The Nation ‘s Michelle Goldberg recently discussed how the anti-choice movement is increasingly using state and federal “fetal rights” laws to arrest and imprison women. “Throughout the past few decades, abortion foes have worked steadily to endow fetuses with rights separate from those of mothers, aiming to undermine the logic of Roe v. Wade.” This agenda is designed to “allow a jurist to acknowledge that human beings at any stage of development deserve protection—even protection that would trump a woman’s interest in terminating a pregnancy.” The practical effect of this aspect of the anti-choice movement has resulted in women facing serious criminal charges for “ending their pregnancies, or merely attempting to do so.”
The fear that anti-choice politicians would create and be able to use “fetal rights” law, for example the push to recognize the theory of “fetal pain,” at earlier and earlier gestational stages can no longer be dismissed as paranoia. There have been successful attempts in some states to create such laws, and there are increasing attempts to use feticide laws to criminalize everything from attempted suicides, suspected attempted suicides, or even “suspicious” miscarriages.”
The New York Times recently reported on an alleged epidemic of low-income pregnant women around the country that are abusing prescription drugs. Lynn Paltrow, the founder of National Advocates for Pregnant Women, explains how the New York Times, relying solely on anecdotal evidence, “…suggest[s] that the greatest threat to children is their mothers…” This false narrative adds to the notion that certain kinds of pregnant women, particularly low-income women, cannot be trusted.
Paltrow also discusses the real impact of the “Unborn Victims of Violence Act of 2004’’ or ‘‘Laci and Conner’s Law,’’ which was enacted after the tragic murder of Laci Peterson. Laci Peterson was eight months pregnant at the time of her murder in 2002. Paltrow explains:
[t]he Unborn Victims of Violence Act creates a federal law making it a crime to cause harm to a “child in utero,” recognizing everything from a zygote to a fetus as an independent “victim,” with legal rights distinct from the woman who has been attacked. More than 30 states already have similar laws on the books. In practice, these laws treat the pregnant woman as little more than collateral damage in an attack portrayed to the public as one directed against the fetus. Moreover, pregnant women in states with such laws are more likely to be punished for behaviors and conditions that are not criminally sanctioned for other members of society.
In March 2004, in reaction to this legislation, Senator Dianne Feinstein (D-CA), stated, “[o]nce in a statute you create a fertilized egg as a human being with specific rights, the march to eliminate Roe v. Wade is on its way…”
So how do we fight this kind of legislation politically when anti-choice politicians exploit the victims of these horrific crimes as the weapon to further degrade abortion rights?
Goldberg concludes that “…as abortion rights weaken and fetuses are endowed with a separate legal identity, women are being put in jail.” She goes on to detail a number of shocking recent cases that demonstrate how fetal rights laws are being used to arrest and incarcerate women across the country.
Meanwhile, in Louisiana a bill has been introduced that would use feticide laws to prosecute abortion providers and women who get abortions. State GOP legislator Rep. John LaBruzzo introduced the bill but indicated that he did not intend for the law to be used against women that get abortions. He has insisted that the bill will be amended, stating it was a “mis-draft” and he would remove the specific language that would permit the prosecution of women because such a provision “…would make it too difficult to pass, otherwise.” But even a cursory review of the marked up bill clearly indicates that LaBruzzo had every intention to include women in the criminal penalty provision of the law right along with abortion providers and doctors. LaBruzzo specifically altered the current feticide law to include women in the criminal penalty provision. Mother Jones’s Kate Sheppard stated:
[i]t’s pretty hard to believe this language was changed accidentally. I believe the real reason LaBruzzo now plans to remove it was not that it was a “mis-draft,” but simply that, as LaBruzzo told the local news, including such a provision “would make [the law] too difficult to pass.” He acknowledges the fact that most people—no matter how anti-abortion they are—don’t actually think that a woman should be put in jail for up to 15 years, with hard labor, for obtaining an abortion.
Furthermore, since LaBruzzo is really looking to get to the Supreme Court, he believes that technological advances will sway the current Supreme Court to overturn Roe v. Wade.
Inextricably tied to this surge of fetal personhood rights is the increasing justification for unconstitutional abortion bans. One proposed abortion ban in Minnesota, which is based on the disproved fetal pain theory, was recently challenged by the Minnesota medical community.
GOP lawmakers and the Minnesota Citizens Concerned for Life (MCCL) received some pushback in response to a proposed Minnesota ban on abortions after 20 weeks:
…in a March 30 letter to legislators, a team of experts in the field of gynecology and reproductive science evaluated the legislative findings promoted by MCCL and demonstrated that there is no medical or scientific consensus on fetal pain at any stage of development and that research continues to be contradictory… ‘scientific evidence does not support the elimination of legal abortion at 20 weeks’ gestation based on concerns about the existence of fetal pain,’ the letter concluded.
The fetal pain theory has been proved false by medical experts in the U.S. and the U.K.
Despite this pushback, the fetal pain bill is moving forward in the Minnesota state senate, based solely on Republican support. The Pain-Capable Unborn Child Protection Act bans abortion after 20 weeks and includes funding for prosecution of violations of the ban.
Unfortunately, Minnesota, and other states considering 20 week abortion bans, has been emboldened by the fact that the Nebraska 20 week abortion ban has gone unchallenged since its enactment in November 2010.
In addition to the fetal pain anti-abortion laws, so-called “fetal heartbeat” anti-abortion laws, such as the recently proposed law in Ohio, essentially amounts to a total ban on abortion. These laws represent a direct challenge to Roe v. Wade. Likely presidential candidate and former Arkansas governor Mike Huckabee has endorsed the Ohio bill, which “…would give Ohio ‘the most restrictive abortion law in the nation’.”
Fetal rights are also being used as the pretext to criminalize the work of abortion providers and physicians in some states. South Dakota, Nebraska, and Iowa all had bills introduced this year with a “…common purpose: To expand justifiable homicide statutes to cover killings committed in the defense of an unborn child.” The coordinated efforts in these states were organized by Americans United for Life. In Missouri and Oklahoma similar bills have been facilitated by Americans United for Life under the guise of protecting pregnant women from being attacked by abusive husbands and boyfriends – attacks resulting in the death of a fetus.
The Missouri bill “[s]pecifies that a pregnant woman may use deadly force if she reasonably believes that deadly force is necessary to protect her unborn child against death, serious physical injury, or any forcible felony.”
The Oklahoma bill, the Use of Force for the Protection of the Unborn Act:
…establishes justifications for a pregnant woman to use deadly force to protect her unborn child…Under the circumstances as she reasonably believes them to be, she would be justified in using force or deadly force to protect herself against the unlawful force or unlawful deadly force she reasonably believes to be threatening her unborn child; and; she reasonably believes that her intervention and use of force or deadly force are immediately necessary to protect her unborn child.
It is one thing when laws “specifically cover pregnant women” but when legislation is introduced that would allow third parties to protect a fetus, then one could envision a scenario where “…a pregnant woman could seek out an abortion and a boyfriend, husband—or, in some cases, just about anyone—could be justified in using deadly force to stop it.”
Law enforcement authorities are also speaking out against these laws and have become very concerned that these proposals can lead to increased violence against abortion providers. The concern being that anti-abortion extremists could become vigilantes, viewing these laws as a “justifiable homicide” defense. Omaha’s deputy chief of police conveyed his fears before the Nebraska legislature’s judiciary committee and said that Nebraska’s proposed law “…could be used to incite violence against abortion providers.” Two separate laws were introduced in Nebraska this year that theoretically would have permitted third parties to intervene to defend the life of a fetus.
These laws represent another weapon that the anti-choice movement is using to slowly chip away at Roe v. Wade. So the question remains, how do pro-choice groups tackle these issues without risking a full on reversal of Roe from the Supreme Court? Unfortunately, there are no simple answers to this increasingly complicated question. But continuing to stand by and watch Roe evaporate slowly and painfully is becoming an unacceptable reality for the women being subjected to these laws in so many states. Furthermore, it is also an unconscionable option for women that are being jailed around the country as fetal rights supplant the basic rights and freedoms of pregnant women.