Wednesday, January 16, 2013

On The Pregnancy Police

Lynne Paltrow and Jeanne Flavin have just published a survey on the arrest rates of pregnant women since Wade v. Roe came into force:

Our study identified 413 criminal and civil cases involving the arrests, detentions, and equivalent deprivations of pregnant women’s physical liberty that occurred between 1973 (when Roe v. Wade was decided) and 2005. Because many cases are not reported publicly, we know that this is a substantial under count. Furthermore, new data collection indicates that at least 250 such interventions have taken place since 2005.
In almost all of the cases we identified, the arrests and other actions would not have happened but for the fact that the woman was pregnant at the time of the alleged violation of law. And, in almost every case we identified, the person who initiated the action had no direct legal authority for doing so. No state legislature has passed a law that holds women legally liable for the outcome of their pregnancies. No state legislature has passed a law making it a crime for a pregnant woman to continue her pregnancy to term in spite of a drug or alcohol problem. No state has passed a law exempting pregnant women from the protections of the state and federal constitution. And, under Roe v. Wade, abortion remains legal.
Yet, since 1973, many states have passed feticide measures and laws restricting access to safe abortion care that, like so-called “personhood” measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman. We found that these laws have been used as the basis for a disturbing range of punitive state actions in every region of the country and against women of every race, though disproportionately against women in the South, low-income women and African-American women.  
Emphases are mine.  This treatment of pregnancy as something that removes a woman's full legal rights does not fall upon every woman evenly but affects women of color, poor women and women in the South more than other women.

Many cases are about the use of illegal drugs where the pregnant woman is viewed not as a patient needing help to quit but as a criminal procuring drugs to "minors."  But not all.  In one case, a woman trying to commit suicide while pregnant ended in prison accused for murder.  And:

A Louisiana woman was charged with murder and spent approximately a year in jail before her counsel was able to show that what was deemed a murder of a fetus or newborn was actually a miscarriage that resulted from medication given to her by a health care provider.
Do read the other examples at the link.

If the "Egg-Americans Are Full People" movement starts winning, expect more of these types of cases.  They would be a logical consequence of fetal personhood measures.  If the embryo is a full person from the point of conception then the pregnant woman is no longer a full person.  She cannot have the same legal rights as other adults because she is now an aquarium or the outermost of those Russian dolls.  Everything she does can be judged from the point of view of fetal well-being.

The Paltrow-Flavin survey found a troubling trend in all this, having to do with what apparently is a practice consisting of Other People Just Deciding What Should Be Legal and then acting on it, even if laws supporting those acts did not exist.  And this trend is quite ubiquitous when it comes to pregnancy.

Thus, the current problem isn't usually a different legal treatment of pregnant women, as opposed to women who are not pregnant or men, but something nastier:  A personal decision by someone else to override the legal rights of the pregnant woman because that someone else has decided that he or she knows best what should be done to protect the embryo or fetus.  Swooping in like an avenging angel,  filled with righteousness and laws be damned.

An example of this:

For example, last week, a Tennessee woman who had been in a car accident was tested to see if she had been driving under the influence of alcohol. According to local press, her blood alcohol content was well below the legal limit. Nevertheless, because she told a police officer that she was four months pregnant, she was arrested and taken to jail. Tennessee apparently recognizes a special crime reserved just for pregnant women:  driving while not intoxicated.
 Of course she was arrested because the police officer decided she might be harming her fetus.  The Pregnancy Police is usually not an actual police officer but a private citizen or a group of private citizens.  The Pregnancy Police decides whether a pregnant woman should have a glass of wine or not.  It sometimes even decides where she is allowed to be:

Michelle Lee was catching up with friends at a nightspot near her parents' home when a bouncer pulled her aside.
"Can I ask you a personal question?" Lee recalled him asking. "Are you pregnant?"
She responded yes because, at eight months along, it would have been difficult to argue otherwise, she said later.
Lee, 29, said the bouncer who was staffing the Coach House bar near Roselle didn't care that she was only drinking water.

She said he asked her to leave shortly after midnight Thursday, telling her the bar would be liable if anything happened to her. She complied, but grew angrier over the weekend, questioning whether she had been discriminated against as a pregnant woman.
"He just said, if anything happens, if a fight breaks out and you get hurt, we are responsible," Lee said. "That can happen anywhere. If I am going somewhere, I am taking responsibility."
In that 2011 example the pregnant woman, drinking only water, wasn't allowed to stay at a place for adults because she was a container for a fetus.

But this is really about the fear that she might take a sip of alcohol from someone else's glass, I think.  Yet it's probably quite unlikely that the occasional glass of wine or beer would harm a fetus.  After all, the French, the Spanish and the Italians have drunk wine with meals for centuries, and pregnant women were not told to abstain from it.  If moderate use of alcohol was really bad for a developing embryo or fetus then all citizens of those countries should have suffered from clear signs of alcohol damage.

The health warnings about alcohol are based on studies of severe alcohol use during pregnancy, such as is the case with alcoholism.  That the health recommendations from such studies became recommendations to cut out all alcohol during pregnancy can perhaps be understood as a policy of choosing to minimize all risk to the fetus while noting that a short abstention from alcohol is unlikely to have any negative health consequences for the woman. 

But one consequence of framing the health recommendation that way is that it has flashed a green light to all the eager Pregnancy Police Officers (whether official or amateur) out there to try to control the lives of pregnant women.  Not One Sip Of Wine Will Pass Those Lips As Long As I Am Here!

In short, we, as a culture, already regard pregnant people as having fewer rights than others, including their right to privacy, and we, as a culture, already assign pregnant women our own ethical rules about how they should act.  Just imagine what an increase in state level personhood measures would do to those tendencies!  Pregnant women might have to start hiding at home if they don't want to be subjected to the Pregnancy Police.

Note, also, that the more the legal authorities treat medical problems as crimes (but only in the case of pregnant women), the less likely it is that women with, say, drug addiction problems will turn to those legal authorities for help.  One unintended (and severe) health consequence of such policies could well be that pregnant women with problems will not contact the health care system at all.  That's something we really do not want.