“The anti-abortion movement is working hard … to give the unborn more rights than any living person,” said attorney Lynn Paltrow, founder of Pregnancy Justice—formerly National Advocates for Pregnant Women.
Attorney Lynn Paltrow defended Pamela Rae Stewart, a California woman criminally charged for failing to follow medical advice while pregnant. This prosecution was not a reaction to the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade—it took place in 1987 and was one of the first attempts to criminalize a pregnant person for their actions and argue that fetuses have constitutional rights independent (and in some cases stronger) than other people, including their mothers.
In 2000, after years of defending women like Stewart, Paltrow started National Advocates for Pregnant Women—now called Pregnancy Justice—to defend pregnant people against criminalization and other deprivations of their rights.
After over two decades leading the organization, Paltrow is stepping down this month from Pregnancy Justice. (A celebration of her career will take place on May 31, 2023, in New York City, with all with proceeds benefitting the Lynn M. Paltrow Next Generation Fund, which provides financial support for future Pregnancy Justice interns and legal fellows.)
In honor of her legacy in the courts and in the reproductive rights movement, Paltrow sat down with Ms. to share her take on the danger of surveilling and supervising pregnancy; how societies can actually keep women, children and families safe; and her vision for the future of reproductive justice.
The Power and Danger of Fetal Rights Arguments
For decades, criminalization efforts have employed the same fetal rights arguments at the heart of the anti-abortion movement to deprive pregnant people of their constitutional rights.
“The anti-abortion movement is working hard to obtain what they call ‘equal’ rights for fertilized eggs, embryos and fetuses,” Paltrow explained. “But what they really hope to accomplish is to give the unborn more rights than any living person. No person, not even a child who is one minute old, has the right to force a parent to undergo any medical procedure, or undertake any life or health risk for their benefit.
“Pregnant persons should have no fewer rights than other constitutional persons,” she continued, “and fertilized eggs, embryos and fetus should not have more.”
One of Pregnancy Justice’s major contributions has been documenting over 1,700 cases of pregnancy-related arrests, detentions and equivalent deprivations of physical liberty from 1973 to 2020 to make clear what the world will look like if anti-abortion fetal rights arguments win the day.
Even though no state until 2014 had a law authorizing arrests of pregnant women, states have sought to surveil and supervise a pregnant person’s right to travel, exercise religious freedom and make their own medical decisions, including forcing women like Angela Carder in 1987 and Rinat Dray in 2011 to have C-sections against their will based on the claim it would save the fetus.
Cases were brought by individual prosecutors manipulating other laws, such as delivery of drugs to minor, child abuse, child endangerment, contributing to the delinquency of a minor or murder. Economically disadvantaged women and women of color have been disproportionately impacted.
A significant increase in cases from 2005 onward was due in large part to judicial decisions in South Carolina and Alabama holding that the unborn fall within the definition of “child” in existing laws and a fetal assault law in Tennessee, which was in effect for two years. The Alabama supreme court’s decision, previewing Dobbs, held that the state can interpret all laws to protect fetal rights from the moment of conception, including criminalizing behavior that would not otherwise be criminal.
In the guise of expanding rights for one group, the unborn, they are actually taking away the rights of another group.Lynn Paltrow
In Dobbs v. Jackson, which overturned Roe, the Supreme Court explicitly recognized the constitutionality of laws that profess to protect, “respect and [preserve] prenatal life at all stages of development.”
“This gives states a green light to undermine numerous civil and women’s rights achievements in employment and equal opportunity, as long as state legislatures do so in the guise of respecting and preserving prenatal life,” Paltrow told Ms.
Ignoring the Bigger Picture
Prosecutors often claim they are protecting unborn life. Yet in Mississippi—where the Dobbs case originated—has the highest infant mortality rate and the sixth highest maternal mortality rate in the United States, limited prenatal care and ob-gyn deserts.
According to Paltrow, prosecutors believe “the only way concern for the fetus can be properly expressed is through authoritarian measures that control pregnant people. Anything else that requires addressing social determinants—racism, access to healthcare—does not express concern for fetuses, only authoritarian control over women does.”
This is especially true in cases of drug addiction, with women forced into programs that lack evidence-based treatment, such as those devoted to religious studies. In fact, Paltrow said many cases have been based on “junk science” perpetuated by the anti-abortion movement to justify punitive actions.
Medical Community Involvement
Pregnancy Justice recognizes the importance of working with the medical community to address pregnancy criminalization and forced interventions. Every leading medical organization that has taken a position has issued a policy advising against criminalizing pregnancies based on evidence that criminalization deters pregnant people from seeking prenatal care. The American Medical Association goes so far as to advise that “[i]n exceptional circumstances of unjust laws, ethical responsibilities should supersede legal duties.”
At the same time, Pregnancy Justice found that 21 percent of cases had been reported by personnel in medical settings, implicating healthcare workers in the policing and violation of their patient’s privacy. In some cases, personnel believe they are mandatory reporters—though often that is not the case—and HIPAA privacy rules allow disclosure of private medical information in certain cases.
In the wake of Dobbs, Pregnancy Justice created a toolkit regarding pregnancy criminalization to provide ethical guidance to relevant actors.
A Multifaceted Approach
Pregnancy Justice doesn’t just litigate cases—it incorporates public education and community organizing into its advocacy. The impact of a multifaceted approach was clear in the case of Bei Bei Shuai, a pregnant Indiana woman who attempted suicide in 2011 and lost the pregnancy. She was arrested for murder, and Paltrow and her team helped get the charges reduced by working with defense counsel and local advocates and giving talks, organizing rallies and engaging in community outreach.
“It is not a crime anywhere in the United States to attempt suicide,” said Paltrow, “but what Indiana was saying is there is one class of persons—those who are pregnant—for whom attempting suicide is a crime.”
Broadening the Movement
Black women, including Loretta Ross, created the reproductive justice framework, arguing that the fight is not only about negative rights, the freedom from state interference in reproductive healthcare decision, but also about positive rights, the right to be pregnant, to give birth in respectful and dignified ways and to have children who aren’t taken away from you by the state.
“All of Pregnancy Justice’s cases try to make those same connections,” said Paltrow. “The brilliance of the anti-abortion fetal rights movement is that it focuses the debate about personhood on fertilized eggs, when what we need to do is focus on true personhood movements, including Black Lives Matter, feminism and the rights of people with disabilities. In the guise of expanding rights for one group, the unborn, they are actually taking away the rights of another group. They are relegating the half of all humans in the United States who have the capacity for pregnancy to a separate, subordinate class of persons who may be deprived of their fundamental rights.”
Paltrow believes all social justice movements should integrate advocacy efforts, since control of bodies that get pregnant must be understood as the same as control of bodies because they are Black, gay or transgender.
When Mississippi put both a personhood and voter identification measure on the ballot in 2011, leading abortion rights groups did not combine efforts with voting rights advocates. Though the personhood measure was defeated, the voter identification measure passed, with disproportionate racial impacts and consequences for abortion-related voting measures. The 2022 midterm elections proved that voters, if able to vote, come down decisively in favor of abortion rights and access.
As younger people are recognizing the anti-democratic authoritarian policies of state legislators, they will also reject the anti-democratic authoritarianism that has been approved by the Dobbs Court.Lynn Paltrow
The Post-Dobbs Landscape
Paltrow believes Dobbs opens the door for further discrimination, including limiting IVF and contraception and criminalizing pregnancy and all its outcomes, including abortions. She warns that Dobbs has given judicial imprimatur to state prohibitions on doing anything that could potentially harm fetal life.
Pregnancy Justice is collecting information on the increase in prosecutions for a report later this year, in part to counter the anti-abortion movement’s falsehood that nobody was arrested for having an abortion before Roe so no one will be arrested after Roe. In fact, Shirley Wheeler was convicted of manslaughter for having an illegal abortion in Florida in 1971 and many other women, if they were not arrested, were subjected to bedside interrogations, forced to testify and essentially put on trial themselves.
Yet, Paltrow is hopeful, in part because prohibition never works.
“It was estimated that as many as a million women each year had abortions before Roe,” she said, “and although none of those women presumably had abortions as a political act of civil disobedience, collectively, that was a form of mass civil disobedience, which the state will not be able to ignore.”
She also believes that the anti-abortion movement’s authoritarian vision will ultimately weaken its power. “As younger people are recognizing the anti-democratic authoritarian policies of state legislators, they will also reject the anti-democratic authoritarianism that has been approved by the Dobbs Court. The Supreme Court’s decision in Dobbs, however, is not the last word on abortion, women or anyone with the capacity for pregnancy, ” said Paltrow.
Paltrow sees the fight as not just for abortion, but for a “louder and bigger” comprehensive reproductive justice vision that recognizes pregnant people as full constitutional persons whose health needs must be supported and addressed.
“With half the population capable of pregnancy, what we have to do is change the conversation so that it is clear we are not just defending abortion, we are defending the personhood of the people who sometimes need abortions, but who always need to be treated as full rights-bearing, constitutional persons,” she said.
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