When Every Miscarriage Is a Murder Scene, Poor Women Pay the Highest Price

Although poor mothers may not be the people who brought this case before the Alabama court, they will bear the heaviest cost.

Under fetal personhood laws, miscarriages—which occur in 10 to 20 percent of pregnancies—could become heavily scrutinized. (Antenna Archives / Getty Images)

The Alabama Supreme Court recently shocked the nation when it held that the word “child” includes frozen embryos. Treating an embryo as the equivalent of a child upends the fertility industry, as it threatens to end in vitro fertilization (IVF) services and puts the status of embryos already in storage in serious question. The decision rightly received national news coverage discussing what it means for people undergoing infertility care, people who underwent IVF in the past, and broader implications for abortion and reproductive rights if even embryos are viewed as legal persons.

While these implications are important to untangle, the brunt of the effects of fetal personhood will fall not upon families with the resources to undergo IVF, but rather on poor and non-white women. The Alabama decision should sound a screaming alarm that the government is about to have yet another cudgel to use against disadvantaged women.

The decision reaches beyond fertility treatments and into the heart of women’s autonomy.

The Alabama case was brought after a patient in a hospital wandered into a fertility clinic housed in the hospital, removed frozen embryos from storage and then dropped them, destroying the embryos. The intended parents whose genetic material had been used to create the embryos, understandably upset, brought suit under a law first passed in 1872 that empowered people to sue someone who wrongfully caused the death of their child.

The men who wrote the law couldn’t have contemplated their words being applied to frozen embryos—the technology to create and store embryos in a medical setting didn’t exist at the time—but the Alabama court concluded that it was an “ordinary, commonly understood meaning” that the word “child” would also apply to “unborn children who are located outside of a biological uterus.”

This obviously puts the legality of IVF into serious question, and the largest hospital in the state has already announced it will not be performing more IVF procedures. The status of embryos already in storage is also up in the air, since they are typically handled according to contracts between intended parents and fertility clinics rather than family court proceedings that would decide custody of children.

But the decision reaches beyond fertility treatments and into the heart of women’s autonomy, since fetal personhood would justify all sorts of restrictions on pregnant people as a way of protecting the fetus they carry. If a fetus is the same thing in the eyes of the law as a child, after all, a pregnant person who smokes, drinks or uses illegal drugs and later miscarries might also have caused a child’s wrongful death.

Treating an embryo as a child in the eyes of the law means that every decision made by a pregnant person could be second-guessed by the government.

Once the door is open to punishing pregnant people for behavior that might have endangered their pregnancy, we should ask which mothers are already punished for behavior that might have endangered their children. The evidence is overwhelming that it is women who are poornon-whiteLGBTQ+ or otherwise already disadvantaged.

A particularly frustrating aspect is that women have long been caught in a catch-22 of being either a poor provider or a poor mother. For example:

  • In 2015, a Texas woman had a job interview in a food court at a mall, but couldn’t find childcare for her two children. She brought them with her to the food court and set them up at a table with food, then sat at a different table to meet her interviewer. After she finished her interview, she was arrested and charged with child abandonment.
  • In 2014, a mother of three had a job interview for a position that would pay enough money to move her family out of her car and back into a home. She had hired a babysitter, but when she tried to drop her children off at the sitter’s house no one answered the door, so in desperation she left her children in her car on a 71 degree day with the windows partially down and the car’s air conditioning running. She was charged with two felony counts of child abuse.

Now, imagine similar risk-taking calculus made by a pregnant woman in Alabama with a job that exposes her to potentially dangerous substances or requires significant time on her feet or doesn’t give her restroom breaks so she doesn’t drink water while she’s at work. In theory she might ask for accommodations from her employer for her pregnancy, but she may not know that she can request them, or may worry that if she asks, the employer will find another reason to fire her. Maybe she’s stitching multiple jobs together to make ends meet and drinks too much coffee rather than fall asleep while driving home. Maybe she doesn’t have health insurance and doesn’t get regular prenatal care.

Now imagine that she has a miscarriage or stillbirth, or gives birth to a baby with health problems. Under the logic of the Alabama court, any statute with the word child—child endangerment, child neglect and so on—could be applied to her. This is the real threat of the decision.

Treating even an embryo as a child in the eyes of the law means that every decision made by a pregnant person could be second-guessed by the government. Every step outside of the most risk-averse approach to pregnancy puts the pregnant person under the microscope of the state.

So far, the decision just applies to Alabama. But anti-abortion advocates are already feeling emboldened by the ruling and are likely to bring similar cases and win similar rulings in other states or at the national level. Before long, a large portion of American women could be under a new legal regime scrutinizing and punishing every choice they make while pregnant. And although poor mothers may not be the people who brought this case before the Alabama Court, they will bear the heaviest cost.

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Dara E. Purvis is associate dean for research and partnerships and professor of law at Penn State Law.