The 40th anniversary of the U.S. Supreme Court’s Roe v. Wade decision, which established a woman’s constitutional right to safe and legal abortion, passed last January 15 with a lot of crowing — from the anti-choice side. Time magazine ran a cover story that announced that advocates for women’s right to reproductive choice won a big victory with Roe v. Wade — “and they’ve been losing ever since.” Over those 40 years, the Supreme Court has moved farther and farther Right and given states leeway to create more and more so-called “reasonable restrictions” on women’s right to choose. A continued campaign of terrorism — there’s no other word for it — against abortion providers has intimidated doctors, nurses and clinic staff and forced women who want abortions to get them in conditions which resemble maximum-security prisons.
The terror campaign as well as the increasing number of legal restrictions on abortion providers has discouraged medical students from entering the field. The number of abortion doctors in the U.S. has been trending steadily downward, as the older generation with living memories of the pre-Roe years die off (naturally or otherwise). Younger doctors either choose not to buck the organized terrorism of the bitterly misnamed “pro-life” movement or, if they want to train to perform abortions, can’t find medical schools willing to teach them. Pro- and anti-choice organizations have propaganda duels over the poll numbers, since on abortion, more so than most other issues, how the polls turn out depends largely on how the questions are framed. What’s clear, though, is that most Americans are somewhere in the middle: supportive of some reasons women choose to have abortions, opposed to others and varying widely over whether they think government has the right to ban women from having abortions for reasons they personally don’t approve.
In recent years the anti-choice movement has strongly pushed for so-called “personhood” laws, which would define the word person under the U.S. and state constitutions to include “every human being from the moment of fertilization, cloning, or the functional equivalent thereof.” That language is from an initiative that faced voters in Mississippi — not exactly a bastion of equal rights — in November 2011 as Proposition 26. Much to the surprise of people elsewhere in the country on both sides of the abortion debate, Proposition 26 actually lost. Enough Mississippians were concerned that the law would go farther than making abortion illegal again — assuming, as its proponents apparently did, that the current Right-wing majority on the Supreme Court would have used it as a pretext to reverse Roe — it could also have outlawed some forms of birth control and even in vitro fertilization.
In addition, according to National Advocates for Pregnant Women (NAPW) executive director Lynn M. Paltrow, opponents of Proposition 26 and similar measures in other states “argued that such measures would create legal grounds for forcing medical interventions on pregnant women and punishing those who … suffered miscarriages and stillbirths.” Though the proponents of 26 dismissed such concerns as “scare tactics,” a study Paltrow and her collaborator, Fordham University professor Jeanne Flavin, released on January 15, 2013 — the 40th anniversary of Roe v. Wade — said that not only could pregnant women be treated as criminals if laws like 26 went into effect, they already are.
“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,” Paltrow explained in a press release announcing the study on the NAPW Web site (http://advocatesforpregnantwomen.org/blog/2013/01/new_study_reveals_the_impact_o.php). “Because many cases are not reported publicly, we know that this is a substantial undercount. Furthermore, new data collection indicates that at least 250 such interventions have taken place since 2005.”
What’s most horrifying about the information Paltrow and Flavin collected is not only that women are being arrested, jailed or otherwise punished for conduct that wouldn’t be illegal if they weren’t pregnant, they’re being dealt with by the criminal justice system even in the absence of any specific laws. “In almost every case we identified, the person who initiated the action had no direct legal authority for doing so,” Paltrow explained. “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.”
Yet, according to Paltrow, “many states have passed anti-abortion and feticide measures 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. … 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.”
Paltrow and Flavin describe five such cases in their paper. One was Regina McKnight, a 21-year-old African-American whose pregnancy unexpectedly ended in a stillbirth. Though later tests showed that the stillbirth was the result of an infection, McKnight was accused of causing it by using cocaine. She was put on trial, convicted after only 15 minutes of jury deliberation, and sentenced to 12 years in prison. McKnight had actually been in prison for eight years when, in 2008, the South Carolina Supreme Court unanimously overturned her conviction on the ground that her attorney hadn’t called experts who could have testified that recent studies showed “that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor.” Nonetheless, rather than face a second trial and possibly an even longer sentence, McKnight pleaded guilty to manslaughter and was sentenced to time served, which means she got out immediately but will be branded as a felon for the rest of her life.
Laura Pemberton, a white woman in Florida, ran afoul of the pregnancy police when she tried to bear a child naturally after having had a cesarean section when her previous child was born. Her doctors got a court order to force her to go through a C-section for her new child, too. “A sheriff went to Pemberton’s home, took her into custody, strapped her legs together, and forced her to go to a hospital, where an emergency hearing was under way to determine the state’s interest in protecting the fetus still inside her,” Paltrow and Flavin wrote. “While lawyers argued on behalf of the fetus, Pemberton and her husband, who were not afforded the opportunity to be represented by counsel, were allowed to express their views as she was being prepared for surgery.” The judge ordered Pemberton to have the C-section, and when she later sued over the violation of her civil rights, she lost on the ground “that the state’s interest in preserving the life of the fetus outweighed Pemberton’s rights under the First, Fourth and Fourteenth Amendments.” Since then, Laura Pemberton has had three more children, all born naturally.
Rachael Lowe, a 20-year-old woman in Wisconsin, voluntarily went to Waukesha Memorial Hospital for treatment for an Oxycontin addiction. The staff responded by reporting Lowe to authorities under Wisconsin’s “cocaine mom” law, which allows the state to arrest a pregnant woman and keep her in custody if authorities believe the “expectant mother habitually lacks self-control in the use of alcohol[ic] beverages, controlled substances or controlled substance analogs.” Lowe was arrested and taken to St. Luke’s Hospital in Racine, more than an hour’s drive from the home she shared with her husband and two-year-old son. At St. Luke’s she was held in the psychiatric ward, given no prenatal care and prescribed Xanax and other psychotropic drugs. Lowe wasn’t appointed an attorney until she’d already been in custody for 12 days, and even after a judge ruled that she should be released, she was kept in the hospital under state control for several more days. Even after she was released, she was kept under surveillance for the rest of her pregnancy and forced to provide urine samples to law enforcement. As a result, Lowe lost her job and her husband had to take a leave of absence from his.
Martina Greywind was a 28-year-old homeless Native American in Fargo, North Dakota who was arrested when she was 12 weeks pregnant and charged with “reckless endangerment” of her fetus because she was allegedly inhaling paint fumes. She spent two weeks in the Cass County Jail before she was released so she could go to a medical appointment. She then had an abortion, in defiance of anti-choice protesters who were trying to force her to carry the pregnancy to term. Then she filed a motion to dismiss the charges, which the state agreed to on the grounds that, according to one of the district attorneys, it was “no longer worth the time or expense to prosecute her.”
Michelle Marie Greenup was a 26-year-old African-American woman in Louisiana who encountered the pregnancy police after she’d had a miscarriage. She went to a hospital complaining of bleeding and stomach pains, and the doctors taking care of her suspected she’d recently had a baby and contacted authorities. She was grilled by police and forced into a “confession” that her baby had been born alive and had then died because she hadn’t cared for it properly. Eventually Greenup’s attorney got her medical records, which revealed she’d been given Depo-Provera — a drug notorious for causing miscarriages — and her fetus had been no older than 12 to 15 weeks. Nonetheless, she wasn’t released from police custody until she pled guilty to a misdemeanor charge of “improper disposal of human remains.”
Paltrow argues that these five cases, and others she and Flavin uncovered during their research, mean that women won’t be just as bad off if Roe v. Wade is overturned as they were before it became law. Rather, she says it will be worse. In an article called “Roe v. Wade and the New Jane Crow: Reproductive Rights in the Age of Mass Incarceration,” Paltrow notes that before 1973 women were rarely prosecuted for having abortions. Rather, they were generally pressured into turning state’s evidence against the doctors or other providers who had performed the procedure. But if Roe is overturned now and states are free to make any laws they wish restricting women’s reproductive choices, it’s going to be considerably harder on women than it was pre-Roe.
One reason is that this country is simply sending more people to prison for everything than it was before 1973. In the 1970’s the U.S. had about 300,000 people in prison, and very few of them were women. Between 1970 and 2000, the number of people in U.S. prisons and jails rose a whopping 500 percent, compared to a 40 percent increase in the country’s overall population. Today over 1.5 million people, including 200,000 women, are held in American prisons and jails, and another 4.8 million are under probation, parole or some other form of criminal justice supervision. According to Paltrow’s “New Jane Crow” article, two-thirds of all incarcerated women in the U.S. have at least one minor child, and 5 percent are pregnant when they start their imprisonment.
“This new era of mass incarceration,” Paltrow writes, “ … makes it far more likely today than in 1973 that if Roe is overturned women will themselves be arrested and jailed.” As she points out, the use of prison or the threat of prison as a weapon to control women’s reproductive choices is a part of the massive growth in America’s prison-industrial complex, “largely accepted by the public, defended by an army of lobbyists, and justified by a war on drugs deeply rooted in America’s history of slavery and racism,” including the growth of a private, for-profit prison industry that has a vested interest in lobbying for “tough on crime” laws and ever-longer sentences in order to grow the market for their services.
But it’s also a sign of the return of a much older attitude towards human reproduction and women’s role in it. It’s as old as the “seed and soil” myth that, in the era before genetics existed as a science, held that a baby’s heritage from its parents came exclusively from the male. The idea was that the man planted the seed and the woman was simply the soil in which it grew. Though any modern scientist would regard this as not only wrong but ridiculous, it’s clearly an attitude believed in, consciously or unconsciously, by many people in the radical Right. We saw glimpses of it when two Republican candidates for U.S. Senate in the 2012 elections, Todd Akin of Missouri and Richard Mourdock of Indiana, both made their outrageous statements about women, rape and abortion; Akin said that women don’t get pregnant when they’re raped because “the female body has ways to try and shut that whole thing down,” and Mourdock said if a woman does get pregnant from a rape, she should regard that as “God’s gift.”
It shouldn’t be surprising that a movement as tone-deaf to its own hypocrisy as the modern-day American Right should on the one hand denounce Social Security, Medicare and welfare as examples of the “nanny state” through which government controls people in the guise of “helping” them, while at the same time they embrace a “nanny state” that brazenly tells pregnant women what they may or may not do with their bodies. Paltrow’s research reports pregnant women being arrested while driving with a level of alcohol in their system below the legal definition of intoxication — something that obviously wouldn’t be considered a crime if done by a man or a non-pregnant woman. Women have been prosecuted for using drugs while pregnant; for seeking treatment for drug abuse while pregnant; for having abortions, miscarriages or stillbirths; and for either seeking or rejecting medical treatment.
The whole message behind this, as Paltrow notes, is that women in general and pregnant women in particular be put in “a second-class status that will not only deprive them of their reproductive rights and physical liberty … but also effectively strip them of their status as full constitutional persons.” It’s being pushed by men (and, amazingly, some women) who don’t see women as fully equal people; who see their sole legitimate function as growing the next generation in their wombs, and are willing to use legal penalties as well as social pressures to force pregnant women to behave to their ideal of “responsible motherhood” regardless of the women’s own needs or choices. It’s a view that relegates over 50 percent of the human race to permanent enslavement to their wombs — and it’s a view that is steadily gaining in power and influence throughout the United States.