Next week marks the 40th anniversary of Roe versus Wade, the US Supreme Court’s landmark decision that legalized abortion in the United States. Whether your views are pro-life or pro-choice, Roe v Wade protects all pregnant women – those who want abortions and those who want to continue their pregnancies. In fact, it affects all women, period. And a new study tells why.
This week, National Advocates for Pregnant Women (NAPW) released an unprecedented study that looks at how measures passed since Roe v Wade have confused the law and landed too many pregnant women in jail and stripped of their own rights as women. The study is titled Arrests of and forced interventions on pregnant women in the United States (1973-2005): The implications for women's legal status and public health. Authored by Lynn M. Paltrow, Founder and Executive Director of NAPW and Jeanne Flavin, Professor of Sociology at Fordham University it was published in the peer-reviewed Journal of Health Politics, Policy, and Law.
This study identifies hundreds of criminal and civil cases involving the arrests, detentions and deprivations of pregnant women’s physical liberty that occurred between 1973 and 2005,after Roe v. Wade became law. In each of the 413 cases included in this study, pregnancy was central to the case and the consequences included: arrests; incarceration; increases in prison or jail sentences; detentions in hospitals, mental institutions and drug treatment programs; and forced medical interventions, including surgery. The authors have also already identified more than 250 additional cases since 2005. If this type of treatment of women is occurring even with Roe’s protection, imagine what could occur without it.
Recently, lawmakers have discussed legislation that would give full legal rights to fetuses from the moment of conception. Paltrow says, “But if fetuses have separate legal rights from their mothers that means women lose their status as full constitutional persons when they get pregnant. If personhood measures pass, all pregnant women risk losing their personhood."
Six million women become pregnant in the US annually and all benefit from Roe v. Wade. That ruling not only protects a woman’s right to terminate her pregnancy, but as Paltrow explains, “later Supreme Court cases have been sensibly relied upon to counter attempts to interfere with a woman's decision to become pregnant or carry her pregnancy to term.” The study, nevertheless found that laws passed since Roe v. Wade that are purported to just limit, restrict or stop abortions are instead being used to hurt all pregnant women, including those who have no intention of ending a pregnancy.
The new NAPW study reveals a disturbing range of punitive state actions directed at pregnant women including:
- Arrests and incarcerations of:
- Women because they ended a pregnancy or expressed an intention to end a pregnancy
- Women who carried their pregnancies to term and gave birth to healthy babies
- Arrests and detentions of:
- Women who suffered unintentional pregnancy losses, both early and late in their pregnancies
- Women who couldn’t guarantee a healthy birth outcome
- Forced medical interventions including blood transfusions, vaginal exams, and cesarean section on pregnant women
According to NAPW’s study, though most of the cases documented aren’t actually authorized by any law (they’re actually prohibited by the principles underlying Roe) prosecutors and judges are using feticide and anti-abortion laws that include declarations that eggs, embryos, and fetuses are separate legal persons as justification for denying pregnant women their reproductive rights and their status as full constitutional persons. Paltrow provided these examples:
- Angela Carder critically ill and 25 weeks pregnant was denied her right to life. A judge decided -- in the course of an afternoon -- that she could be forced to undergo cesarean surgery, understanding that the forced surgery could cause her death. Both she and the baby died.
- A doctor in Wisconsin had concerns about a woman’s plans to have a midwife-attended birth. A civil court order of protective custody for the woman’s fetus was obtained, authorizing the sheriff to take the woman into custody and subject her to involuntary testing and medical treatment in the hospital.
- Veronica Ayala was seven-months pregnant when she was diagnosed with gestational diabetes. When she didn’t follow instructions for obtaining additional testing authorities obtained an order to involuntarily commit her for psychiatric evaluation. She was deemed sane, but was civilly committed and kept prisoner in the hospital where, they never carried out the test they claimed was so vital.
- Laura Pemberton was in active labor in her home in Florida. Her doctors believed she was putting her unborn child in danger by attempting to have a vaginal birth after cesarean so they obtained a court order to force her to have a C-section. The sheriff went to her home, took her into custody, strapped her legs together and forced her to go to the hospital where an emergency hearing determined the state’s interest in protecting her unborn baby. Laura and her husband were not allowed legal counsel. Ultimately, she was forced to have the surgery she’d refused and felt was unnecessary. When she later sued for violation of civil rights, the court ruled that the state’s interest outweighed Laura’s First, Fourth and Fourteenth amendment rights. Laura subsequently gave birth vaginally to three other healthy children, calling into question the medical predictions of harm from VBAC.
- Michelle Greenup in Louisiana went to the hospital with vaginal bleeding. Hospital staff suspected she’d recently given birth. She was interrogated by the police and charged with murder. She spent approximately a year in jail before her counsel was able to show that what was deemed murder was actually an early miscarriage that resulted from medication (Depo-Provera – a contraceptive) given to her by a healthcare provider. Neither knew she was pregnant at the time.
As Paltrow says, “If every mother really counts – we must oppose measures leading to their arrest, detentions and more. 60-70% of women who have abortions are already mothers. 84% of women in America get pregnant and give birth. This is about all of us.”