Fetal Personhood Is Maternal Punishment

Fetal Personhood Is Maternal Punishment

Fetal Personhood Is Maternal Punishment

When society values the life of a fetus over that of a living person, women pay the steepest price.


We often talk about abortion as if it’s a thing unto itself. If we connect it to anything, it’s usually to sex education, contraception, and other contested ways of preventing unwanted births.

What gets much less attention is the removal of everyday rights from willingly pregnant women. For opponents of abortion, who grant personhood to fertilized eggs, embryos, and fetuses, it’s not a stretch to go from saying “You have to have that baby” to “You have to produce a healthy baby, therefore your wishes, needs, and constitutional rights are of no account.” Moreover, if anything goes wrong, they’re going to assume it’s your fault alone.

Consider forced surgery. You might have thought the issue was settled in women’s favor in 1987, when a court ordered Angela Carder, a terminally ill cancer patient at George Washington University Hospital in Washington, DC, to undergo a C-section intended to give her 26-and-a-half-week-old fetus a better chance at survival. The doctors performed the surgery despite the likelihood that it would shorten Carder’s life; both she and her baby died. In the wake of that horrific event, an appeals court vacated the original order, with more than 100 organizations weighing in for Carder, including the American Medical Association and the American College of Obstetricians and Gynecologists. (On the other side were attorneys for Americans United for Life and the United States Catholic Conference.)

Flash-forward to 2011, when Rinat Dray, who previously had two cesareans that left her debilitated and in pain for months, decided to try for a vaginal birth at Staten Island University Hospital in New York. As her labor progressed, her doctor made the decision, without even a court order, to cut the baby out against her will, slicing into her bladder in the process.

Dray has been suing the hospital for years, so far without success. Despite New York State’s new pro-choice Reproductive Health Act, the Kings County Supreme Court held in October that the state has “an interest in the protection of viable fetal life after the first 24 weeks of pregnancy” that overrides a mother’s objection to medical treatment, “at least where the intervention itself presented no serious risk to the mother’s well being.”

This is New York, not Alabama.

As Lynn Paltrow, the director of National Advocates for Pregnant Women, told me by phone, “The Dray case makes clear that all you need is a doctor who asserts that the fetus is at risk, and suddenly you don’t have any rights.” Around the country, other pregnant women have been threatened with C-sections or had to undergo them against their will.

This is in spite of the fact that the cesarean rate in the United States is 32 percent—far higher than the World Health Organization’s recommended rate of 10 to 15 percent. It’s also in spite of court rulings that under no circumstances can one person be forced to have a medical procedure, such as a bone marrow transplant, to benefit another. What this amounts to is that pregnant women have fewer rights than other people and the fetuses they carry have more.

The criminalization of women’s behavior during pregnancy is another gift from the anti-abortion movement. According to Al Jazeera, more than 1,200 women have been arrested or detained for their conduct during pregnancy since Roe v. Wade was decided in 1973. Personhood, a new documentary by Jo Ardinger, delves into the case of Wisconsin’s Tamara Loertscher, who told a doctor in 2014 that before she knew she was pregnant, she used meth several times a week to self-medicate for depression since she had no health insurance. Loertscher swiftly found herself in a hospital against her will and then in jail. The state even provided her fetus, at that point 14 weeks old, with a lawyer but refused Loertscher’s own requests for legal representation.

Released after 18 days, she now had a record as a child abuser, which made her virtually unemployable in her profession as a nursing aide—even though her son was born in perfect health. And Loertscher was one of the lucky ones; other women have been jailed, charged with murder for having stillbirths, or had their babies taken away.

Cases like this attract only sporadic attention, partly because the pro-choice movement has been (understandably) focused on abortion rights. But it’s also because they tend to involve women who are poor or working class, black or brown, users of drugs or alcohol, smokers, members of minority religions, or other women who can’t or won’t follow the intensive prenatal health regimen of educated professional-class women, who won’t allow a drop of wine to pass their lips once the pregnancy test comes up positive.

In 1991 the Supreme Court ruled that employers could not bar women from jobs deemed dangerous to fetuses, such as factory work involving certain chemicals. How long will that ruling stand if other legal behaviors while pregnant—drinking, smoking, housecleaning, lifting your other children—wind up being criminalized as well? There’s a clear path that leads from the arrest in Alabama of Marshae Jones, whose fetus died after Jones was shot in a fight, to arresting pregnant women for their own abuse at the hands of their partners, and the United States is on it.

Meanwhile, we live comfortably with skyrocketing miscarriage rates among detained immigrants and with the occasional birth by a detained woman alone in her cell—Diana Sanchez in Denver, for example.

Perhaps it’s unnecessary to add that our society does little to help pregnant women have healthy babies, all while purporting to value them. If you’re homeless and giving birth, tough luck. If you have an addiction, chances are there won’t be room in a rehab program. If you live in a rural area, there may not even be a maternity ward nearby. Increasingly, fetal personhood is maternal punishment—and the pro-choice movement shouldn’t forget it.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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