When Will Lawmakers Stop Surveilling Women’s Bodies?

Women claimed an outsized voice last week in the first national elections since the #MeToo movement went viral—but we have a long way to go in reclaiming our bodies.

A record number of women ran for political office this year, and a record number will be seated in Congress, but the numbers of women in political office are still depressingly low. Internationally, the U.S. ranked 104th for female representation before the midterms, and the latest elections are just a nudge up. Women will still fill less than a quarter of the seats come 2019, and only nine governors will be female.

Gender parity in politics matters—because our rights and our bodies are on the line. An insidious and often unnoticed rise in the surveillance and control over women’s bodies is happening right here and now. Some of the strategies are familiar; others are creative and even absurd.

A recent story from Tanzania about the expulsion of pregnant girls from school—a practice recently revived from the 1960s—might be read with curiosity, but seem remote, to those of us living in the U.S. After all, girls here aren’t taken from class and made to pee in a jar for compulsory pregnancy tests twice a year. But several weeks ago, the Virginia prison system did ban visitors from using tampons.

You read that correctly: The state of Virginia wanted to make it so that visitors to prisons in the state revealed to be using a tampon by a body-scan machine would be turned away, and their future visitation privileges “reviewed.” Prison officials claimed this was part of an effort to reduce fatal overdoses from drugs smuggled into prisons. The ACLU and other advocacy groups disagreed, and pressured the prison system to reverse course. Their intervention allowed women to escape this latest surveillance, but some effects remain. The body scans of visitors will still reveal tampon use—which remains intrusive, not to mention creepy.

Women these days are engaged in a constant game of whack-a-mole against attacks on their reproductive rights and health. As women candidates scored victories in the midterms, Alabama voters approved a measure to recognize the rights of the unborn—laying the groundwork for an outright abortion ban if the landmark decision in Roe v. Wade, now more at risk than ever, is ever overturned.

Vigilance, it seems, is now required to simply hold on to rights that we thought were already secure. Take, for example, the contraception wars—which many of us felt were settled in the 1960s and 70s, but, then, suddenly weren’t. Rush Limbaugh called law student Sandra Fluke a slut for advocating for contraceptive coverage during debates over the Affordable Care Act, and it was only an opening performance of what was yet to come. Soon thereafter, employers stated they were willing to cover birth control pills for health reasons, but not to avoid pregnancy; to determine the difference, women would have to explain themselves.

Nicole Mone Arteaga was denied access to critical care in June by a Walgreens’ pharmacist in Arizona, who refused to fill a prescription needed to manage the miscarriage of her very-much-wanted pregnancy. In doing so, he relied on an Arizona “conscience” statute that some argue gives pharmacists to refuse to fill prescriptions for emergency contraception, abortion medication and drugs that prevent implantation of a fertilized ovum. Arteaga later said that, after explaining in front of her seven-year-old child and five nearby customers that the fetus she was carrying had failed to develop, she left without the prescription “in tears, ashamed and feeling humiliated by a man who knows nothing of my struggles but feels it is his right to deny medication prescribed to me by my doctor.”

Arizona is not the only state where women like Arteaga aren’t in control of their bodies. The list of intrusive regulations nationwide goes on and on, as does the fight to stop them. But with each one of these proposed policies the goalpost of what might become normalized is moved—even if they’re staved off in legislative session or the courts intervene to protect women’s bodies.

In the name of women’s “right to know,” North Carolina requires physicians to display and describe the results of a mandatory ultrasound before an abortion, which requires a vaginal probe in many cases—and claimed it was enough that a patient who didn’t welcome the process could avert her eyes or cover her ears and make do. A court reviewing the law sympathized with the patient lying “half-naked or disrobed on her back,” but ultimately struck the law down because it infringed on the physician’s rights; the requirement was “quintessential compelled speech,” “forc[ing] physicians to say things they otherwise would not say,” even though the compulsion experienced by the physicians inevitably pales in comparison to that experienced by the patients. Today, similar “speech and display” ultrasound laws remain in effect in Louisiana, Texas and Wisconsin.

Virginia’s tampon ban was not defended as a means to limit contraband for the sake of prison control—it was defended as an effort to save prisoner’s lives. Really? Instead of beginning with the vagina, perhaps we could try adequate medical care staffing and emergency response, or drug and mental health treatment programs.

Nature makes it hard enough for girls and women to consistently exercise comfortable control over their bodies: we have periods, we get pregnant, we lose wanted pregnancies. It isn’t fair, just or right that we must also continue to face down boys and men each day who assert their own prerogatives over our bodies—and it’s scary that the government increasingly, incrementally and, under the guise of apparently noble but ultimately shallow justifications, is also attempting to take more and more control over our decisions and our destinies.

It’s clear now more than ever that our constitutional rights are an imperfect shield—one around which intrusive laws can peer, poke and prod. The midterms were a strong first step toward taking back our power to decide and determine our own futures—but we must be ready to vote, mobilize, run for office and pack up our pink hats and posters until we’re certain that our bodily integrity is safe.


Lois Shepherd is Professor of Law, Professor of Public Health Sciences, the Wallenborn Professor of Biomedical Ethics and Co-Director of Studies in Reproductive Ethics and Justice at the University of Virginia. She is a Public Voices Fellow with the Op-Ed Project.