Those who share such worries point to a report last year by the New York–basedNational Advocates for Pregnant Women (NAPW) that documented hundreds of cases around the country in which women have been detained, arrested and sometimes convicted — on charges as serious as murder — for doing things while pregnant that authorities viewed as dangerous or harmful to their unborn child.
The definition of fetal harm in such cases has been broad: An Indiana woman whoattempted suicide while pregnant spent a year in jail before murder charges were dropped last year; an Iowa woman was arrested and jailed after falling down the stairs and suffering a miscarriage; a New Jersey woman who refused to sign a preauthorization for a cesarean section didn’t end up needing the operation, yet was charged with child endangerment and lost custody of her baby. But the vast majority of cases have involved women suspected of using illegal drugs. Those women have been disproportionately young, low-income and African American.
Lynn Paltrow, the executive director of NAPW, said that decisions to arrest and charge women often have political and moral overtones and are mostly based on unproved or discredited notions about the effects of prenatal drug exposure.
The U.S. Supreme Court has established stringent rules limiting the use of unproved science in legal proceedings, but these often fall by the wayside in fetal harm cases, Paltrow said. She said that women are typically convicted based on evidence that would be demolished by lawyers with the time and resources to effectively refute it in court – lawyers, say, for pharmaceutical companies whose drugs are challenged in court as being unsafe.
“If a pregnant, drug-using woman were a corporation, her case wouldn’t even get to trial because the rules of evidence require that there be science to prove causation,” Paltrow said.
If you'd like to know how this sort of thing leads to a general way of thinking about women and pregnancy,
this from Alaska a few months back shows how the ideas begin to work their way into the mainstream consciousness:
Yes, Alaska Senator Pete Kelly is getting his way. As the Anchorage Daily News reported back in March, Pete Kelly of Fairbanks wanted to distribute pregnancy tests in bar bathrooms. In case you forgot watch the video below for a reminder.The pregnancy test questions start at about 1 min into the video.
Q. The idea is to make pregnancy tests available for free?
A. You grab one. Literally, you can go into the bathroom at the bar and test. So if you’re drinking, you’re out at the big birthday celebration and you’re like, ‘Gee, I wonder if I …?’ You should be able to go in the bathroom and there’s that plastic, Plexiglas bowl in there and that’s part of the public relations campaign too. Is you’re going to have some kind of card on there with a message.
That interview and the quotable moments from it proceeded to go viral – suddenly yet another Alaska politico made national headlines, unfortunately not for their governing for their inane ideas. Sen. Kelly in the interview goes on to say that birth control – like condoms wouldn’t make any sense to distribute.
Q. But isn’t the act of using birth control, in itself, acting responsibly?
A. Maybe, maybe not…That’s about a level of social engineering that we don’t want to get into.
I’ll just quote Shannyn Moore for the response to this one from her ADN column that week:
Social engineering? But putting a bouquet of EPT tests in bar bathrooms isn’t social engineering?! Cutting the funding of birth control to low-income women isn’t social engineering?!A few weeks ago, Sen. Fred Dyson balked at funding birth control because we shouldn’t be paying for people’s “recreation.” Yeah. But we do want to fund their pregnancy tests?
On the face of it, there's nothing obviously wrong with the state providing pregnancy tests. Why not? The fact that they refuse to similarly fund birth control gives away the game though. What this signals is the intrusive idea that any woman of child bearing age must always check if she's pregnant before she does anything that they deem potentially harmful to a fetus. Even if she's on birth control, apparently. That means the mere
possibility of pregnancy is now of concern to the state on behalf of a fetus they don't even know exists.
With these laws proliferating around the country that hold women liable for "crimes" committed against their own fetuses, and personhood amendments being repeatedly pushed on to the ballot, it's not hard to see where this can lead. If the state has an interest in protecting potential fetuses from the bad behavior of their potential mothers it stands to reason that is pregnancy tests be mandatory before alcohol can be sold to women of childbearing years --- or ban alcohol sales to them altogether. After all, this "voluntary" testing won't do the trick if those gals refuse to take advantage of the Daddy State's generosity in allowing her to piddle on the stick for free to find out if she has to go home and start knitting booties instead of partying with her friends. Assuming they cannot go so far as to make them mandatory one can certainly see a case in which a woman who gave birth to a child that had problems would have to be liable for negligence at the very least. (They offered her the test for free!) One might also see some liability for the restaurant owner who served her without insisting she prove she wasn't pregnant before putting the glass of Pinot Noir into her irresponsible hands.)
It is undoubtedly important to educate women about the possible ramifications of using drugs and alcohol during pregnancy. And it would be extremely helpful if the state made it easier to obtain birth control and provided adequate pre-natal care so that people can more easily decide when they want to have children. But turning pregnant women into criminals if something happens to their fetus in the womb is right out of Handmaid's Tale, particularly since a lot of this is based on
junk science that only thinly obscures the fact that much this is really about moral disapprobation toward women who foolishly think they still have agency and personal autonomy even though they are are biologically responsible for human gestation. Those things are not actually incompatible.
.