It is no secret that this has been a banner year for laws attempting to recriminalize abortion. During the first six months of 2013, states adopted 43 provisions to ban abortion, impose medically unnecessary restrictions on providers or otherwise regulate the procedure into nonexistence.
But framing the current assault on reproductive rights exclusively in terms of abortion rights erases another, equally dangerous reality faced by women who intend to carry their pregnancies to term: laws that establish personhood for fertilized eggs, embryos and fetuses aren't just a threat to women's access to abortion -- they are also being used to criminalize and incarcerate pregnant women.
From the forced detention of pregnant women suspected of substance dependence to the use of "fetal homicide" laws against women who experience miscarriages and stillbirths, anti-choice lawmakers and groups like National Right to Life -- so long the self-declared “champions” of motherhood -- are waging a war on women hoping to become mothers.
“The arguments being used to support the recriminalization of abortion not only have implications for the reproductive rights of women who want to continue their pregnancy to term,” Lynn Paltrow, executive director of the National Advocates for Pregnant Women, told Salon. “The impact will be -- the impact has already been -- to deny pregnant women their very personhood. What’s at stake is not just reproductive rights, but virtually every right we associate with constitutional personhood.”
The available data on punitive state actions against pregnant women more than bears this out.
According to research compiled by NAPW, between 1973 and 2005, there have been 413 documented cases in which a woman’s pregnancy was a necessary factor in criminal charges brought against her by the state. In these cases and the 200 others that have been documented since 2005, women have been deprived of due process, the right to legal counsel, freedom of movement and other basic constitutional protections simply because they were pregnant.
"What we found in our research is that most of these actions were not authorized by any state law, but based on prosecutors using post-Roe antiabortion regulation to argue that any reference to 'child' in a child endangerment statute should include fertilized eggs, embryos and fetuses," Paltrow said.
A recent New York Times story highlighted the case of Alicia Beltran, a pregnant woman in Wisconsin who was ordered by a judge to spend 78 days in a treatment facility or face incarceration because her doctor accused her of endangering her fetus through suspected drug use. Beltran, brought to the court in shackles, didn’t have a lawyer during the proceedings -- but her fetus did.
Across the country, hundreds of women like Beltran have been arbitrarily detained and forced to undergo invasive medical treatments because they were alleged to have used even trace amounts of a controlled substance. And like Beltran, many are low-income women who don't have the financial resources or access to healthcare necessary to get treatment. It bears mentioning, then, that Beltran's home state of Wisconsin is one of several to reject the Medicaid expansion under the Affordable Care Act, provisions of which would make treatment more accessible to women who are currently left with little choice but to go without such care.
The criminal prosecution of pregnant women who use or are suspected of using drugs has been denounced by medical groups like the American College of Obstetricians and Gynecologists, the American Society of Addiction Medicine and the American Psychiatric Association. Medical experts and healthcare providers across the country have noted that prosecuting these women doesn't improve health outcomes, but does produce a chilling effect that keeps women from seeking treatment for fear of being reported by their doctors and detained by law enforcement.
"Women know that if they are using and seek treatment, there is a chance that they may be forcibly put in jail," Kathy Hartke, M.D., Wisconsin Section Legislative Chair of the American Congress of Obstetricians and Gynecologists, told Salon.
In addition to depriving them of physical liberty, such laws also leave pregnant women without access to prenatal and other crucial healthcare -- conditions that completely defy the stated "purpose" of laws like Wisconsin's so-called cocaine mom act, which Beltran and patients of Hartke were prosecuted under.
"I had a patient a few years ago who presented in need of care, but by the time I arrived at the emergency room, the police had already been called," Hartke explained. "She was taken to jail without an attorney to represent her, though her fetus was designated a legal guardian. She was then put into a locked mental health ward at another hospital, where she was denied prenatal care for over a month." While detained, this woman lost her job, and her husband had to take a leave of absence from his job in order to care for their 2-year-old child.
"She was given no treatment for her withdrawal symptoms," Hartke continued. "But she was given allergy medication, sleep medication and Xanax, which left her so sedated that she could barely speak."
This woman's experience in detention is far from unique, she added. "The treatment I have seen in these jails is abusive."
It's in these cases that one can see the clear intersections and dangerous consequences of the so-called war on drugs, the ongoing assault on women's reproductive rights and the dismal state of access to healthcare in the United States. And it is overwhelmingly and disproportionately African American and low-income women who are left trapped by these convergences; a “Jane Crow system of law that establishes a second class status for all pregnant women," according to Paltrow.
While a majority of these cases involve the suspicion of substance dependence, many states have also brought charges against pregnant women for miscarriages and stillbirths. In one 2010 case, a pregnant mother of two fell down a flight of stairs and, after calling paramedics to check on the health of her fetus and expressing uncertainty about whether she should carry the pregnancy to term, was charged with attempted homicide under Iowa's feticide law. In another, a Utah woman suffered the stillbirth of one of her twins, and was arrested and charged with criminal homicide based on the state's allegations that her decision to delay cesarean surgery was the cause of the stillbirth.
Such presumptions of criminality are only possible in a legal system that has been thoroughly permeated and shaped by anti-choice rhetoric; a system fed by a political culture in which lawmakers are rewarded for promoting pseudoscience and ignoring medical experts on issues of women's reproductive healthcare. Which is to say, a legal system and political culture exactly like ours.
Behind the debate about separate rights for fertilized eggs, embryos and fetuses lies the question of the status of women in the United States, Paltrow said. "We keep having this debate about the status of fetuses as if it doesn't affect the status of women. The personhood that is at stake here is women's."
"If we want to build a culture that values life," Paltrow was quick to add, "doesn't that include the lives of pregnant women?"