Personhood versus Pregnancy and Cannabis

Prosecuted for Pregnancy and Cannabis Consumption

Time Magazine looks at Fetal Personhood in Post Roe Era

The Supreme Court declined to weigh in on fetal personhood in Dobbs: “Our opinion is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth,” Alito wrote. It remains to be seen how fetal personhood will hold up in court in Arizona and elsewhere. “I think the challenge for many of us is that we will be living in a legal gray area for a long time,” says Dana Sussman, the deputy executive directive at the National Advocates for Pregnant Women, which provides legal defense for pregnant people, including women who have had abortions. “Case law will have to be developed, or statutes will have to be clarified, because the scope of [Roe’s fall] is just so monumental, I don’t know that anyone truly has an answer to how this will all play out.”

Fetal personhood laws could also have major implications for pregnant people. If a fetus is legally considered a person, then child endangerment laws can apply. A state could potentially say pregnant people can only eat certain foods, or punish a pregnant person who is seen drinking, or compel someone to have a cesarean section they are refusing, says Kluchin. If a pregnant woman must undergo chemotherapy for cancer treatment, adds Ziegler, she could in theory be told to delay care until she gives birth so she does not harm the fetus, as the New Yorker reports has “routinely” occurred with pregnant women in Poland. (Many U.S. abortion laws have narrow exceptions for when the mother’s life is in danger.)

A peer-reviewed study by the National Advocates for Pregnant Women (NAPW) found 413 cases from 1973 to 2005 of women who were arrested or otherwise deprived of their physical liberty because they were accused of hurting their fetus, often because they were found to have tested positive for drugs. And the numbers are picking up: a similar study by NAPW examining data from 2006 to 2020 found roughly 1,331 examples of such cases. (The majority of cases in the NAPW study resulted in healthy birth outcomes.) Some states have laws specifically extending a viable fetus separate legal protections from those of the pregnant person, while in others prosecutors have extended child endangerment or homicide laws to instances where a fetus was harmed.

With the fall of Roe, anti-abortion activists are calling for broader laws that extend similar legal protections to embryos and fetuses. Some were previously ruled unconstitutional, like Georgia’s HB 481, which includes language that states “natural persons include an unborn child,” allows people to claim a fetus as a dependent on tax forms, and requires state officials to count a fetus toward Georgia’s population for official population count purposes. The law was struck down in 2020, but after the Supreme Court overturned Roe on Friday, Georgia’s attorney general filed a notice requesting the decision be reversed.

Historic look at Fetal Personhood (from ProPublica

1973

U.S. Supreme Court decides Roe v. Wade, making abortion legal in all 50 states. But in his majority opinion, Justice Harry Blackmun notes, “If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment.” A week later, a Maryland congressman proposes a Human Life Amendment — the first of more than 330 versions proposed or introduced over the next four decades.

1980

The election of Ronald Reagan and a GOP Senate with many new pro-life members raises hopes among abortion opponents for passage of a constitutional amendment.

1983

The Senate holds its first — and only — floor vote on a Human Life Amendment. The measure fails by a wide margin, and personhood proponents shift to a strategy of changing laws at the state level.

1986

Minnesota becomes the first state to pass a “fetal homicide” law, followed quickly by North Dakota. By 2014, 38 states have similar statutes.

1989

A Florida mother named Jennifer Johnson becomes the first known American woman to be convicted of delivering drugs to her baby through the umbilical cord. The conviction, obtained under a statute meant for drug traffickers, is later unanimously overturned.

1997

In Whitner v. South Carolina, the South Carolina Supreme Court rules that pregnant women who endanger their viable fetuses — specifically by using illegal drugs — may be prosecuted under state child abuse laws. The ruling is the first (and until 2013, the only) by a state high court allowing the criminal prosecution of pregnant drug abusers for endangering their unborn children.

2001

In Ferguson v. City of Charleston, the U.S. Supreme Court says a state hospital’s rule requiring pregnant women to be tested for drugs and positive results to be reported to police violates the 4th Amendment. But the ruling is narrowly tailored, and by 2014, drug-testing of pregnant women and newborns is common in many states.

Arizona becomes the first state to grant birth certificates for stillborn babies. The so-called Missing Angels movement takes off, and by 2014, more than 30 states have similar laws.

2004

Congress passes the Unborn Victims of Violence Act, the first federal law making it a crime to harm or kill a fetus during an act of violence against the mother. UWVA only covers federal crimes, and its passage triggers a new wave of similar laws at the state level.

2008

Kristi Burton, a homeschooled college student in Colorado, almost singlehandedly gets Amendment 48, a ground-breaking measure that defines a constitutionally protected person as “any human being from the moment of fertilization,” onto the state ballot. Voters reject the measure by 3 to 1, but the group Personhood USA is born, and a new, more militant personhood movement emerges.

2011

Mississippi personhood proponents succeed in getting Initiative 26, which would amend the state constitution to grant full legal rights to fertilized eggs, on the November ballot. Eight weeks before the election, the measure seems sure to pass. But after doctors and abortion-rights groups mount a campaign arguing that the measure would have far-reaching effects on birth control, in vitro fertilization, and a doctor’s ability to provide care for pregnant women, voters reject the initiative by a wide margin.

2012

A unanimous Oklahoma Supreme Court throws out a ballot measure that would have given embryos full personhood rights, ruling it “clearly unconstitutional” because it would ban abortion. The U.S. Supreme Court declines to hear an appeal and the voters never get a chance to weigh in.

2013

In Ex Parte Ankrom and Kimbrough, the Alabama Supreme Court rules that the state’s chemical endangerment law, written to protect children from dangerous meth labs, can be used to prosecute women who use drugs during pregnancy. Personhood USA hails the ruling as “the most important affirmation of the personhood of the pre-born child since [Roe].”

North Dakota lawmakers become the first in the U.S. to pass a personhood amendment. But the measure — which would alter the state constitution to say, “The inalienable right to life of every human being at any stage of development must be recognized and protected”—must be ratified by voters.

2014

Tennessee becomes the first state to enact a law specifically allowing prosecution of pregnant women who use drugs. The criminal assault statute carries penalties of up to 15 years in prison.

The National Personhood Alliance, an offshoot of Georgia Right to Life, announces its formation. The group describes itself as “Christ-centered” and “biblically informed… dedicated to the non-violent advancement of the recognition and protection of the God-given, inalienable right to life of all innocent human beings as legal persons at every stage of their biological development.”

Personhood politics play a big role in the November elections. North Dakotans weigh Measure 1, the proposed amendment approved in 2013. In Colorado, Amendment 67, aka Brady’s Law, seeks to amend the state constitution to include unborn human beings under the definition of “person” and “child” throughout the state’s criminal code and is a key issue in the race for the U.S. Senate.

 

Prosecution of Pregnant People 

In 2013, the Journal of Public Health Law and Policy published National Advocates for Pregnant Women (“NAPW”) peer-reviewed study documenting arrests, detentions, and equivalent deprivations of physical liberty of women between 1973 and 2005 in which being pregnant was a necessary element of the crime or a “but for” reason for the coercive or punitive action taken. The study documented 413 such cases. NAPW has further documented approximately 1,331 such cases from 2006-2020. While each case’s records reside in NAPW’s files, the sources below, taken together, document nearly all of the 1,331 criminal cases independently identified or verified by NAPW. This equals over 1,700 cases between 1973-2020.

Download PDF Version

Investigative Reports, Research and Commentaries:

Lynn M. Paltrow, Constitutional Rights for the “Unborn” Would Force Women to Forfeit Theirs, Ms. Magazine (Apr. 15, 2021) (reporting more than 1, 200 cases from 2006-2020 nationwide)

Wendy A. Bach, Prosecuting Poverty, Criminalizing Care , 60 Wm. & Mary L. Rev. 809 (2019) (documenting 124 cases in Tennessee from 2014 to 2016)

If/When/How: Lawyering for Reproductive Justice, Roe’s Unfinished Promise: Decriminalizing Abortion Once and For All (2019) (documenting 21 arrests of people who end their pregnancies and those who have supported them in 20 states since 1973-2018)

Editorial Board, A Woman’s Rights, N.Y. Times, (Dec. 28, 2018)

Grace Elizabeth Howard, The Criminalization of Pregnancy: Rights, Discretion, and the Law 64–65, 68–70 (Oct. 2017) (unpublished Ph.D. dissertation, Rutgers University) (documenting 182 cases in South Carolina, 501 cases in Alabama, and 99 cases in Tennessee from 1973 to 2015)

Lynn M. Paltrow & Lisa K. Sangoi, The dangerous state laws that are punishing pregnant people: In the past 10 years, arrests and forced interventions of pregnant women have skyrocketed, ThinkProgress (Sept. 28, 2016) (reporting more than 1,000 cases in the United States from 1973-2016)

Nina Martin, Take a Valium, Lose Your Kid, Go to Jail: In Alabama, Anti-Drug Fervor and Abortion Politics Have Turned a Meth-Lab Law into the Country's Harshest Weapon Against Pregnant Women, ProPublica, (Sept. 23, 2015) (documenting 479 cases in Alabama from 2006 to July 2015)

Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women's Legal Status and Public Health, 38 J. Health Pol., Pol’y, & L. 299 (Apr. 2013); (Documenting 413 cases across the United States from 1973-2005)

Books:

Michele Goodwin, Policing the Womb: Invisible Women and the Criminalization of Motherhood (2020)

Linda C. Fentiman, Blaming Mother: American Law and the Risks to Children’s Health (2017)

Jeanne Flavin, Our Bodies, Our Crimes: The Policing of Women’s Reproduction in America (2009)

Documentaries and Video:

Jo Ardinger, Personhood: Policing Pregnant Women In America (2019)

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