“There are laws on the books,” Personhood director, producer and editor Jo Ardinger told Ms., “that people would be shocked to find out could be applied against them.”
If you think The Handmaid’s Tale is fiction, the chilling new independent documentary film from Ardinger and producer Rosalie Miller, about the widespread detention and criminal prosecution of pregnant women in the United States, will move you to organize for a new Mayday.
Personhood follows the story of a Wisconsin woman, Tammy Loertscher, who was detained after she told her doctor that she had used drugs before conceiving to address the symptoms of untreated hypothyroidism—untreated because she had no health insurance and couldn’t afford the medication.
Held under Wisconsin’s “Unborn Child Protection Act,” Loertscher was denied representation—but the state gave her fetus a lawyer. “I felt like my baby had more rights than I did,” said Loertscher, “like I was just an animal.”
Loertscher was ordered her into drug treatment and, when she refused the treatment as unnecessary, she was jailed without prenatal care in solitary confinement and threatened with a taser for seeking medical help. “They put me in solitary. It’s dirty solitary. There’s hair, fingernails. There’s feces on the toilet. I have no blanket. Nothing.”
Loertscher is a low-income white woman, but the film importantly notes that 59 percent of women targeted for arrest, detention and intervention are women of color, and that 72 percent are low-income. These women are trapped at the intersection of the war on drugs, mass incarceration and the erosion of women’s rights.
Loertscher’s attorney—Lynn Paltrow of the National Advocates for Pregnant Women—has documented over 600 cases of arrests and forced medical interventions on pregnant women in the United States, which she says is likely a substantial undercount. In Wisconsin alone, between 2005 and 2017, 4,743 women faced allegations of “unborn child abuse.”
Doctors are violating pregnant women’s privacy rights by turning over their medical information to police, who are arresting and criminally prosecuting them for miscarriages, stillbirths, using drugs while pregnant, or refusing to undergo caesarean surgery—deprivations of liberty that they would not have experienced except for being pregnant. Wisconsin’s law covers not only drug use, but alcohol as well.
“As soon as you open up the door,” asks Ardinger, “where do you stop?” She points to a 2016 CDC recommendation that women of childbearing age who are not using contraception should abstain from drinking alcohol because they might become pregnant. What about paint fumes, she wonders, or climbing a ladder, or rock climbing? “How are we supposed to start distinguishing what is dangerous to pregnancy?” More importantly: Who gets to decide?
While “pro-life” proponents of these measures claim to be acting in the interest of fetal health, Loertscher says the actions against her were about “punishment, not a healthy pregnancy.”
The data shows that she’s right: One recent study suggests that punishing pregnant women for substance use may dissuade them from seeking prenatal care and substance use treatment for fear of criminal prosecution, with negative effects for pregnant women and their babies. Some women with addiction issues are having abortions to escape prosecution—and in Tennessee, women are leaving the state to have babies. “It’s not really about valuing life,” says Ardinger. “It’s about controlling women.”
But women are also fighting back. With the help of Paltrow, Loertscher filed a challenge to the Wisconsin law, which a court ruled was unconstitutional, although an appeals court reversed the decision for mootness because Loertscher had left the state. Loertscher even took her case to the United Nations. The law, however, is still in effect.
Viewers also learn about the work of Cherisse Scott of the Tennessee reproductive justice organization SisterReach to overturn a fetal assault law that was used against pregnant women with drug addiction, and the work of Christina Aguilar of the Colorado Organization for Latina Opportunity and Reproductive Rights, which defeated a fetal personhood Constitutional Amendment in her state in 2014. The Colorado Amendment was defeated and the Tennessee law sunsetted in 2016. The Wisconsin law, however, is still on the books.
Scott argues that we must “rehumanize women” and “shift norms on how people are thinking about sick people and poor people.” Paltrow agrees, arguing that you can’t add fetuses to the constitution without subtracting women.
“Women are beginning to recognize that what’s at stake is more than abortion,” she explained. “It is their personhood—their ability to be full, equal, constitutional persons in the United States of America.”