Charting the Course of Reproductive Rights, Forty Years on

January 18, 2013
by E. Sebastian Arduengo
This month in the American Journal of Public Health, Lynn Paltrow, President of the National Advocates for Pregnant Women, published an article paralleling women’s deteriorating access to reproductive care with the system of mass incarceration described in Michelle Alexander’s book The New Jim Crow. In the article, Paltrow argues that Roe v. Wade protects the rights of all pregnant women and, if the trajectory of the law is unchanged, women who make decisions that are even unintentionally adverse to their pregnancies will likely end up in jail.
A recent study conducted by National Advocates for Pregnant Women (NAPW) found that between the time Roe was decided in 1973 and 2005 there were 413 criminal and civil cases involving the arrest or detention of pregnant women. The analysis of the cases showed that the legal claims used to justify these deprivations of liberty were founded on arguments that the state should be empowered to treat embryos and even fertilized eggs as legally separate from the mother. The study showed that the anti-abortion measures that were the basis of these prosecutions posed a threat to all pregnant women, not just those seeking abortions. For example, when a woman in Utah gave birth   to twins, one of whom was stillborn, she was arrested and charged with homicide on the grounds that her decision to attempt a natural birth instead of a cesarean section resulted in the death of the fetus. Another pregnant woman in Texas smoked marijuana to ease herself through pregnancy and, after giving birth, was charged with delivering a controlled substance to a minor. NAPW’s study also found that for minority women the chances of having a run-in with the law due to a pregnancy are much higher.
As “personhood” measures advance through statehouses across the county, legislators are answering the question of whether a woman’s civil rights end during pregnancy with a resounding “yes.” What’s more, those rights are coming to an end at earlier and earlier points in pregnancy.
Far too often, the debate on reproductive rights is framed as a matter of choice vs. life, implying that there are only women that want to end their pregnancies and women who want to carry to term. But a debate on those terms misses the fact that personhood measures can affect women who have no intention of ending their pregnancies but only want to make medical decisions about their bodies, including how to give birth.
Next week this issue, among others, will be discussed in a panel discussion on Jan. 23 at Georgetown University Law Center in an event titled “Reproductive Rights 40 Years After Roe,” which ACS is co-sponsoring with the National Women’s Law Center and the Planned Parenthood Federation of America. See here for event and registration information.
For more analysis of personhood laws and other obstacles to women’s reproductive health see the ACS Issue Brief, “A Progressive Agenda for Women's Reproductive Health and Liberty on Roe v. Wade's Thirty-Fifth Anniversary.” In it Indiana University Maurer School of Law professor Dawn Johnsen notes that the Supreme Court upheld a federal abortion ban, notwithstanding the absence of an exception to protect women's health, based in part on unsubstantiated and entirely false assertions that abortion is “bad” for women and that women need to be protected from their own reproductive decisions. Johnsen also argues that pro-choice progressives need a vision and long-term strategic plan and offers a series of recommendations toward that end.