The Rise of “Jane Crow” Laws Threaten Personhood for Women

When women become pregnant, do they lose their constitutional rights? A study published today in the Journal of Health Politics, Policy and Law shows that anti-abortion laws in many states are being used to justify the arrest and detention of pregnant women, and to force them to undergo unwanted medical interventions, including surgery. Beyond the threat to Roe v. Wade and US women’s legal right to choose abortion, the study argues, these laws are creating a systemic treatment of pregnant women as a separate class of people whose rights are denied in favor of the perceived rights of the fetus.

“Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health” by Lynn Paltrow, Executive Director of National Advocates for Pregnant Women and Jeanne Flavin, Professor of Sociology, Fordham University, identifies 413 cases showing pregnancy was a necessary condition for detention, and that legal authority was justified in the name of protecting a fetus and by abridging or denying the constitutional rights of the pregnant women involved.

While many of the cases are related to women taking drugs while pregnant, there is a great variety in the circumstances under which pregnant women were detained, and, in every case, the reason given for detention was fetal safety. For instance, a woman in Ohio was jailed to keep her from having an abortion. A pregnant woman in Florida, whose previous pregnancy had ended in Caesarian section, wanted to deliver vaginally. Her doctors believed so strongly that by refusing Caesarian she was endangering her unborn child’s life they sought a court order to force her to have the procedure. The woman was not represented by counsel. When she later sued the state, federal district court ruled that the state’s interest in protecting the fetus overruled the woman’s First, Fourth and Fourteenth Amendment rights. This women had three more children, all delivered vaginally. According to the study, the detentions were predominantly of low-income women, 59% were women of color.

In case after case cited, pregnant women were charged with abuse, neglect, or endangerment of the fetus, despite the fact that no laws exist which separate a fetus legally from treatment of the mother. In many cases, feticide laws were cited in charges against the women, though this was never the intent of the laws.

In Roe v. Wade, the Supreme Court affirmed that a pregnant woman had a right to decide whether or not she wanted to continue her pregnancy or terminate it up until the moment of “viability,” when the fetus could live independently, separately from the mother. “Personhood” laws, which seek to extend constitutional rights to the unborn, have been rejected in every state where they have been put to vote, due to their unintended consequences for women. And yet, as Paltrow pointed out in a Tuesday press conference, prosecutors and law enforcement routinely used arguments embraced by the “personhood” lobby to justify charges against pregnant women. “There is no way to treat embryos and fertilized eggs as if they were persons,” she said, “to add them to state constitutions, without subtracting pregnant women.”

As Paltrow and Flavin wrote in RHRealityCheck.org, their study “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.”

National Advocates for Pregnant Women calls on feminists and legislators to reject “personhood” efforts for the unborn; to study whether feticide laws are causing more harm than good to pregnant women; to resist the trend toward collusion between health providers and law enforcement by providing pregnant women with the same confidentiality accorded normally to patients; and to reaffirm that pregnant women are persons and entitled to constitutional rights.