New Study Shows Anti-Choice Policies Leading to Widespread Arrests of and Forced Interventions on Pregnant Women

Read additional 2013 coverage on the personhood of women here.

The full table of contents for Volume 38, No. 2, of the Journal of Health Politics, Policy, and Law can be found here.

On Tuesday, January 15th, the Journal of Health Politics, Policy and Law will publish our study, “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health.” This study makes clear that post-Roe anti-choice and “pro-life” measures are being used to do more than limit access to abortion; they are providing the basis for arresting women, locking them up, and forcing them to submit to medical interventions, including surgery. The cases documented in our study through 2005, as well as more recent cases, make clear that 40 years after Roe v. Wade was decided, far more is at stake than abortion or women’s reproductive rights. Pregnant women face attacks on virtually every right associated with constitutional personhood, including the very basic right to physical liberty.

Our study identified 413 criminal and civil cases involving the arrests, detentions, and equivalent deprivations of pregnant women’s physical liberty that occurred between 1973 (when Roe v. Wade was decided) and 2005. Because many cases are not reported publicly, we know that this is a substantial under count. Furthermore, new data collection indicates that at least 250 such interventions have taken place since 2005.

In almost all of the cases we identified, the arrests and other actions would not have happened but for the fact that the woman was pregnant at the time of the alleged violation of law. And, in almost every case we identified, the person who initiated the action had no direct legal authority for doing so. No state legislature has passed a law that holds women legally liable for the outcome of their pregnancies. No state legislature has passed a law making it a crime for a pregnant woman to continue her pregnancy to term in spite of a drug or alcohol problem. No state has passed a law exempting pregnant women from the protections of the state and federal constitution. And, under Roe v. Wade, abortion remains legal.

Yet, since 1973, many states have passed feticide measures and laws restricting access to safe abortion care that, like so-called “personhood” measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman. We found that these laws have been used as the basis for a disturbing range of punitive state actions in every region of the country and against women of every race, though disproportionately against women in the South, low-income women and African-American women.

Women have been arrested while still pregnant, taken straight from the hospital in handcuffs, and sometimes shackled around the waist and at the ankles. Pregnant women have been held under house arrest and incarcerated in jails and prisons. Pregnant women have been held in locked psychiatric wards, as well as in hospitals and in drug treatment programs under 24-hour guard. They have been forced to undergo intimate medical exams and blood transfusions over their religious objections. Women have been forced to submit to cesarean surgery. They have been arrested shortly after giving birth while dressed only in hospital gowns. And, despite claims by some anti-choice activists that women themselves will not be arrested if abortion is re-criminalized, women who have ended their pregnancies and had abortions are already being arrested.

Consider the following:

  • A woman in Utah gave birth to twins. When one was stillborn, she was arrested and charged with criminal homicide based on the claim that her decision to delay cesarean surgery was the cause of the stillbirth.
  • After a hearing that lasted less than a day, a court issued an order requiring a critically-ill pregnant woman in Washington, D.C. to undergo cesarean surgery over her objections. Neither she nor her baby survived.
  • A judge in Ohio kept a woman imprisoned to prevent her from having an abortion.
  • A woman in Oregon who did not comply with a doctor’s recommendation to have additional testing for gestational diabetes was subjected to involuntary civil commitment. During her detention, the additional testing was never performed.
  • A Louisiana woman was charged with murder and spent approximately a year in jail before her counsel was able to show that what was deemed a murder of a fetus or newborn was actually a miscarriage that resulted from medication given to her by a health care provider.
  • In Texas, a pregnant woman who sometimes smoked marijuana to ease nausea and boost her appetite gave birth to healthy twins.  She was arrested for delivery of a controlled substance to a minor.
  • A doctor in Wisconsin had concerns about a woman’s plans to have her birth attended by a midwife. As a result, a civil court order of protective custody for the woman’s fetus was obtained. The order authorized the sheriff’s department to take the woman into custody, transport her to a hospital, and subject her to involuntary testing and medical treatment.

As disturbing as our findings are, this study also provides a basis for building a shared public health and political agenda that includes all pregnant women. The current public debate overwhelmingly focuses on the issue of abortion and interference with one kind of right: the right to end an unwanted and untenable pregnancy. This study, however, confirms that if passed, so called “personhood” measures would: 1) provide the basis for arresting pregnant women who have abortions; and 2) provide state actors with the authority to subject all pregnant women to surveillance, arrest, incarceration, and other deprivations of liberty whether women seek to end a pregnancy or not.

Furthermore, the study demonstrates that there is no way to add fertilized eggs, embryos, and fetuses to state constitutions or to the United States Constitution without removing all pregnant women from the community of constitutional persons. These measures create a “Jane Crow” system of law, establishing a separate and unequal status for all pregnant women and disproportionately punishing African-American and low-income women.

For example, last week, a Tennessee woman who had been in a car accident was tested to see if she had been driving under the influence of alcohol. According to local press, her blood alcohol content was well below the legal limit. Nevertheless, because she told a police officer that she was four months pregnant, she was arrested and taken to jail. Tennessee apparently recognizes a special crime reserved just for pregnant women:  driving while not intoxicated.

We are confident that most people in the United States, regardless of their views on abortion, do not want to see pregnant women subjected to a separate and unequal system of law as a result of “pro-life” measures. To that end, we call for a culture of life that values all women, including those who give birth to that life, and recommend:

  • The rejection of “personhood” measures;
  • A moratorium on new feticide laws and a fair and open inquiry into whether such laws—passed with the promise of protecting pregnant women and fetuses—have actually reduced violence against pregnant women or rather increased legal surveillance of women;
  • That health care providers ensure that pregnant women are afforded the same confidentiality, respect, and dignity extended to other patients;
  • That lawmakers adopt policies that promote women’s health and remove barriers to family planning and contraceptive services, abortion services, birthing options, and effective and humane drug treatment, and address the stark racial and economic inequalities that are perpetuated by the United States war on drugs and our system of mass incarceration;

Finally, we call upon legislative authorities and others to affirm the personhood of pregnant women, ensuring that upon becoming pregnant and through all stages of pregnancy, labor, and delivery, women retain their civil and human rights.

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  • frank-pitz

    Gives new meaning to Martin Niemoller’s quote, does it not?

  • arekushieru
    • A woman in Utah gave birth to twins. When one was stillborn, she was arrested and charged with criminal homicide based on the claim that her decision to delay cesarean surgery was the cause of the stillbirth.
    • After a hearing that lasted less than a day, a court issued an order requiring a critically-ill pregnant woman in Washington, D.C. to undergo cesarean surgery over her objections. Neither she nor her baby survived.

    So, here we see how the antis claims that protecting the fetus IS NOT actually their goal.  Women are forced to terminate their pregnancies, even when the life of the fetus is NOT at stake, only difference being that the name for the procedure was NOT abortion.  Hypocrites.

    • In Texas, a pregnant woman who sometimes smoked marijuana to ease nausea and boost her appetite gave birth to healthy twins.  She was arrested for delivery of a controlled substance to a minor.

    Yeah, these antis just love to punish women for their biology.


    In short, I think all this is exactly what antis want.

  • wiseoldsnail

    women who are married to male legislators need to refuse sex with their husbands until they quit demonizing and trying to control women!

  • give-em-hell-mary

    Such a sex boycott by the wives of these misogynists won’t work, because these creeps only have sex with hot hookers supplied by lobbyists.  These creeps haven’t had sex with their wives in years.  That’s why the wife of adulterous Speaker “Boner” lives in Ohio, not D.C.

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  • mloustalot

    Thank you for these juicy bits of gossip, ladies, but this commentary is hardly anything more — or maybe I missed the footnotes. . . and the “personhood of women”? Really? When statistically 1/2 of all babies killed in abortions are female? Stop the baby-hatin’, please. .

    • LB

      Not a “baby”

    • Ella Warnock

      Stop the woman-hatin’, please. Or whatever it is you call what you’re doing on a pro-choice website.

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  • Maryanna Price

    Any and all restrictions on abortion are sex-based hate crimes. If you restrict abortion on demand at every stage of pregnancy, you keep all women from having any rights at all. This IS a black and white issue and I’m tired of “pro-choice” people saying otherwise; either women are people or not. There can be no “middle ground” on when I stop having human rights.

    • nettwench14

      You are absolutely right. This is a CIVIL RIGHTS issue. Was it okay to have Jim Crow in some states while others did not?

  • Ella Warnock

    Hey, women, guess what? If you’re a female of childbearing age, you’re public property, baby! Somehow, I feel like we haven’t come nearly as far as we thought we had. It’s beginning to look like we’ve got to gear back up and start fighting the good fight again.

  • nettwench14

    More and more I feel that women are having their basic civil rights violated by the constant attack on reproductive rights influenced by religious beliefs. Even with Roe. v. Wade, state legislatures could pass laws that put all abortion clinics out of business, and criminalize or refuse access to contraception. There needs to be some kind of FEDERAL statute that overrrides and makes unconstitutional all of these attempts to limit women’s access to whatever medical procedures and choices she has a right to, just like there had to be a FEDERAL law overriding states attempt to enforce Jim Crow laws. There’s a reason that many southern states still have to have any changes to voting procedures supervised by the Supreme Court. This is what needs to happen, or women’s reproductive choices will continue to be attacked. Religious beliefs have no place in medical decisions. Government pandering to these people comes up with disastrous attempts at compromise like allowing employers to refuse contraceptive coverage in women’s health insurance. That is blatant discrimination. An employer does not have the right to force his religious beliefs on his employees. It has to come down from the federal level or women living in certain parts of the country, or going to Catholic Hospitals will have different standards for medical care. Separation of church and state should absolutely be applied to medical care and insurance. Otherwise, it’s death by a thousand cuts.

    • Ella Warnock

      These “religious” business owners have tortured and twisted logic so badly that it’s their completely insane position that leaving it to employees to make their own health care choices constitutes “discrimination” against the fundy business owners? Actually exercising your fundamental freedoms is somehow a threat to THEM? Those of us who aren’t completely batshit crazy really must prevail, because there’s just no compromising or common ground with these people.

  • Arandom Usero

    This is one of the worst articles I have ever read. It is clearly biased, consistently refers to a “study”, yet never tells what the actual study was about or provides a link to it (the one link at the top leads to a broken page), and neither does it provide links to any of these “stories” to which it repeatedly mentions. Whoever wrote this, please work on your writing/reporting skills to make your articles more believable.

    As for everyone else, don’t believe everything you see just because it is written down.