Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America

5. “Innocent Preborn Victims”: Fetal Protectionism and Pregnant Women

95 5 “Innocent Preborn Victims” Fetal Protectionism and Pregnant Women In as many areas as we can, we want to put on the books that the embryo is a person. That sets the stage for a jurist to acknowledge that human beings at any stage of development deserve protection —even protection that would trump a woman’s interest in terminating a pregnancy. —Samuel B. Casey, executive director, Christian Legal Society, quoted in L.A. Times, January 19, 2003 The problem isn’t that we do not value unborn children. The problem is that we do not value the lives of the women who give them that life. —Lynn Paltrow, executive director and founder, National Advocates for Pregnant Women, 2007 In 2004, Oklahoma woman Theresa Lee Hernandez delivered a stillborn son at 32 weeks gestation who tested positive for methamphetamine . The Oklahoma prosecutor charged Theresa with first-degree murder , and she was incarcerated for three years before being convicted of second -degree murder in October 2007 and sentenced to 15 years incarceration .1 In 2006, in the neighboring state of Kansas, Chelsea Brooks was 14 years old and nine months pregnant with a baby girl, Alexa, when she was murdered.2 Police believe her abusive 20-year-old former boyfriend hired someone to kill her. Her family’s outrage that the state could not file homicide charges in the death of the fetus reactivated interest in a state fetal homicide bill, House Bill 2300 (or “Alexa’s Law”), which would treat the fetus as a second victim. 96 “Innocent Preborn Victims” These two cases share more than a tragic, unexpected, and advanced pregnancy loss. Both the prosecutions of pregnant women who use illicit drugs and fetal homicide laws reflect attempts to legally recognize “fetal rights” or “fetal personhood.” In recent years, we have witnessed an increase in laws that allow prosecutors to treat some crimes against pregnant women as having two victims, and the reanimation of longstanding and deeply rooted prejudice against women who use illegal drugs, targeting particularly those who are pregnant and continue to term. These trends reflect growing and highly contested claims that not only does a fetus have “rights” that must be protected but these rights are superior to those of pregnant women, indeed of all human beings. As Brigham Young University law professor Marguerite Driessen explains , “There are many who feel that an unborn child is a living human being, regardless of the interests of its mother, who should be protected to the full extent of the law even against its parents if necessary.” She continues this line of thought by pointing out, “If this is the case, there is no impediment to civil lawsuits or criminal prosecutions against mothers for actions during pregnancy that result in harm to their unborn children.”3 Pregnant women could be imprisoned for reckless endangerment if they did such things as drive too fast or ate unpasteurized cheese. There are also those who feel, however, that while the law can and should recognize that others may have an interest in the unborn child, this is as far as the law should be permitted to go: Any attempt to go further, for instance by recognizing any rights of unborn children independent of their mothers, would be a step into the proverbial ether—wholly without legal support. If this is the case, civil or criminal enforcement actions against third parties are appropriate and welcome, but actions against the mothers on behalf of their unborn children are impossible given the fundamental inseparability of the pregnant woman and her unborn child.4 As I try to show here, claims of fetal rights and fetal protection have troubling implications for women’s overall right to bodily sovereignty. Furthermore , the pursuit of such claims undermines any serious effort to address the problems of violence against women and women’s drug dependency, and it actually endangers women’s health.5 “Innocent Preborn Victims” 97 Violence against Pregnant Women Violence against pregnant women warrants our strong concern, as does violence against any woman (see chapter 8). According to the Centers for Disease Control and Prevention (CDC), physical violence during pregnancy is associated with almost every reproductive health problem.6 A pregnant woman who is beaten is less likely to gain the recommended maternity weight and is more likely to become anemic. She is more likely to smoke, drink alcohol, and use drugs. Being beaten may cause...