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In Some States, Fetuses Are Deemed More Important Than Women

"Fetal rights" turn women into little more than baby carriers rather than human beings.

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The Unborn Victims of Violence Act explicitly states that nothing in the act "shall be construed to permit the prosecution ... of any woman with respect to her unborn child." But state statutes have used nearly identical language (often, as noted, only after hard-fought battles to get the language included in the first place) and then have gone on to prosecute pregnant women for their drug use in what has been called a "legislative bait and switch." Fetal protection laws not only represent a backdoor to abolishing abortion but also they leave open the possibility that the laws used to prosecute those who assault pregnant women may be directed against pregnant women themselves. In Missouri, for example, the state argued that the exception articulated in their fetus-centered homicide statute applied only to a woman who indirectly harmed her unborn child, not to a woman whose drug use was claimed to have directly endangered the child.

Claims of the need for fetal protection have been and will continue to be used to control and punish pregnant women, not protect them. Fetus-centered homicide laws are, at root, fetal protection laws. They simply are not designed to protect and support the woman who carries the fetus. I return to Marguerite Driessen for help in explaining the nature of what is at stake. She writes:

That the mother and her unborn child are inseparably connected, that what affects the former affects the latter, and that access to the latter is accomplished only through the former, is obvious. These facts have led some to conclude that this creates an utter dependency of the unborn child upon its mother such that the mother has a duty to do all in her power to nourish and protect it. These same facts have led others to conclude that the unborn child is not a severable entity at all, but rather is a part of the mother, and thus she can have no externally imposed obligations to the unborn child.

Arrests and prosecutions of women for continuing their pregnancy to term despite their use of illicit drugs, court orders, and civil commitments are examples of state-sanctioned efforts to externally impose such obligations. These efforts are rooted in our beliefs about who is fit to reproduce and what a 'good mother' looks like (see chapters 7 and 8). These measures, purportedly undertaken in the interest of fetal and child health, result in 'the normalization or standardization of motherhood. Only those who meet the state-enforced standard are permitted to reproduce without state interference.'

These cases also serve a larger political purpose by distracting attention from significant social problems such as our lack of universal health care, the dearth of policies to support pregnant and parenting women, an absence of social supports for children, and the overall failure of the drug war. Instead, we focus our attention on "bad" pregnant women who are poor and who use drugs. We expect them to provide their fetuses with the health care and safety that they themselves have not been guaranteed.

The state cannot act this way without at least tacit public support. In general, the public seems increasingly, if grudgingly, willing to consider illicit drug use a public health or medical problem. Public animosity toward poor women who use illicit drugs and become pregnant and give birth, however, persists. The hostility has been fueled by the antiabortion movement's claims of fetal rights, combined with false and exaggerated claims about the effects of prenatal exposure to cocaine on pregnancy outcomes, fetal and infant health, and early childhood development.

Click on the link for a copy of Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America.