On Tuesday, January 15th, the Journal of Health Politics, Policy and Law will publish our study, “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health.” This study makes clear that post-Roe anti-choice and “pro-life” measures are being used to do more than limit access to abortion; they are providing the basis for arresting women, locking them up, and forcing them to submit to medical interventions, including surgery. The cases documented in our study through 2005, as well as more recent cases, make clear that 40 years after Roe v. Wade was decided, far more is at stake than abortion or women’s reproductive rights. Pregnant women face attacks on virtually every right associated with constitutional personhood, including the very basic right to physical liberty.
Our study identified 413 criminal and civil cases involving the arrests, detentions, and equivalent deprivations of pregnant women’s physical liberty that occurred between 1973 (when Roe v. Wade was decided) and 2005. Because many cases are not reported publicly, we know that this is a substantial under count. Furthermore, new data collection indicates that at least 250 such interventions have taken place since 2005.
In almost all of the cases we identified, the arrests and other actions would not have happened but for the fact that the woman was pregnant at the time of the alleged violation of law. And, in almost every case we identified, the person who initiated the action had no direct legal authority for doing so. No state legislature has passed a law that holds women legally liable for the outcome of their pregnancies. No state legislature has passed a law making it a crime for a pregnant woman to continue her pregnancy to term in spite of a drug or alcohol problem. No state has passed a law exempting pregnant women from the protections of the state and federal constitution. And, under Roe v. Wade, abortion remains legal.
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Yet, since 1973, many states have passed feticide measures and laws restricting access to safe abortion care that, like so-called “personhood” measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman. We found that these laws have been used as the basis for a disturbing range of punitive state actions in every region of the country and against women of every race, though disproportionately against women in the South, low-income women and African-American women.
Women have been arrested while still pregnant, taken straight from the hospital in handcuffs, and sometimes shackled around the waist and at the ankles. Pregnant women have been held under house arrest and incarcerated in jails and prisons. Pregnant women have been held in locked psychiatric wards, as well as in hospitals and in drug treatment programs under 24-hour guard. They have been forced to undergo intimate medical exams and blood transfusions over their religious objections. Women have been forced to submit to cesarean surgery. They have been arrested shortly after giving birth while dressed only in hospital gowns. And, despite claims by some anti-choice activists that women themselves will not be arrested if abortion is re-criminalized, women who have ended their pregnancies and had abortions are already being arrested.
Consider the following:
- A woman in Utah gave birth to twins. When one was stillborn, she was arrested and charged with criminal homicide based on the claim that her decision to delay cesarean surgery was the cause of the stillbirth.
- After a hearing that lasted less than a day, a court issued an order requiring a critically-ill pregnant woman in Washington, D.C. to undergo cesarean surgery over her objections. Neither she nor her baby survived.
- A judge in Ohio kept a woman imprisoned to prevent her from having an abortion.
- A woman in Oregon who did not comply with a doctor’s recommendation to have additional testing for gestational diabetes was subjected to involuntary civil commitment. During her detention, the additional testing was never performed.
- A Louisiana woman was charged with murder and spent approximately a year in jail before her counsel was able to show that what was deemed a murder of a fetus or newborn was actually a miscarriage that resulted from medication given to her by a health care provider.
- In Texas, a pregnant woman who sometimes smoked marijuana to ease nausea and boost her appetite gave birth to healthy twins. She was arrested for delivery of a controlled substance to a minor.
- A doctor in Wisconsin had concerns about a woman’s plans to have her birth attended by a midwife. As a result, a civil court order of protective custody for the woman’s fetus was obtained. The order authorized the sheriff’s department to take the woman into custody, transport her to a hospital, and subject her to involuntary testing and medical treatment.
As disturbing as our findings are, this study also provides a basis for building a shared public health and political agenda that includes all pregnant women. The current public debate overwhelmingly focuses on the issue of abortion and interference with one kind of right: the right to end an unwanted and untenable pregnancy. This study, however, confirms that if passed, so called “personhood” measures would: 1) provide the basis for arresting pregnant women who have abortions; and 2) provide state actors with the authority to subject all pregnant women to surveillance, arrest, incarceration, and other deprivations of liberty whether women seek to end a pregnancy or not.
Furthermore, the study demonstrates that there is no way to add fertilized eggs, embryos, and fetuses to state constitutions or to the United States Constitution without removing all pregnant women from the community of constitutional persons. These measures create a “Jane Crow” system of law, establishing a separate and unequal status for all pregnant women and disproportionately punishing African-American and low-income women.
For example, last week, a Tennessee woman who had been in a car accident was tested to see if she had been driving under the influence of alcohol. According to local press, her blood alcohol content was well below the legal limit. Nevertheless, because she told a police officer that she was four months pregnant, she was arrested and taken to jail. Tennessee apparently recognizes a special crime reserved just for pregnant women: driving whilenot intoxicated.
We are confident that most people in the United States, regardless of their views on abortion, do not want to see pregnant women subjected to a separate and unequal system of law as a result of “pro-life” measures. To that end, we call for a culture of life that values all women, including those who give birth to that life, and recommend:
- The rejection of “personhood” measures;
- A moratorium on new feticide laws and a fair and open inquiry into whether such laws—passed with the promise of protecting pregnant women and fetuses—have actually reduced violence against pregnant women or rather increased legal surveillance of women;
- That health care providers ensure that pregnant women are afforded the same confidentiality, respect, and dignity extended to other patients;
- That lawmakers adopt policies that promote women’s health and remove barriers to family planning and contraceptive services, abortion services, birthing options, and effective and humane drug treatment, and address the stark racial and economic inequalities that are perpetuated by the United States war on drugs and our system of mass incarceration;
Finally, we call upon legislative authorities and others to affirm the personhood of pregnant women, ensuring that upon becoming pregnant and through all stages of pregnancy, labor, and delivery, women retain their civil and human rights.