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Personhood In The Womb: A Constitutional Question


Should a pregnant woman whose behavior has been deemed dangerous to her fetus be legally punished or forced into medical procedures against her will? A study released earlier this year found hundreds of cases across the country where pregnant women were arrested and incarcerated, detained in mental institutions and drug treatment programs, or subject to forced medical interventions, including surgery.

The study, conducted by the group National Advocates for Pregnant Women, found 413 criminal and civil cases where law enforcement intervened in the lives of pregnant women between 1973 — the year the Supreme Court ruled in Roe v. Wade -- and 2005.

Fresh Air's Terry Gross speaks with the group's executive director, Lynn Paltrow, who says the legal claims used to justify some of these actions rely on the same arguments that are made in support of personhood measures that would grant the fetus full constitutional rights independent of the pregnant woman. Gross also speaks with Jennifer Mason of Personhood USA, a leader in the personhood movement.

And she speaks with Dr. Barbara Levy, the American Congress of Obstetricians and Gynecologists' vice president for health policy, about related medical issues.

Interview Highlights

Lynn Paltrow, of National Advocates for Pregnant Women

On the case of Alicia Beltran, a pregnant woman in Wisconsin who was forced into a residential drug treatment program

In Ms. Beltran's case, what happened was she confided in her doctor about her past drug use. By the time she started with a new OB-GYN when she was approximately 12 weeks pregnant, she had stopped all use of any drugs, and yet, the next thing she knew ... five law enforcement officials were at her home. They arrested her, they put her in handcuffs, they took her to an emergency room where she was examined, and that examination said she looks fine, the baby looks fine. Nevertheless, they put her in jail; they put her in leg shackles; they took her to a courtroom where there was already a lawyer appointed for her 12-week fetus. And she was not herself entitled to a lawyer. And the judge, the commissioner ordered her into a residential treatment program for 90 days that did not even provide the treatment that people were saying she needed.

On the Wisconsin law that allowed for Beltran's arrest

It's in the civil children's code, and it permits ... pregnant women who habitually lack self-control in the use of drugs or alcohol to be taken into immediate custody only on reasonable suspicion.

Many prosecutors in many states, however, have arrested women based on the claim that they were pregnant and used a criminalized drug, arguing that the state's child abuse law should be interpreted to apply to fertilized eggs, embryos and fetuses, and give police officers and others authority over pregnant women.

And what our research shows is that they argue that the word "child" in these statutes ought to be interpreted as giving the state power over pregnant women from the moment they conceive. And what they rely on for that interpretation is very often post-Roe v. Wade anti-abortion statutes that make declarations of separate rights for fertilized eggs, embryos and fetuses. State feticide laws that are passed, usually in the wake of extreme violence against pregnant women, they're passed saying that it will provide protection to pregnant women and their unborn children, and then it's turned around and used by prosecutors to justify the arrest of pregnant women themselves.

The question all of these cases pose ... is: As a society, do we believe that there is a point in pregnancy where women lose their civil rights?

On the movement to grant full legal rights to fetuses

The personhood movement is working to have fertilized eggs, embryos and fetuses recognized as completely separate constitutional persons under the law. It's not only [Personhood USA], it's 40 years of efforts by a variety of organizations who seek to recriminalize abortion.

If it succeeds and fertilized eggs, embryos and fetuses are recognized as separate persons under the law, then what happened to Alicia Beltran in Wisconsin could happen, theoretically, to any pregnant woman. ... You could essentially have every pregnant woman subject to a person who is entitled to her medical records, who is entitled to require her to undergo whatever medical procedure is best for her, have her arrested if she doesn't obey.

The question all of these cases pose — the question that the Personhood USA really raises — is: As a society, do we believe that there is a point in pregnancy where women lose their civil rights?

Jennifer Mason, of Personhood USA

On what legal rights she would like a fetus to have

The basic rights to life, liberty and the pursuit of happiness. You know, the 14th Amendment requires equal protection under the law for everybody, and so we believe that every human being, regardless of their location, whether they're in the womb or out of it, deserves those protections and those rights.

The womb should be the safest place for babies ...

On punishing pregnant women who use drugs

I think it is appropriate to treat the case just like you would a case where a woman is giving drugs to a newborn in the home. Children that are addicted to drugs when they are born go through terrible withdrawals. The womb should be the safest place for babies and should not be subject to poison just because they're located in the womb. ...

I do believe that anybody using illegal drugs should be reported. There should be consequences for breaking the law. I think to give pregnant women a pass just because they're pregnant when anyone else injecting drugs into a child would be prosecuted would be wrong.

Barbara Levy, of the American Congress of Obstetricians and Gynecologists

On the effects on the fetus of the women using opioid drugs during pregnancy

We know of no long-term consequences. We have looked. There's been one long-term study looking at infants that were exposed to opioids, looking at their cognitive development, how their brains work, and how they're functioning up to five years of age, and have not seen any difference between those babies and unexposed children. ...

The placenta filters a lot of this, so the amount that gets to the baby is far less than what you're seeing in the mother's circulation, and so it's not surprising that chronic exposure to a very low amount of a medication wouldn't have a significant effect long term.

The fundamental concern that I have is that we're criminalizing a medical problem that these women suffer from, and that we don't do that to any other segment of our society.

On her concerns about women being forced into the criminal justice system for abusing drugs during pregnancy

From the medical standpoint, abruptly discontinuing some of these medications, particularly opioids, but others, can result in very negative outcomes for the baby. They can result in premature labor. They can result in fetal distress, meaning that the baby's not getting adequate oxygen, and they can even result in fetal death. So attributing the very best of intentions to folks that are developing these laws, the unintended consequences may be that the babies have more negative effects than if we allowed proper treatment for these women.

The fundamental concern that I have is that we're criminalizing a medical problem that these women suffer from, and that we don't do that to any other segment of our society. I understand the concern about the unborn fetus, but the very best way to manage that situation and the very best outcome for the unborn fetus is to treat the mom and the baby as a unit, and to get the best care for the mom. That means she has to be comfortable and free to seek care without concern that she will be placed in jail.

Copyright 2021 Fresh Air. To see more, visit Fresh Air.