Two “gay” penguins recently “adopted” an egg and became “proud fathers” of a baby girl. How reporters covering the story determined that the penguins identified as gay is anyone’s guess—but nonetheless, it’s a feel-good story in a society that increasingly accepts and celebrates different types of families. Yet my excitement for the two penguin dads is clouded by the reproductive injustice faced by so many women in American society—especially those who are single, low-income and/or women of color.
Celebrating diverse families is important. Real reproductive justice, though, requires woman-centered reproductive health laws.
State legislatures have been passing laws to restrict abortion at breakneck speeds in the last decade—and their latest strategy is to do so by granting rights to fetuses. Several measures in last November’s midterm elections advanced that agenda, including Alabama’s Amendment 2, which makes it state policy “to recognize and support the sanctity of unborn life and the rights of unborn children;” and moves in Ohio and Oklahoma defining an “unborn human” as a legally protected person and abortion as homicide, which is punishable by death.
These laws take away pregnant women’s rights—whether those women intend to terminate their pregnancies or to give birth. In a recently overturned decision, a court in Arkansas convicted Anne Bynum of “concealing a birth” after she had a stillbirth at home in 2015 and took the fetal remains to a hospital. Law enforcement arrested her on suspicion that she had attempted to self-abort, and a jury convicted her. She was sentenced to six years in prison before the Arkansas Court of Appeals reversed the conviction in December 2018.
In other cases, feticide laws have been used to prosecute pregnant women for having accidents or mental health problems. In January 2010, Christine Taylor was arrested and charged with attempted feticide after she fell down a flight of stairs while pregnant. Taylor told a nurse in the Emergency Department that she had considered abortion earlier in the pregnancy because she had separated from her husband. The nurse subsequently reported Taylor to law enforcement, and she spent two days in jail before they dropped the charges. In December 2010, Bei Bei Shuai, an immigrant who suffered from severe depression, attempted to commit suicide when she was 32 weeks pregnant. She survived, but her fetus did not. Instead of offering her treatment, an Indiana court charged her with murder and attempted feticide. After spending over a year in jail, she pleaded guilty to “criminal recklessness.”
Other states take punitive actions against pregnant women who use drugs or alcohol; the worst violations of pregnant women’s rights under these laws have targeted low-income women of color. Rennie Gibbs, an African American teenager, had a stillbirth in Mississippi in 2006 after her umbilical cord wrapped around her baby’s neck. She was sentenced to life in prison by a Mississippi court for murder when an autopsy found a cocaine byproduct in her stillborn daughter’s blood. In a more recent case, Kelli Leever-Driskel was charged with feticide, manslaughter and possession of methamphetamine after giving birth to a stillborn baby boy in February 2018.
Laws that prioritize fetal rights over women’s rights also make it more likely that pregnant patients will experience disrespectful care, including violations of their right to informed consent and bodily integrity. Court-ordered cesareans are a prime example. At least a dozen states have obtained court-orders to force unwilling pregnant women to undergo cesarean deliveries, even though it is not legal to force a woman to undergo surgery. These cases are rare, but they highlight the ways that a focus on fetal rights can be used to deny pregnant women fundamental rights. In my own research, I also found that pregnant women are less likely to receive evidence-based care or to have a vaginal birth after cesarean in states that restrict contraception and abortion than in states that protect women’s reproductive rights.
More than abortion is at stake when laws deny pregnant women the rights to make decisions about their pregnancies. Those who oppose abortion might do well to note that states with more abortion restrictions have worse maternal and infant health outcomes, including higher rates of maternal and infant mortality.
Many Americans value the life of an unborn fetus—but the life and well-being of pregnant women is essential to those who love them. Moral objections to abortion cannot be solved by prioritizing fetuses over women’s lives. Instead, we should empower women to make the right decisions for themselves, their children and their families—and find ways to guarantee that all women are able to plan their families on their terms and, if they so choose, to parent with dignity.
