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Is Miscarriage Murder? States That Put Fetal Rights Ahead of a Mother's Say So

The effort to undo Roe v Wade threatens not just reproductive rights but the very definition of personhood for American women

Back in 1872, just after she was arrested for casting an illegal vote, Susan B Anthony gave a rousing speech in which she posed the question of whether women are actually persons. Her point, of course, was that if women were indeed flesh and blood persons, then there could be no legal basis under the constitution to deny them a vote. It took nearly 50 more years – women finally achieved suffrage in 1920 – to get a definitive answer to what was a rhetorical question.Several states have pursued murder charges for women who have miscarried. (Photograph: Graham Turner for the Guardian)

Now, however, less than 100 years after that long-delayed answer, the question of whether women – or at least, pregnant women – are still persons endowed with all the human, civil, and constitutional rights that personhood bestows, is once again in play. And the evidence suggests that the answer is, at best, a "maybe".

This week, just in time for the 40th anniversary of Roe v Wade, the National Advocates for Pregnant Women (NAPW) released a study (pdf) on the "criminalization of pregnancy", as reported last week by the Guardian's Karen McVeigh. It details hundreds of cases of women who were arrested, forced to undergo medical procedures, and held in jails, prisons, or mental institutions.

These arrests and detentions were made possible by the relentless quest to undo Roe v Wade and restrict access to legal abortions. But there is a bigger issue, according to NAPW's executive director Lynn Paltrow:

"We are no longer just talking about [attacks on] reproductive rights, but whether, in the guise of trying to end just abortion rights, we are going to remove pregnant women from the community of constitutional persons."

That sentence should send chills up the spine of any woman in America who is pregnant or who may someday become pregnant (which covers quite a few of us). There are now anti-foeticide laws in 38 states. Colorado and Mississippi have tried (and intend to try again) to pass personhood laws that would grant full constitutional rights to a fertilized egg.

Georgia tried, and thankfully failed, to pass a law that would have had all miscarriages investigated as possible homicides. Alabama did pass a chemical endangerment law that is being used to prosecute (mostly poor and minority) pregnant women suspected of taking drugs. The upshot of all this attempted legislation is that terminating a pregnancy is still lawful, but hundreds of women who miscarry or have stillborn babies can be charged with murder and sentenced as murderers.

Many reproductive rights advocates have long suspected that these various laws are more about controlling women than genuine attempts to protect babies. I would argue that anyone genuinely pro-life should be demanding universal healthcare for pregnant women, not prison terms for a failure to provide their unborn babies with a level of care and well-being they themselves do not enjoy. Whatever the intention of these laws, what has become clear is that rather than protecting the rights of the fetus, this legislation steadily erodes the rights of the women on whom those fetuses are dependent.

The Roe v Wade decision explicitly rejected the argument that fetuses were to be treated as separate constitutional persons under the law. Yet, we now have documented evidence of hundreds of women being forced to undergo medical procedures against their will, against their doctors' advice and sometimes in restraints, on the grounds that the fetus has its own set of rights separate from those of its mother.

Lynn Paltrow recounts the tragic case of Angela Carder, who was ordered by a court to undergo caesarian surgery – against the advice of her doctors, her family, and her own wishes.

"Ms Carder was 27 years-old and 25 weeks pregnant when she became critically ill. She, her family and her attending physicians all agreed on treatment designed to keep her alive for as long as possible. The hospital however called an emergency hearing to determine the rights of the fetus.

"Despite knowing that Caesarian surgery could kill Ms Carder, the court ordered it, claiming that the fetus had independent legal rights. The fetus was born alive but died two hours later. Angela Carder died two days later, with the surgery listed as a contributing factor."

A higher court later ruled that Carder's rights had been violated – scant comfort to her grieving family. The dissenting judge in that ruling, however, gave some frightening insight into what women are up against: he argued that the viable unborn child is a person with rights separate from the pregnant woman, and that an expectant mother by "undertaking to bear another human being places herself in a special class of persons".

I don't imagine that "special class of persons" is one Susan B Anthony, or indeed, any self-respecting woman, would care to be a part of. In this class, a pregnant woman can apparently be expected to forgo her own right to life, whether or not there is a chance that the fetus she is carrying might outlive her.

We (women, I mean) should be grateful that, for now, this particular judge's dissenting opinion is not the law of the land. But these increasingly common opinions, and not the law of the land, are driving continued arrests, detentions, and illegal interventions into the lives of pregnant women.

What does this mean for American women in the future? I do not know, but what is certain is that as legal battles to undo abortion rights continue (and they will), women – and men who care about them – need to realize it's no longer just reproductive rights we have to worry about, but our basic civil and human rights.