The fortieth anniversary of Roe v. Wade, which coincides with numerous challenges to women’s healthcare and reproductive choices, has given us a lens for reconsidering women’s reproductive rights. In this thoughtful post, Prof. Alison Reiheld frames the issue from a bioethicist’s perspective.
In 1972, the year before the landmark Supreme Court case of Roe v. Wade which celebrated its 40th anniversary this January, philosopher Judith Jarvis Thomson published her now-famous article, “In Defense of Abortion.” She played the unusual card of granting that fetuses are fully persons. Arguing over that claim, she suggested, prevents us from discussing other serious moral issues related to abortion. Her focus is on whether one person can ever justifiably be compelled to sustain the life of another against his or her will.
She asks us to imagine that you—whether you are a man or a woman—are hooked up to an ailing Violinist who needs to use your body for life support for nine months until his treatment is complete. Then you can be unhooked and go about your business. If you disconnect yourself and walk away, he will die. Thomson concludes that no one can be justifiably compelled to provide life support in such a situation. It would be good of you to do so, as it is good of the Good Samaritan in the New Testament of the Christian Bible to stop and render aid. But it is not required, and it is deeply wrong to compel people to be Good Samaritans. This, she contends, is analogous to asking a woman to continue a pregnancy against her wishes. In considering the biologically necessary fact that a woman’s body is like a sheltering “house” for a fetus, Thomson enjoins us to remember that women are nonetheless persons who house fetuses rather than mere houses. Forty years after Roe, we must still face this issue as states and medical professionals increasingly exert control over pregnant women’s bodies.
This kind of control takes several forms. One is criminal penalties for “irresponsible behavior” during pregnancy, whether or not it leads to criminal charges. This motivating idea is behind the image you see, below. Since the recent release of a scholarly evaluation of prosecutions related to pregnancy, there has been increasing press coverage of what is being called “the criminalization of pregnancy.” Of course, this is something of a misnomer: it is not being pregnant that is criminalized, but failing to respond to being pregnant by curtailing any and all behaviors which pose a risk to the fetus. Guardian journalist Karen McVeigh reported on the results of an article published in the Journal of Health Politics, Policy, and Law and released January 15 of this year. The study documented 413 civil and criminal cases across 44 states in the U.S. Less severe examples include a pregnant woman who refused a doctor’s recommendation for a gestational diabetes test and was then institutionalized in a locked psychiatric ward and another who was kept incarcerated by an Ohio judge in order to prevent her from obtaining an abortion before the gestational stage at which elective abortions become illegal. One of the most severe is the case of Bei Bei Shuai, an Indianapolis woman who was 30 weeks pregnant when the man who got her pregnant left her; she attempted to commit suicide by eating rat poison. Her attempt failed, but in the process she delivered prematurely. The infant survived the delivery and was placed on life support, but eventually died. A few months later, Shuai was arrested and charged with murder and attempted feticide. A verdict has not yet been rendered.
McVeigh adds to this list with two examples which occurred in January of 2013 just as the JHPPL study was about to be published:
Earlier this month, Maria Guerra, of Memphis, Tennessee, was charged with child endangerment and driving under the influence after she was found to be four months pregnant, even though her blood alcohol level was under the legal limit. In Oklahoma, this month, Jamie Lynn Russell, 33, died in agony from a ruptured ectopic pregnancy in jail. Police, who were called to a hospital where Russell sought help for severe abdominal pain, charged her with drug possession after finding two prescription pills that did not belong to her. Such use of criminal and civil penalties is ongoing, and is encouraged by the increasing number of bills in State legislatures which claim full personhood for embryos and fetuses, add harsher penalties and additional charges for assault or murder of a pregnant woman over a woman who is not pregnant, and others which give increasing legal stature to fetuses without consideration of or concern for the effects on the women who gestate those fetuses.
Another form of control is overriding women’s medical treatment choices. As Sadhbh Walshe wrote recently in The Guardian, conveying another aspect of the results from the JHPPL article, “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.” Walshe relays the case of Angela Carder, a 27-year-old woman who was only 25 weeks pregnant when she became terribly ill. She and her doctor designed a course of treatment to keep her alive as long as possible, but the hospital called a court hearing to determine the rights of the fetus. The judge ordered a C-section against Ms. Carder’s will and against the advice of her own physician, claiming independent legal rights for the fetus. The surgery was performed. The fetus died within hours, and Ms. Carter died within days. Her death certificate indicated that the surgery had been a contributing factor. As Sadhbh Walshe notes, a higher court vindicated Ms. Carter’s rights eventually, but a dissenting judge worryingly wrote that an expectant mother by “undertaking to bear another human being places herself in a special class of persons.”
My own readings on this subject brought to my attention the case of Florida resident Samantha Burton. In March of 2009, at 25 weeks gestation, she visited her doctor who then discovered signs of a potential miscarriage. He ordered bed rest. However, Burton argued that as a working mother with two dependent children who need both her care and her income, she could not readily comply with complete bed rest for the remainder of her pregnancy. She asked for a referral to another physician for a second opinion. Instead, her physician called state authorities who forcible admitted Burton to the hospital an compelled her to cooperate with medical recommendations. She lost the pregnancy anyway, sued the state of Florida for violating her constitutional rights… and lost. The State’s argument? It was preserving the “status quo.” In this case, the “status” to be preserved was the continued gestation rather than Ms. Burton’s right to control her own medical treatment. Ms. Burton appealed the case and the District Court of Appeals eventually vindicated her rights. Both Ms. Carter and Ms. Burton were eventually supported by the government, but both only after appeals and both found that existing laws plausibly allowed authorities to abrogate well-established rights of informed consent and refusal to medical treatment.
Like the use of criminal and civil penalties that would not come into play if not for the status of pregnant women, these well-established patient rights would be more likely to be respected not only by courts but also by health care providers if pregnant women were not seen to be a different kind of citizen than any other.
In the late 1980’s and early 1990’s, philosophers and bioethicists urged caution about treating women as mere “fetal containers,” a kind of objectification as bad or worse than treating them as mere sex objects. In 1986, Greg Annas used just this term when he detailed the first instance of a woman criminally charged for acts and omissions during pregnancy in a Hastings Center Report article. Four years later, Laura Purdy asked “Are pregnant women fetal containers?” in the journal Bioethics. She argued then that it was unjust to coerce women to accept medical advice just because they happened to be pregnant. These were careful scholars writing in widely-read publications not known for radicalism. They were sounding a warning. And for all our steps forwards on women’s issues I fear that on this path, we tread backwards.
I do not mean to suggest we will end up in a world like Margaret Atwood’s A Handmaid’s Tale, in which the very small percentage of fertile women are obligated to bear children for the survival of the human race. However, that tale’s horrors were meant to investigate what could happen if an entire society agreed that a fertile woman’s preferences and values should always take second place to the reproductive preferences and values of society and powerful individuals. It was meant to investigate what could happen if women were reduced to mere houses rather than persons who house fetuses. It was meant to investigate what could happen if they came to be seen as fetal containers.
We are a long way from A Handmaid’s Tale. But are we too close for comfort?