From Dwindling Abortion Rights to Intrusive Drug Tests: Are Pregnant Women Second Class Citizens?

Here we are, forty years on from Roe, and there is widespread agreement: abortion rights are as flimsy as ever, and access for 80% of America is a joke. Women are turning to DIY methods to avoid the clinic humiliations and logistical nightmares. Planned Parenthood is scrapping the word “choice” from their verbiage. Time magazine reports generational “infighting” that threatens to tear down the pro-______ establishment.

Yes, now is a good time to admit failure. But the failure is much bigger than simply abortion rights: we've failed to protect pregnant women's rights.

Last week, the National Advocates for Pregnant Women released a report whose title is as frightening as its contents: “Arrests of and forced interventions on pregnant women in the United States 1973-2005” published in the Journal of Health Politics, Policy, and Law. The report documents more than 400 cases where women have been locked up in jail or psych wards or forced to undergo medical intervention while carrying wanted pregnancies (and they've unearthed 250 more in the last 7 years, which did not make it into the report).

Some highlights: A woman gets pregnant while on Depo Provera, miscarries, and is imprisoned for a year on murder charges; a woman is involuntarily committed because she failed to get a recommended follow-up test for gestational diabetes; a woman planning a home birth is court-ordered to undergo a cesarean and taken against her will to the hospital for forced surgery.

These cases are largely based on legal theory that gives a woman's pregnancy more constitutional rights than herself, theory which has given rise to “fetal personhood” campaigns and “unborn victims of violence” acts. Women are being charged with “child” abuse in utero because of something they swallowed or snorted, or forced to undergo medical intervention on behalf of their fetus. Just last week, the Supreme Court of Alabama held up the conviction of a woman who gave birth prematurely based on a statute that makes it a crime to bring a child to a meth lab. In other words, she was the meth lab.

Yes, it's sad and disturbing when pregnancy mixes with addiction, depression, selfishness, or ignorance, but so far it's not illegal—and for good reason. If we treat fertilized eggs, embryos, and fetuses as separate individuals, explains NAPW founder and study coauthor Lynn Paltrow, then pregnant women's rights go out the window. “We are not just talking about abortion rights, we are not just talking about reproductive rights,” says Paltrow. “We are talking about whether or not, in the guise of trying to end abortion, we are going to remove pregnant women from the community of constitutional persons.”

While it's true that anti-abortion forces are advancing these legal theories, it turns out that medical staff—doctors, nurses, midwives, social workers—are in many cases the police informants. And poor women and women of color are disproportionately reported. NAPW calls this a "Jane Crow system of law, establishing a second class status for all pregnant women and disproportionately punishing African American and low-income women."

Such policing of pregnant women is worst in the south, but it's happening all over the country. Even in New York City it recently came to light that more than a dozen hospitals have been drug testing new mothers without their consent and turning them over to child protective services--for marijuana.

A far cry from bedside manner, the report details “bedside interrogations reminiscent of the days before Roe when women suspected of having illegal abortions were subjected to humiliating police questioning about intimate details of their lives while lying, and sometimes dying, in their hospital beds."

These may be the worst cases of medical and prosecutorial overreach, but violations of women's rights happen every day in maternity wards across the country: women in labor are told they're not “allowed” to eat, walk around, or be in an upright position while they deliver. Women are told they “have to” be induced, they “can't” go a week past their due date, they “won't be permitted” to hold their baby immediately after giving birth. Hospitals have “banned” vaginal birth after cesarean, telling women they “have no choice” but to schedule surgery.

Such common practices are a bald reversal of modern medical ethics, which hold that permission is the patient's to give, not the clinician's to take away.

Medical practice mirrors a culture at large that routinely disrespects women's bodily intergrity. How else to explain the perniciousness of rape and the victim-blaming justifications? In media, we have no qualms digitally lipo-suctioning an inch off an actress's waist and thighs or doubling her cup size. The public feels entitled to police breastfeeding—both to demand that women do it and also that they hide it from public view.

An early feminist health book was titled: “Woman's Body: An Owner's Manual.” Do we even hold the title anymore?

If the anti-abortion movement's winning strategy has been "fetal separatism," abortion-rights advocates' losing strategy has been abortion separatism. With our attention turned entirely on a procedure rather than on a broader notion of bodily integrity and reproductive justice, we've had our backs turned to a reproductive police state in which pregnancy threatens to criminalize us all. We have got to think bigger.