As Amy Coney Barrett sits poised to assume a life-long appointment to the highest court in the land, we will likely see protections provided under Roe all but disappear. But this is just the beginning. Roe is just the first hurdle on the way to the true goal of anti-choice advocates: a constitutional amendment for full personhood rights from the moment of conception.
The plan is to send the issue of abortion back to states, many of whom are already poised to amend state constitutions and hopefully, they believe, eventually the federal constitution. This would go much further than overturning Roe, or even outlawing abortion completely–it would turn every pregnancy into a potential crime.
It’s not possible for one body to hold two equal sets of rights, which means that if a zygote is granted full personhood rights, those rights must be removed from the pregnant person. The consequences of pregnant people losing their personhood rights are wide ranging, brutal, and disproportionately harm vulnerable populations.
It’s not hyperbole to say that there are good reasons that folks are wearing those Handmaids Tale costumes.
Roe was meant to be a middle ground decision
For those shaky on their reproductive history, it is important to know that Roe was the compromise decision, intended to strike a balance between pregnant persons’ constitutionally enshrined personal freedoms and the desire for states to encourage birth as the primary pregnancy outcome.
Roe found that the right to access abortion was worthy of the highest level of constitutional protection but limited that freedom to the first two trimesters, allowing states to restrict abortion access in the last trimester if desired. Roe is already a shell of that initial decision. Immediately after passage, anti-choice advocates got to work reducing Roe protections, first targeting poor women and young women, and introducing barrier after barrier to abortion access.
Since 2000, we have seen the number of states considered ‘hostile’ or ‘very hostile’ to abortion quickly rise from just 4 to 21. Currently 58% of women of reproductive age live in states considered hostile to abortion access.
While most eyes have been on Roe, there have been two major Federal legal trajectories that have wreaked havoc on reproductive rights.
We have seen a pregnant person’s bodily autonomy rights shrinking and ‘fetal rights’ increased at earlier and earlier gestational periods, tipping the balance of basic rights steeply away from pregnant persons and towards cell clusters. This is relatively new– happening mostly in the past 15 years– and is a very radical turn. The results have been stark and frightening: the incarceration of hundreds of people, and the deaths of many others, while most of us are not even paying attention.
The elevation of ‘fetal rights’ leads to…
Over 500 years of Western legal precedent and the teachings of every major religion have upheld that life begins at birth, as do associated rights. While we may be accustomed to hearing ‘life begins at conception’, this is actually a quite new and quite radical idea, with terrifying consequences once more deeply examined.
In 2003, the body of Laci Peterson and her fetus washed up on the shores of San Francisco. Peterson had disappeared on Christmas eve: 38 weeks pregnant, pretty, white—the media loved this case, and hated her cheating husband Scott, who was eventually convicted of the crime.
This case was the foundation for the Unborn Victims of Violence Act which was passed in 2004 and upheld by SCOTUS in 2007. There is good public reasoning behind wanting to protect pregnant persons—as we know they are at incredible risk for violence. Roughly half of domestic violence cases begin during pregnancy, with violence often focused on the stomach.
Pregnant women are twice as likely to experience domestic violence than their non-pregnant counterparts. Each year an estimated 97 pregnant women are murdered in the US, most often by an intimate partner.
While there is some good intention behind the UVVA, it was fought deeply by reproductive rights advocates who saw the writing on the wall—that pregnant people would be prosecuted under these statutes and the law would be used to increase the ability of the state to intervene in pregnancy decisions ‘on behalf of the fetus’. The reproductive rights advocates were right. Over 400 pregnant people have been prosecuted in Alabama alone since 2006.
…A reduction of carrier rights
In 2007, The US Supreme Court upheld the so-called ‘partial birth’ abortion ban which did not provide an exception for the life of the carrier. This set up a new precedent which eroded a major foundation of Roe—a pregnancy carrier’s right to their own life. With a pregnant person’s right to life eroded, and fetal personhood rights extended, we have seen an onslaught of fast, state-level policy changes which have had chilling consequences.
Between the passage of Roe and the year 2005, there were 413 documented cases of government intervention due to pregnancy status. These cases took place in every region of the country, and to women of all races, though Black women experienced the highest rates of interventions. The majority of pregnant people affected were poor and had been victims of previous domestic violence. In 77% of the court cases, a man involved in the pregnancy was not mentioned, and only the carrier bore legal consequences.
More than 40+ laws have been enacted across the country to prosecute carriers for ‘crimes against their pregnancy’. Often these laws are passed in states with anti-choice politicians and with overzealous prosecutors who are looking to make a name for themselves. Even people who reside in states supportive of choice can find themselves prosecuted through non-abortion-related legal statues, such as ‘mishandling of human remains’ or ‘failure to disclose a birth’.
Since 2006, more than 800 women on record between 2006-2015 were subject to extreme government interference, more than double the number of interventions of the previous 30+ years
As states have increased their efforts to restrict reproductive care, reduce carrier rights, and increase fetal protections, more and more pregnant persons will be faced with legal risk, particularly while interacting with the medical system. The American Medical Association has come out strongly against pregnancy criminalization efforts, as those risk deterring pregnant people in need of medical attention away from care. Even some anti-choice advocates have come out strongly against pregnancy criminalization, as they believe it disincentivizes pregnancy and birth—who would want to bear such intense risk to their life and liberty? –they argue.
So what do governmental interventions in pregnancies look like? Arrests, incarceration, and increased sentencing within the legal system and forced health and surgical practices within the medical system.
These cases include situations like a miscarriage caused by an accidental fall down the stairs which resulted in a murder charge on the pregnant woman; a woman who refused a cesarean section having the police called on her. The baby was delivered in good health, but the mother faced attempted murder charges.
Another instance saw a woman seeking voluntary addiction treatment being locked in an inpatient facility against her will, away from her husband and son, and denied prenatal care.
One ill young woman was ordered to have a forced cesarean section at 26 weeks. Both she and the baby died as a result.
Many of these cases have been successfully argued in court that the carrier’s fundamental personhood rights had been violated. Rights found to have been denied include Life, Physical Liberty, Bodily Integrity, Due Process, Equal Protection, and Religious Freedom. Those who experience these draconian interventions are predominately young, poor, and non-white. This has been an exceptionally brutal avenue of control and intimidation by the state.
An unavoidable trade off in extending fetal protections comes at the cost of the fundamental and constitutionally-protected rights of pregnant persons.
Further, states have not been shown to make better health decisions than the carrier. States supportive to reproductive freedom tend to have significantly better health outcomes for pregnancy, infants, children, and families. Pregnant individuals are simply in a better position to meet their unique family needs rather than relying on or enforcing unnecessary, brutal, and traumatic legal and or medical intervention.
Pregnancy loss is quite common, with anywhere between 15-50% of pregnancies ending due to natural loss. There is also no reliable way to know if a loss is natural or induced: medically they present in exactly the same way. Yet in order to enforce either anti-abortion or fetal harm laws, it would be necessary to criminally investigate pregnancy loss more broadly. The vast majority of government interventions have started in the hospital bed.
The consequences of such criminalization are many. We are likely to see people avoid necessary medical care in order to reduce their exposure to punishment for a normal biological process. It is a no-win situation during a time of extreme personal duress.
Carriers deal with natural loss in a myriad of ways, but a culture of silence and shame surrounding a loss or termination of a pregnancy persists. It is common for carriers to self-examine for wrongdoing, which puts them at extreme vulnerability to falsely admit guilt during a criminal interrogation. While a pregnancy loss can be a sad and tragic event, the addition of a criminal investigation is likely to compound the trauma significantly.
The protections provided by Roe v. Wade have been under attack for decades, and with the appointment of Amy Coney Barrett, they will likely all but disappear. The long-held goal of anti-choice advocates is to first return abortion regulation to the states, many of whom already have total bans on the books in place for the specifically designed to essentially outlaw abortion. Outright bans are reflections of an extremist point of view which would make no exceptions for circumstance and require that people experiencing miscarriages and stillbirths could face a police investigation.
This should be terrifying to anyone who believes they are in a better position to make medical decisions than the government.
The question remains: What can we do in the face of these eventualities?
It is well past time all of us take an active role in ensuring pregnant persons are protected from government interference. There are strategies that can reverse our current trajectory, and each of us can play an important role in protecting our most vital personal freedoms.
Protective state policy
With such a hodgepodge of rules used to prosecute pregnant people, no matter their intended pregnancy outcome, we can press state leadership to adopt specific protective measures. We already protect buildings, doctors, and protestors; perhaps we can protect the persons whose rights are repeatedly being violated? California Assembly Members Wicks and Chu introduced just such legislation in Feb 2019, AB 1189, that guarantees that no pregnant person would be be criminally investigated, arrested, prosecuted or incarcerated for seeking or obtaining a self-managed abortion or for experiencing any pregnancy loss. Unfortunately the bill died in January of this year. We should reach out to our elected officials and press such efforts in every state as well as nationally.
Medical centers adopt policies of non-police intervention related to pregnancy
Many of the most egregious cases of police interference for pregnancy outcomes start in the hospital room. We can advocate for hospitals to adopt policies of non-police intervention, circumventing legislation by targeting medical institutions who have the ability to provide critical care and who come with the greatest legal risk. If medical providers are able to reduce the legal risk, they will be able to encourage care access when it’s most critical.
With the growth of Catholic hospital networks, religious dogma on ‘life’ may come into play. However, the Catholic church also has a long history of protecting subjects from police prosecution–even when those people have committed a ‘sin’ in the church’s eyes. Hospitals who want to encourage care for pregnant people in all circumstances are potentially persuadable to these policies. However, in states with in-utero mandated reporting laws, it may not be feasible.
Increase abortion access networks
There are nonprofits and advocacy groups who provide financial support and coordination to people seeking a legal abortion that is inaccessible to them. However, as we see states become more and more restrictive, and the possibility of full state bans becoming ever more plausible, our current networks are under-prepared and under-resourced for the rapid expansion of need. We can support the expansion of these critical organizations with our time and money.
While this strategy does decrease legal risk for women seeking abortion care, it may have the opposite effect on women experiencing a natural or accidental loss. Through networks, people seeking an abortion will be able to access safe medical care in another state, but those who experience a natural or accidental pregnancy loss will have to weigh seeking traditional medical care and the potential legal risk it could bring.
Talk about it!
A lot of the success of the anti-choice movement has been in their messaging. They have framed themselves as heroes and LOVE to talk about their righteousness. Pro-choice advocates are much quieter, and as this piece demonstrates, our work needs to be much more complex, nuanced, which can lend itself to being mischaracterized or misunderstood. Anti-choice advocates have framed the narrative as sad and uncomfortable, which makes folks want to avoid it and look away. They have succeeded in removing the pregnant person from much of the discussion of rights, and we need to recenter pregnant people, their rights and needs, in this conversation. We need to be brave and hold this rampant injustice above our desire to ignore suffering.
Problems don’t disappear just because we ignore or look away from them. Time to step up and engage.