figure out what next steps are after this opinion.
Sarah [00:32:09] If I am finding any hope in the overturning of Dobbs, I do hope that it sort of coalesces around, I think, an increasing understanding in the United States that this hands-off approach we have taken to reproductive technologies has been very, very problematic. Again, whether you're talking about sperm donation or paid surrogacy or IVF, the stakes are so high. The stakes are high when you're talking about pregnancy, either trying to get pregnant or trying to end a pregnancy. The stakes are very, very high. Again, I don't trust any state legislator to be the best source of regulation around this, and unfortunately, I just don't think we have a good understanding in America that, like, we could put other people in charge of these regulations. I guess you could talk about maybe in the administrative state and the executive branch, or maybe some governors could form something like this and give us an example of like, hey, we found another way to really use doctors and, like I said, medical ethicists. And I don't even care if you throw a priest or two in there, alright? Cool. Fine. But this is not working. And when you look at the regulations in other countries, when you see Germany limiting the amount of embryos you can implant or European countries that outlaw artificial insemination, outlaw paid surrogacy-- I would say this about The Handmaid's Tale. You know how The Handmaid's Tale hits? Because we all know deep down that there is something cellular, visceral, evolutionary that happens when somebody wants to get pregnant, or somebody doesn't want to be pregnant. It's big. It's huge. Something is going on and it's motivates so many things. Like it is just this fire either way, right? There was a really good study recently that the rates of depression increase in states that have these hardcore abortion bans because people are forced to have children that they don't want to have, and that has all manner of implications. It's not that I don't think we take it seriously enough in America. In some ways we talk about it all the time in ways that are not productive. It's like we take it serious in all the wrong ways, in all the wrong places.
Beth [00:34:38] I think that's right. And I also think the focus, the sustained long term focus of the pro-life movement on the judiciary is leading us to dark and absurd places. One of the justices on this court wrote an opinion and said, I agree with the outcome of this case, but how we got here is terrible and this cannot be what we're doing. One of the justices, who wrote separately, pointed out that the legal reasoning of the majority here is completely faulty. The dissent in this case comes from a very conservative perspective. The dissent says statutes should not evolve with the times; they should be amended by the legislature. And we're taking a statute that was written before anyone could have even imagined what we're talking about here, and pretending that it applies to this situation and that's wrong. I have deep sympathy for the plaintiffs here, but that's wrong and that's not what we should do. That's not our judicial role. Legally, there's all kinds of stuff going on here that's really interesting. The problem, though, is that the pro-life movement has worked so hard to define what sanctity of life means in a huge variety of laws to pass those constitutional protections, enshrining this perspective into law. And then judges aren't able to judge anymore because the truth of these embryos is, again, that they are like property from the perspective of the hospital and the fertility clinic. And they are like people from the perspective of the folks who hope to have children from them, and they become something different to those people. We have friends who have agonized over what to do with frozen embryos that they are not going to transfer because the initial transfers were successful. These frozen embryos are lots of different things to different people at different moments in time. And that means that in a case like this, a judge needs to have room to judge. And common law negligence claims, I think, give judges the most room to just do equity, to try to do what's fair under the circumstances. I don't think it's that there's no claim here. I just think it's this relentless pursuit of any marriage of egg and sperm is immediately a life, because we don't want to give an inch that could lead to legal abortion, is taking us into terrible terrain.
Sarah [00:37:24] And it's just going to because even if they have room to judge, this is not the purview of justices. These reproductive ethical quandaries are not about law. They are about bigger things. And in a pursuit of legal abortion, I feel like the pro-choice movement has refused to acknowledge that. And I think that that is sort of the problem here, right? Is that in the pursuit of there's nothing, then you also leave people behind who say commonsense-wise, yeah, there's something here. It's alive if it's not alive. So what does that mean? This is only going to get worse. America, following what they felt like was an emotionally satisfying ethical position of the pro-life movement, is going to find itself in some really messy, tragic, terrible situations. I shared that Instagram reel where the woman was doing a bit about pap smears and realized that half the men in the audience didn't realize what a pap smear was. And she was like, "And I'm just realizing that you can vote. You don't know what a pap smear is, and you can vote for this bullshit in the Alabama Constitution when you don't understand what it's like to have a female reproductive system and all the complexities that that contains." Because that's it, right? This whole, like, it's a life, that is a fiction not based in the medical reality of reproduction. It's a fiction not based in the medical reality of reproduction. It just isn't. How far are we going to take this? Are we going to take it that I was legally required to claim the remains of my last pregnancy because that was a life that I was forced to name it and bury it? Is that the next legal reality? Don't tell me. Do not tell me that I'm being hyperbolic. I'm not going to listen to it anymore. When you have women arrested for having a miscarriage and people losing access to IVF in the state of Alabama, do not tell me that hysterical you're overreacting crap another day. I'm not going to listen to it. I'm not going to listen to it anymore.
Beth [00:39:59] Saying that the law cannot reach the vast majority of these questions, which I think is true. I think the law cannot reach the vast majority of these questions. I think there is no role for a judge to judge when life begins. That doesn't mean that the law is powerless in the face of wrongs. There is a way for the court to decide what duty the hospital and fertility clinic owed these plaintiffs, and that they violated that duty here, and some meaningful approach to compensating these plaintiffs for that duty being violated. The law can do that. Judges step in to weird situations all the time where they just work out. What is reasonable under the circumstances? We actually say it that way. What would a reasonable person have done here, or what would a reasonable person think about this? We also have tools to say, well, for this plaintiff, it wasn't just a frozen embryo. For this plaintiff, here's the space they were in. Here's what you need to know about this person in assessing what the damages here. We have lots of ways to do that. We've done it for the whole history of courts where judges have tried to say when something wrong has happened, what is the fair result? That does not require the law to spell out definitively for all time when life begins. And I think if we could just release that desire from the law, it would help us tremendously.
Sarah [00:41:31] I mean, we can. But the pro-life side isn't because that requires splitting the proverbial and literal baby, and they are unwilling to do that. They cannot accept that. They cannot accept that fairness will look like a little bit less than what they think God demands. They're going to be the dog that caught the car. If that is your position that this is what God demands, then you better start beginning to suffer for your faith electorally and otherwise because that is not where most people are at. It's just not. And it sure is not the lived reality of American women all across this country trying to be pregnant, trying not to be pregnant, or just trying to live their damn lives with a vagina. I'm so sorry that that offends you.
Beth [00:42:16] I do think it is worth spending a little bit of time to just skim this opinions, because confronting what the judiciary looks like when it has become completely comfortable with writing about the sanctity of life from a religious perspective, in the course of a lawsuit that decides something that leads to a hospital not offering certain services anymore, we need to be really clear on what's happening here. So we will link those opinions for you to peruse. I don't think you have to read every word. It's a lot. But just scrolling through you will get a sense of how very, very far down the path we are here.
[00:42:55] Music Interlude.
[00:43:04] Sarah, we always end Outside of Politics. One of our listeners, Bethany, called this the exhale of the episode, which I loved. That was a beautiful expression of what we try to do as we end the show here. So you sent an article from The Economist called Why You Should Never Retire. I read it the same day that Ellen showed me this poster she created on the 100th day of school. So they took a picture of her and put a filter on to guess what she might look like at 100 years old. And then there were some questions about what she wanted to be doing in her life. But there was one that she had to fill in that just said, when I am 100, I will be blank. And she wrote, upbeat.
Sarah [00:43:44] I love that.
Beth [00:43:44] And I thought that was really the tone of this piece from The Economist advocating for not retiring, because being in your work is exciting and is part of what keeps life moving in a way that makes you feel vigorous. So I just thought that was so coincidental, that Ellen's perspective on aging is how do I stay upbeat? And this article says maybe you should keep working.
Sarah [00:44:11] And I thought the other day that I should like-- I think I had one of those a long time ago, the aging filter, and then I should put that up somewhere that I can see old Sarah and think about that. Because I spend a lot of time thinking back on childhood Sarah and being true to her. And there was a mental exercise that I learned where you would sit if you were feeling anxious and you would have you in about 10 years down your career sit next to you and say "Hey, this works out. This is fine." And it was really helpful to me in a couple moments to sort of visualize myself sitting beside me going, "Hey, it's going to be okay." But that was always just a little bit. That was still in that sort of success sequence Sarah, like who succeeded. But I kind of like the idea of having 100-year-old Sarah going, "Hey, you have a lot of life in front of you. And if you want to get to where I am, think about what that means." Even something silly like I watched this Instagram reel, Beth, about how you have to learn to fall as you get older. You got to tuck the shoulder, you got to roll, you got to bend your knees. And this woman was like 70 just tucking and rolling and getting back. Tucking and rolling and getting back up on the beach. It was entrancing, is what I'm trying to tell you. And so I think this sense of we are living longer, no doubt about that, and so should we have these conversations about what retirement does to us if it's something we want-- I mean, this is just a short little editorial. It wasn't like a research-based situation. It was just the working gives us purpose. It also aligns with, I think, a lot of what we've been talking about in our outside conversations (Outside Politics on the show) about mental health and treatment inside mental health. And are we just keeping people alive, or are we giving people a reason to live? And that's different, and work filled with purpose can give you a reason to live. You don't want it to become your identity. There's that fine line right between is this my identity? Is it consuming too much, or is it giving me purpose? Is it giving me energy? Is it giving me something- this depth of being?
Beth [00:46:24] Yeah, I thought this piece was on to a really good question in a really clunky way, because this piece is only applicable if you're talking about retirement to certain types of jobs. There's just certain work that you cannot physically do forever. I think most people do not want to be constrained by the clock in the way that most kinds of work constrain you. I don't think there's any point in advocating that everybody do the same job they have now forever. Don't retire from whatever you're doing today. I think that's not it. But I loved this quote, "There is depth in being useful and excitement, even in significantly lower doses than our typical earlier in a career that act as an anti-aging serum." And I think that's true. Where do you feel useful and purposeful? What meets the goals of later life? And that's where I keep thinking about Ellen. Upbeat is a good goal for later life.
Sarah [00:47:20] Listen, guys, the truth is-- here is just the truth, okay? All we're going to be talking about and thinking about is aging. And I don't just mean our two very old presidential candidates, but in some ways that feels like an aberration. And in some ways, you guys, it is the perfect manifestation of where our country is, where much of the globe is. We have an aging globe. It's like Africa. Africa is the only place where people in the countries, the continent overall, is getting younger. It's something that's everywhere. I just feel like it's consuming so much of our conversation. And I don't think it's just about Biden and Trump. I think Biden and Trump are manifestations of the fact that the baby boomers are hitting retirement and aging and increasing numbers every year. And that's not just in America, that is across the globe, that we have people just getting older and older, and it's just consuming everything. And I think it's fine. I think it's good and fine that youth is not the all consuming pedestal upon which our culture or our society or our globe perches. And I am happy and delighted to be thinking about aging and retirement and wisdom and releasing this pursuit of youth in many areas of American life. So every time somebody writes about that I'm thrilled, let's do it. Let's talk about it. And not just because I'm 42.
Beth [00:48:56] Releasing the pursuit of youth makes the linear career progression seem so silly. I think that's what this piece really highlights for me. The notion of you lived this way, your day was dictated by the clock and where you went and what you did while you were there, and what people called you while you were there, and what you told people that you did for a living, and all of that defined you for so many years. And then we're just going to tell you to stop that completely for the rest of your days and not replace it with much of anything except puttering around and occasionally caring for a grandchild. That's really silly. That is a youth-led vision of what life might look like. So to have a conversation led by people who are older, who are saying, yeah, I want to release the components of work life that are just about building wealth so that I can eventually retire. I want to release those components, but I do want to continue to be useful and maybe useful in new ways and more flexible ways. I think that's a social good. I think there is not a social good in just saying we're going to take the youth-led perspective on what a career looks like and reject it. We have so many social problems that are the result of people who have fully retired not doing anything else. That is the demographic who can contribute so much to our civic life. I don't want anybody to just putter around and maybe occasionally watch grandchildren. I want there to be some puttering and some grandchildren and also volunteering and bus driving and mentoring and leading conversations about what the next generation does in its last chapter. There's so much life after that very rigid work life.
Sarah [00:50:50] Yeah. I mean, that's the problem. And I hope this is a language, cultural, social problem we address, which is that we have a false binary even in the title of this article that the only options are retire or don't retire that's like a sort of light switch, when obviously I think that based on the ever aging population, we're going to need more options. We're going to need a spectrum. We love a spectrum. We've had a spectrum of sexuality now. We have a spectrum of many mental illnesses. So I think it's time to start talking about a spectrum of retirement where we're sort of off-ramping, where we say you're entering a new phase. We started rewatching The Sopranos with Griffin. Follow me for more parenting tips. And there's so much of it is consumed with his mother. And him saying it's not a nursing home, it's a retirement community-- which was a joke back then, 25 years ago. And look how far we've come, I think, in our understanding of what assisted living and what retirement communities look like. And now you have the lakes; whereas, 25 years ago it was like, it's a nursing home. You go there to die. Even hospice and the conversation surrounding Jimmy Carter, it seems like we're getting better at realizing this is not a black and white, this is much more complex. I don't think that's a generational shift, I think you just have older generations that things were formulated in a very black and white manner, and we got more information in a bigger, richer, more complex media environment and so we started to see that there were more bigger, richer, complex ways to think about dang near everything, and I hope retirement is one of those things.
Beth [00:52:31] Well, wherever you are on that spectrum, we hope that you feel the depth of being useful. We certainly value you here and value the time that you spend with us. If you found anything helpful in this episode, we would love for you to share it with a friend, maybe text it to your favorite group chat. And if you want to hear more discussions like this, you can join us on our premium channels for our read-along of Democracy in America. We'll be back with you next week. Until then, have the best weekend available to you.
[00:52:57] Music Interlude.
Sarah: Pantsuit Politics is produced by Studio D Podcast Production.
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