How efforts to limit and control later term abortion affect all pregnant women: The question of pregnant women’s personhood

Membership Call: Thursday November 6, 2014 at 2:00 PM EST

Is there a point in pregnancy when women lose their civil rights? The question at issue is really the personhood of pregnant women; each time the right to choose to have an abortion is restricted, all pregnant women are affected, and at stake is not just their right to abortion or even reproductive rights, but their personhood.

Specifically, laws and court rulings that limit or prohibit women from having later term abortions have provided the justification for state control and punishment of women who have no intention of ending their pregnancy.  These laws and rulings are allowed to advance the state’s interest in potential life. “Protection of potential life” then becomes the grounds upon which police, prosecutors and some health care works believe pregnant women – whether seeking to end a pregnancy or go to term – may be investigated, controlled and punished.

For example, women have been subject to forced medical interventions for a number of reasons, including their decision to have a vaginal birth. One woman was arrested on murder/feticide charges when she gave to twins, one of who was stillborn. The state claimed that her decision to delay having cesarean surgery was the cause of the stillbirth. Another woman sought care while pregnant after falling down a flight of stairs. At some point during the hospital visit she mentioned considering abortion in the past and was subsequently reported to the police and arrested for attempted feticide. She was released after two days because of national outcry. Cases in which women are punished for being pregnant and using any amount of a controlled substance are also based on the idea that the state’s power to punish through the criminal law may be used to protect potential life from perceived risks – even if those risks are based on drug war propaganda, junk science, and risks no different in magnitude than smoking cigarettes and being pregnant.

Here are some major case examples of how laws limiting abortion affect all women and do so in a way that deprives them not only of their reproductive rights but their personhood.  

Angela Carder case
Ms. Carder was diagnosed with cancer as an adolescent, survived chemotherapy and major surgery including having her entire leg and half pelvis removed. She survived, got married and became pregnant. When she was 27-years-old and 25 weeks into her pregnancy she suffered a recurrence of cancer. She was receiving treatment at George Washington University Medical Center, and in agreement with her treatment team and family she made clear that she wanted everything done to preserve her life. Nevertheless, a neonatologist at the hospital believed she could save every 25-week fetus.  Rather than speak with Ms. Carder or her physicians the neonatologist went to the hospital’s lawyer and argued that the fetus should be saved. Rather than direct the doctor to speak with Ms. Carder or her attending physicians, the lawyer called for an emergency court hearing to determine what rights the fetus had. A lawyer was appointed for Ms. Carder’s 25-week fetus and another, who never met with and did not know Ms. Carder, was appointed for her. After a quick hearing without Ms. Carder present, the court determined that it had an obligation to give the fetus an opportunity to live and ordered the surgery knowing that it could kill Ms. Carder. The fetus survived for 2 hours, and Ms. Carder for only 2 days. The justification for the surgery rested on the same arguments used to justify bans on later term abortions. And the decision in the case wasn’t just a deprivation of Ms. Carder’s reproductive rights – but of virtually every right we associate with constitutional personhood – her right to life; her right to liberty (she was taken into state custody so that she could be subject to force surgery); her right to due process of law – a fair hearing where she could choose and prepare her lawyer and call witnesses on her behalf; the right to medical decision making; and the right to privacy in her medical information  among others.  Although our efforts eventually won in a DC high court ruling that the court ordered surgery was wrong, and essentially that at no point in pregnancy do women lose their right to medical decision-making and due process – these cases keep happening.

Laura Pemberton case
A Florida woman was pregnant with another child after delivering her last one by cesarean surgery. She hoped to have a vaginal birth after cesarean (VBAC), but no Florida hospital would agree to a VBAC or even a trial of labor. If she wanted to use the hospital’s facilities it was cesarean surgery or no care at all. To avoid unnecessary surgery, Ms. Pemberton chose to labor at home. The hospital however, learned about this and obtained a court order to force her to have cesarean surgery. They sent a sheriff to her house who took her into custody while she was in active labor, strapped her legs together in the back of an ambulance, and brought her to the hospital where she was allowed to “represent herself” while she was being prepared for the surgery. When Ms. Pemberton later brought a civil rights suit arguing that many of her civil rights had been violated – she lost. The court concluded that since Ms. Pemberton would not have been allowed to have an abortion at that point in pregnancy – the state could decide for her how she would delivery her baby, including cutting her open without her consent, without any semblance of due process of law, and, as it turns out, with no evidence that there was a medical need for the cesarean. The court misinterpreted and misused Roe’s language concerning post-viability abortions and concluded that a woman’s rights don’t outweigh the state’s interest in preserving fetal life. Fortunately this terrible decision has limited precedential value – controlling (if at all) in one federal court district in the state of Florida.

John and Amber Marlowe case
Amber was pregnant with her 7th child.  When she went to deliver the baby, the doctor at the hospital decided that the large size of the baby would necessitate a cesarean. Ms. Marlow did not want to have surgery if she didn’t need it. The hospital, without notice to Ms. Marlowe sought and obtained a court order giving the hospital custody of the fetus, before, during, and after the delivery and the right to force Ms. Marlow to undergo cesarean surgery. The hospital’s court papers specifically cited Roe v. Wade – with its holding about post viability abortion and the state’s interest in potential life – as the basis for ordering the surgery and depriving Ms. Marlowe of her right to liberty, medical decision making, bodily integrity, due process and more. An RN notified the family, that the hospital had obtained a court order to perform a medically unnecessary C-surgery over their objections. They then fled the hospital and were able to obtain care at another hospital that respected pregnant patient’s rights and Ms. Marlowe delivered a healthy baby vaginally.

Conclusion
It is clear that restrictions on later term abortions, and claims of state interest in and separate rights of fertilized eggs, embryos, and fetuses affect all pregnant people.

Related articles:
http://jhppl.dukejournals.org/content/early/2013/01/15/03616878-1966324.full.pdf
http://advocatesforpregnantwomen.org/main/publications/articles_and_reports/roe_v_wade_and_the_new_jane_crow_reproductive_rights_in_the_age_of_mass_incarceration.php
http://rhrealitycheck.org/article/2014/10/28/tennessees-amendment-1-personhood-referendum-pregnant-women/