Jesi Taylor Cruz
Jun 27, 2019 · 6 min read

You Can’t Be Pro-Life or A Sanctuary City and Ignore Violence Against Pregnant People

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(Photo: a katz / Shutterstock)

Consider for a moment that you’re a person who has been trying to conceive. You’ve had your nursery furnished and decorated, you have a pediatrician chosen, you’ve moved into an area specifically because of the school district. Childcare options are set. You already know that once you get a positive reading on a pregnancy test, you (and your partner[s]) will (possibly) change your diet and lifestyle immediately to best prepare for as healthy a pregnancy and delivery as possible. For you and the baby.

You may even have a name picked out for the baby. The baby. Because as soon as you know that you’re pregnant, the potential child at the end of the pregnancy is already real for you. That is valid. You aren’t just carrying a lump of cells, you’re growing your child.

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A transfeminine non-binary person and transmasculine gender-nonconforming person embracing. (Image Source: The Gender Spectrum Collection)

The word “telos” refers to an end, aim, or goal. Teleology refers to something’s ultimate purpose or function. As Aristotle writes, an acorn’s intrinsic telos is to become a full grown oak tree. When we refer to something teleologically, we’re really just talking about what something’s ultimate purpose is. When we talk or think about what something’s purpose is, or what that thing truly is in essence, we’re getting down to the fundamental nature of something.

Part of that is about why something ultimately is, especially teleologically speaking. When we’re talking or thinking about essence, we’re talking about what something is by necessity. Without X, this entity would no longer be what it fundamentally is.

The meaning we attach to things, people, and other living things impacts how we categorize them. An acorn is a nut of the oaks. Seeded. Shelled. Squirrel snacks. A potential oak tree. A key factor in forest ecology. Zygotes are not acorns, of course. The desires and choices of the gestational parent determine what a “lump of cells” essentially is. Maybe just a fertilized ovum (that will not be carried to term). Maybe a potential child.

I think it’s important to add nuance to conversations about pregnancy, conception, and fetuses. Especially given the desires and choices of gestational parents. Especially when it comes to reproductive justice. A “lump of cells” is just a “lump of cells” until it isn’t. Until it’s something else. Until it becomes something else because due to the desires of the gestational parent.

In Reproductive Negligence, Dov Fox outlines different types of negligence that ought to be given greater consideration in tort law: those that involve harms suffered by parents in the process of planning to prevent or begin the process of procreation. At the very least, Fox argues, there ought to be a more inclusive conceptualization of negligence and harm when it comes to reproductive justice. While typical cases involve “mishandling sperm, eggs or embryos that infertile patients froze for the purpose of later using to have children” or, more generally, “[depriving] people of the chance for wanted pregnancy or parenting”, I’d argue that cases involving harms suffered by gestational parents and their unborn children are worthy of legal protection from unreasonable risk of harm to the carrying parent of unborn child.

Pregnant people are, for instance, abused and otherwise harmed in police custody more often than people realize. Whether in jails, prisons, during arrests, in detention centers, and even in hospitals with law enforcement agents present. Pregnant people, and their unborn children, also suffer hands at the hands of intimate partners, strangers, and other people whose violence results in pain or loss. In some cases, like this recent tragedy, the pregnant person can face the consequences despite being the victim.

Legislation like the Georgia abortion law, and similar “heartbeat” laws represent something even more insidious than we realize. They’re most often associated with cases regarding abortion but they also 1) complicate legislation and policy related to bodily injury or death of unborn children and 2) impact our definitions of injury that relate to the disruption of reproductive plans” that fall within the category of, as Dov Fox suggests, procreation “imposed, denied, or confounded”.

Imagine, for a moment, a Telos-Driven Ontology of Personhood (TDOP). This TDOP argues that unborn personhood status, and protections, depend on the pregnant person’s choice to carry a child to term. Once that prerequisite is satisfied fetal homicide legislation cannot infringe on the reproductive and parental rights of a pregnant person. The gestational parent determines whether a lump of cells is more than that or not. Essentially, potentially.

“Pro-life” and “pro-choice” are just another form of binary thinking. Pregnancy represents a transitional phase with multiple possible outcomes. It’s time for the conversation to include people who choose to carry their pregnancy to term with intent to birth the child…but suffer loss at the hands of another person. Sometimes a “lump of cells” is more than that and should be given rights when the gestational parent has made a conscious choice to carry to term. This is especially important in cases where gestational parents are abused/harmed.

Given literature in the fields of embryology and developmental psychopathology, we know that humans in utero, and during labor and delivery, are susceptible to countless harms that can lead to developmental defects, negatively affected life prospects, or even death. In many states, consequently, amendments have been added to their constitutions specifically with humans in utero in mind that make it possible for assailants who harm pregnant people to be charged on two counts: one for the carrying parent and another for the unborn child. Those fetal homicide laws, while primarily focused on cases related to manslaughter or abortion, showcase the ways in which state law/policymakers can take unborn victims’ rights into account within the realm of legislation.

Some argue that such laws have the potential to instigate an adversarial relationship between the carrying parent and the unborn child given the alleged tension between unborn children’s rights and reproductive rights of the carrying parent. I’d argue, however, that in cases where the carrying parent has chosen to carry their fetus to term with intent to assume the role of legal guardian, or with intent to place the child under the guardianship of another adult who has accepted the role as legal guardian, there is no adversarial relationship created.

Within a framework that accepts the previous claim as true, I argue that there are legal grounds for holding people accountable, via criminal negligence and/or involuntary manslaughter charges, for actions, or the lack thereof, that result in the death of humans in utero or humans in the process of being born. Since humans in utero, and during labor and delivery, are susceptible to countless harms that can lead to developmental defects, negatively affect life prospects, or death, there ought to be legislation that protects those humans from harm or loss of life.

Additionally, in order to avoid creating an adversarial relationship between the carrying parent and the unborn child, I argue that protective legislation would also ensure that gestational parents aren’t harmed during periods of confinement since the biological relationship between the carrying parent and unborn child is relational.

Do you see where I’m going with this? Reproductive justice is about more than abortion. It’s about more than “life” vs “choice. It’s about how inconsistent and NOT universally applied laws related to pregnant people are. The Georgia abortion bill, and related fetal homicide laws, point to a hypocritical double standard in crimes related to feticide and the rights of pregnant people. We have to address this. The right to choose also means the right to choose to parent.

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