2013-01-17 14:15:15

New report shows how the principle of “personhood” is already criminalizing pregnancy in the US


Regina McKnight was charged with homicide by child abuse after the state said her cocaine use caused her to have a stillbirth. It was later determined that the stillbirth was due to an infection, and her conviction was overturned–after she’d already served eight years in prison.

Laura Pemberton wanted to have a vaginal birth after having had a previous c-section, despite the advice of her doctors. She was in labor at her house, when her doctors sought a court order and dispatched the sheriff to forcibly bring her to the hospital. After an emergency hearing in which she had no legal representation, she was forced to undergo the surgery.

Michelle Marie Greenup was bleeding and in pain, so she went to the hospital. Under interrogation, she admitted she’d recently given birth. She was charged with second-degree murder, until her medical records revealed that she’d likely had a miscarriage at eleven to fifteen weeks because she’d received a Depo-Provera shot.

Melissa Rowland gave birth to twins, but one of them was stillborn. She was arrested on charges of criminal homicide, based on the claim that she  had caused the stillbirth by refusing to have a c-section two weeks earlier.

These are just a few of the stories in the National Advocates for Pregnant Women’s groundbreaking new report on the “criminalization of pregnancy.” The report takes a systematic look at 413 cases between 1973 and 2005 in which pregnant women were deprived of their liberty through arrests or forced medical interventions.

NAPW has also counted at least 250 more cases like these since 2005. Remember Bei Bei Shuai? She’s still being charged with murder. Remember the drug-addicted Alabama mothers being prosecuted under the state’s “chemical endangerment” laws? They recently lost their appeals before the state’s Supreme Court. 

According to the report, the women is these cases were disproportionally poor, black, and living in the South. Most involved an allegation that the woman had used an illegal drug during pregnancy. Other women were arrested for not obtaining prenatal care, or having a mental illness, or refusing a medical intervention like a c-section. Others miscarried or ended their pregnancies on their own, and were charged with violating the state’s laws against self-induced abortions. Interestingly, in most of the cases, there wasn’t any actual harm to the pregnancy at all–and, even when there was, rarely was there any sound scientific evidence that the harm resulted from something the pregnant woman did or didn’t do.

Furthermore, no states actually have laws on the books that hold women liable for the outcomes of their pregnancies. The women were typically charged under criminal laws–like child endangerment and homicide statutes–that were never intended to be used to punish pregnant women in this way.

So what’s the justification then? Personhood. The report explains:

Prosecutors, judges, and hospital counsel argued that the legal authority for their actions came directly or indirectly from feticide statutes that treat the unborn as legally separate from pregnant women, state abortion laws that include language similar to personhood measures, and Roe v. Wade, misrepresented as holding that fetuses, after viability, may be treated as separate persons.

Last time I checked personhood initiatives have been pretty roundly rejected everywhere they’ve been proposed. Yet, nonetheless, the principle behind “personhood”–that fertilized eggs, embryos, and fetuses should be treated as completely, legally separate from the pregnant women–has already worked its way into the legal system.

And, as we’ve always known and this report makes crystal clear, the consequences–which are already being felt by the most vulnerable women under our racist criminal justice system–go far beyond outlawing abortion or even birth control. As Lynn Paltrow notes, personhood initiatives would “subject all pregnant women to surveillance, arrest, incarceration, and other deprivations of liberty whether women seek to end a pregnancy or not.”

Because there’s simply no way to give fertilized eggs full constitutional rights without taking some away from pregnant women.

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