April 24, 2015 — Abortion-rights opponents are pursuing legislation that grants legal rights to fetuses as part of "a much broader national campaign ... to overturn Roe v. Wade," Rolling Stone reports.
According to Rolling Stone, such measures are rooted "in a so-called personhood strategy that grew out of the Supreme Court's assertion, in Roe v. Wade, that as the Constitution's definitions of persons did not extend to prenatal life, abortion was still a matter of a woman's right to privacy." Since then, abortion-rights opponents have tried to overturn the ruling directly, such as through 'personhood' measures, and indirectly, such as through measures that penalize pregnant women for substance misuse and various fetal homicide laws.
Measures To Criminalize Pregnancy
Under some such measures, women have faced criminal prosecution or been subject to forced intervention for substance misuse, for declining caesarian sections and for attempting suicide, among other actions, according to Rolling Stone.
For example, a pregnant woman in Wisconsin, Tammy Loertscher, was imprisoned for 18 days for refusing to undergo treatment under a state law (Act 292) that permits pregnant women to be penalized, arrested or detained for substance use. During her trial, Loertscher was not afforded legal representation, although her fetus was.
According to Rolling Stone, South Dakota and Minnesota also have laws that allow pregnant women who misuse substances to be committed involuntarily to a psychiatric or drug treatment center. In addition, at least 15 states consider substance misuse during pregnancy a form of "child abuse" and a majority of states require birth certificates for stillborn fetuses.
Overall, there had been more than 400 cases in which pregnant women were detained, arrested or forced to undergo substance misuse intervention by state authorities between 1973 and 2005, according to a 2013 study. Lynn Paltrow, study author and executive director of National Advocates for Pregnant Women, said, "What this is really about is creating a separate legal status for pregnant women," adding, "There is no way to grant separate rights to eggs and fetuses without removing rights from women."
According to Rolling Stone, the American Congress of Obstetricians and Gynecologists and several other medical groups have opposed such measures. ACOG in a statement said the fear of incarceration discourages women from care and has "proved to be ineffective in reducing ... alcohol and drug abuse."
Fetal Homicide Statutes
Meanwhile, according to Rolling Stone, 38 states have adopted "fetal-homicide statutes," with 23 states applying the laws to early stages of pregnancy.
Some states have implemented provisions that bar the laws from being used against pregnant women. However, Alexa Kolbi-Molinas, an attorney with the American Civil Liberties Union, said that when restrictions are not in place, "prosecutors are free to try to use these laws to turn any woman who has a miscarriage into a criminal."
For example, Kolbi-Molinas cited a recent case in which an Indiana woman, Purvi Patel, received a 20-year prison sentence for feticide. Patel was found guilty of both abandoning a child and attempting an illegal abortion, Rolling Stone reports.
Kolbi-Molinas said, "This case exposes as a lie the refrain the anti-abortion movement has been clinging to for ages: that if abortion was illegal, women who still sought abortions -- as we know they would -- would not be prosecuted." She explained that "Patel was sentenced to 20 years for self-inducing an abortion -- for attempting to perform a constitutionally protected medical procedure on herself," adding, "If the criminal laws can be used against women this way while abortion is legal, imagine what it will be like if it isn't" (Reitman, Rolling Stone, 4/22).