Pregnant Women Aren’t People in America

We all know that abortion rights are currently under attack — both legal and physical. And we know that when abortion is illegal, women die. But abortion is not the only reproductive right, nor is it the only one in danger.

Women are dying in America and being deprived of their basic human rights, just because they are pregnant. Courts have put women in jail for endangering their fetuses, subjected them to surgery against their wills, restricted their freedom of movement, and even terminated their parental rights to fetuses still inside their bodies.

Officially, the American legal system values bodily integrity very highly. As the Supreme Court acknowledged in 1891:

“No right is held more sacred, or is more carefully guarded, by the common law, that the right of every individual to the possession and control of his own person, free from all restrain or interference of others, unless by a clear and unquestionable authority of law.”

So highly have American courts prized bodily integrity that they have refused to force people to submit without consent to medical treatment even to save someone else’s life. The most famous example of this is the case of McFall v. Shrimp (1979), where the Court held that Shrimp could not be forced to submit to a bone-marrow extraction and donation to save his cousin’s life. Courts have come to similar conclusions in other cases, holding that even parents could not be forced to donate bone marrow to save their own child’s life.

The idea of mining one person’s body to save another is, in the American legal system, not only illegal but deeply horrify. As the Court wrote in McFall v. Shrimp:

“For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living body tissue causes revulsion to the judicial mind. Such would raise the specter of the swastika and the Inquisition, reminiscent of the horrors this portends.”

This is powerful and evocative legal writing, conjuring nightmare images to describe how deeply wrong it would be to force anyone to undergo invasive medical procedures, even to save a family member’s life. To do so would make us vampires, Nazis, and witch hunters. Pick your personal horror, but unspeakable things would happen.

But when the person in question is a pregnant woman, somehow none of this applies anymore. While Shrimp couldn’t be forced to donate bone marrow to his cousin, women have been charged with murder when they delivered stillborn babies after going against medical advice to undergo a C-section.

Even more horrifying, courts have allowed pregnant women to be literally strapped down and cut open against their wills.

According to a report compiled by the National Advocates for Pregnant Women, there were 413 cases between 1973 and 2005 in which courts infringed on the bodily integrity of pregnant women, including 30 cases of women being forced to undergo C-sections or other major medical interventions.

In one case, George Washington University Hospital won a court order requiring Angela Carder, a terminally ill patient, to undergo a C-section at 26 weeks against her own wishes, the wishes of her husband, and the advice of the doctors on staff at the hospital. Both Carder and her baby died shortly after the operation. The Court of Appeals upheld the decision because, they said, the mother would not have lived much longer anyway. (The court later repudiated its ruling, but not before the surgery had been performed and both mother and baby were dead.)

As feminist philosopher Susan Bordo puts it in her landmark book Unbearable Weight: Feminism, Western Culture, and the Body:

“A woman who no court in the country would force to undergo a blood transfusion for a dying relative had come to be legally regarded, when pregnant, as a mere life-support system for the fetus.”

Think that’s an exaggeration? Last year, Republican politician Steve Martin publicly referred to a pregnant woman as “the host (some refer to them as mothers” when arguing against abortion. He posted on his Facebook wall:

Not only are courts willing to force pregnant women to undergo major surgery that sometimes kills them, as in the case of Angela Carter, but they characterize such invasions of bodily integrity as mere inconveniences to a woman too self-involved to make the necessary sacrifices of motherhood. Bone marrow transplants are described as horrors akin to vampires sucking the life out of people, but refusing to undergo major abdominal surgery is just selfish.

Consider the case of Ayesha Madyun, who refused a C-section on religious grounds. The judge who ordered her to submit to the surgery wrote that for him not to order the operation would be to “indulge” her “desires” at the expense of the safety of her fetus. Forget that a C-section is major surgery that carries serious risks of complication, is followed by a long recovery period, and forever changes a woman’s body so that she may never again be able to have a non-surgical birth. Forget the fact that Madyun refused the surgery because of deeply held religious beliefs that the court would be required to take very seriously in any other situation.

In the court’s eyes, this woman was a mother, so it was her responsibility to abandon everything she believes in, and if necessary her own life and health, for the sake of her baby. Mothers’ bodies, fundamentally, belong to their children rather than themselves. The idea that a mother would insist on her rights is considered blasphemy.

Courts talk in the language of rights for fetuses, but obligations and caring for mothers.

Look at how pregnant women are treated when their choices do not align with what doctors and judges think is best for their fetuses. Consistently, women have been prosecuted for failing to act in the proper manner while they are pregnant. This began with the famous case of Pamela Rae Stewart, who was prosecuted for criminal neglect when she failed to follow medical advice while pregnant, and continues to this day as dozens of women are being arrested for fetal abuse after testing positive for cocaine at prenatal hospital visits.

In Indiana in 2015, Purvi Patel was sentenced to over twenty years in prison for the crimes of feticide and neglect of a dependent. Patel went to an emergency room in July 2013, bleeding and seeking help. When she told doctors she had miscarried and then disposed of the fetal remains in a trash bin, she was arrested for neglect of a dependent, and prosecutors claimed that she attempted to perform an abortion on herself, then gave birth to a live baby that she allowed to die.

But at the same time as a women can be charged with murder or neglect for failing to have surgery to protect a fetus, neither fathers nor the state nor private industry has any responsibility for harm they may inflicting on fetuses, and they are not required to contribute to their care. On the contrary, having an abusive husband or boyfriend often leads to the pregnant woman being arrested herself, if she “fails” to leave the relationship and the abuse causes a miscarriage.

As Susan Bordo argues, the requirement that people must give informed consent before they undergo any medical procedure is “in a very real sense, a protection of the subjectivity of the person involved — that is, it is an acknowledgement that the body can never be regarded merely as a site of quantifiable processes that can be assessed objectively, but must be treated as invested with personal meaning history, and value that are ultimately determinable only by the subject who lives ‘within’ it.”

Some bodies in our society are viewed as worthy of protection because they house the minds of fully realized people. But others — pregnant bodies, immigrant bodies, black bodies — are viewed as mere bodies.

Apparently, the notion that women are people is still as radical as it was fifty years ago.

If we want to protect the rights of pregnant women — and all women, for that matter — we have to start at a much deeper level. We have to talk about how our society views pregnant women’s bodies as impersonal incubators of the all-important fetus.

And in order to do that, we have to root out the belief that the ultimate goal of a woman’s life is to have children. We have to oppose government policies that refer to all women of childbearing age as “pre-pregnant.” We have to stop asking young women when (not if) they plan to have children, and we have to stop telling them that their lives will not be complete until they do.

We have to separate motherhood from womanhood, or else women will continue to be regarded as baby-making machines with no rights of their own.