In recent months, women’s reproduction has been in the spotlight. A few weeks ago, the Republican Party adopted an anti-abortion platform calling for a constitutional amendment outlawing abortion and making no exception for victims in cases of incest, rape, or to save the woman’s life. Ironically, some of the very same party leaders responsible for drafting the amendment issued demands for the Missouri Congressman, Todd Akin, to resign or step aside in a hotly contested Senate race after he made controversial claims that “legitimate” rapes rarely result in pregnancies.
As the gender war plays out in high profile ways, we should be aware that abortion politics is not the only area in which women’s reproductive rights are closely scrutinized and under threat of political attack. Relatively little attention has focused on the pernicious on-the-ground forms of criminal policing targeted at pregnant women across America.
Since the late 1980s, state legislatures have enacted criminal feticide laws that now ensnare women for a broad range of activities, including falling down steps, suffering drug addiction, refusing cesarean sections, or attempting suicide. For example, in 2010 Utah Governor Gary Herbert signed into law the “Criminal Homicide and Abortion Revisions Act,” which specifically applies to miscarriages and other fetal harms that result from “knowing acts” committed by women. A prior version of the bill drafted by state legislator Carl Wimmer authorized life imprisonment for pregnant women who engage in reckless behavior during pregnancy that could result in miscarriage and stillbirth. Arkansas, Florida, Minnesota, and some other states define child abuse as intentional or neglectful harm to the fetus.
Legislators and prosecutors from both political parties have decided that a very strong “stick” should be used against pregnant women. In 1995, former South Carolina Attorney General Charles Condon wrote: “We needed a program that used not only a carrot, but a real and very firm stick.” In an unusual move, Condon collaborated with hospital officials at the Medical University of South Carolina to secretly collect medical information about its pregnant patients and turn that information over to police. In 1999, South Carolina was the first state to convict a woman of homicide for a stillbirth.
Early feticide laws were intended to protect women from third party harms to their pregnancies, such as domestic violence, because women are more likely to be the targets of domestic violence during their pregnancies. However, now fetal protection laws-in 38 states-lead to absurd arrests and senseless convictions of pregnant women. The scope of the problem is difficult to measure. Yet, what is clear from the legal cases and news reports is that most of the victims are poor and many are women of color.
During the 1990s, prosecutors began using fetal protection laws as a way to get tough on crime and rein in illicit drug use among poor pregnant women whom states feared might give birth to drug-addicted babies and thereby drain resources. Legislators and prosecutors turned to criminal punishment rather than rehabilitation programs for these vulnerable women.
Now, the demographics have shifted; more pregnant women are being caught in these legislative dragnets as nearly any threat to a fetus can give rise to an arrest and doctors are pressured to disclose private information about their patients. Two years ago in Iowa, Christine Taylor fell down a flight of steps during her pregnancy. Out of concern for her fetus, Taylor sought additional medical attention although emergency medical technicians ruled her condition in the clear. She was arrested shortly after the hospital visit and charged with attempted feticide. The charge was later dropped because under the state’s law, Taylor’s pregnancy was not far enough along.
Similarly, last year in Indiana, after a failed suicide attempt, Bei Bei Shuai was arrested and charged with attempted feticide and the murder of her fetus. In her case, she ate rat poison after the father of her child drove off, leaving her on her hands and knees in a parking lot. Shuai faces a sentence of 45 years to life in prison if convicted even though attempted suicide is not even a crime in Indiana.
Even how women choose to give birth has been a matter of close scrutiny. In some states like Virginia, Colorado, New Jersey, Washington, D.C., Utah, Arizona, and Illinois, pregnant women have been reported by their doctors to police or courts for refusing to undergo cesarean sections.
Between aggressive personhood referenda, the expansion of feticide laws, shackling women during their labor and delivery, and the use of court orders to confine women who refuse bed rest, women’s reproduction rights are under unrelenting monitoring and attack extending far beyond the abortion debate.