Many people fear that the new Supreme Court will overturn Roe v. Wade, stripping women of their right to choose whether or not to procure an abortion. But there is more at stake, according to Naomi Randolph in a 2019 Ms. Magazine article: pregnant women could face a higher risk of criminal charges for miscarriages or stillbirths, due to lawmakers in numerous states enacting laws that recognize fetuses as people, separate from the women carrying them.
One example that Randolph provided is in Alabama, where voters recently passed a measure that “endows fetus’ with ‘personhood’ rights for the first time, potentially making any action that impacts a fetus a criminal behavior with potential for prosecution.” Collectively, laws like Alabama’s have resulted in hundreds of American women facing prosecution for the outcome of their pregnancies.
In Arkansas, Anne Bynum was convicted of “concealing a birth” when she delivered a stillborn child at her home in 2015, per an Arkansas statute that leaves women vulnerable to conviction if they wait even a minute before contacting authorities. In Mississippi, Rennie Gibbs faced murder and subsequently manslaughter charges at age sixteen after delivering a stillborn child. Although experts advised that drugs were not the cause of the baby’s death, the jury concluded she had “willfully, and feloniously” killed the child by using drugs.
The cases all vary in detail, but the commonality is women losing their rights if they are thought to be endangering a fetus. Commenting on efforts to charge women for any conduct that could conceivably endanger their pregnancies, in 2016 Lynn Paltrow, the director of the National Advocates for Pregnant Women, told the Guardian, “We have gone and created a unique, gender-based crime, where the action actually requires a pregnancy to be a crime.”
As Randolph detailed, this especially hurts women of color and low-income women, due to their lack of access to contraceptives, abortion, and treatment for mental health conditions or addiction. She added that they are also “most likely to lack the resources necessary to avoid incarceration, or to pay the fines and fees to get out of jail once they’re locked up.”
If Roe v. Wade is overturned, the criminalization of miscarriages could become an even bigger problem. The Trump administration has been combative to women’s reproductive rights from day one. As Naomi Randolph explained, proposed policy changes to the Affordable Care Act would “allow employers to deny women no-cost birth control based on their religious and ‘moral’ beliefs.” This followed proposals to change Title X, which could limit funding to family planning services like Planned Parenthood. The research shows that if access to birth control is diminished, the rates of unintended pregnancies will rise. Trump’s conservative Supreme Court Justice appointee Brett Kavanaugh is believed likely to provide the fifth vote necessary to striking down Roe v. Wade. If that happens, women may not only face prosecution for seeking out abortions, but could also lose basic protections when they are pregnant and parenting.
The New York Times is the only corporate source that has discussed this topic. However, the Times has only touched on it in opinion pieces—including, notably, a feature from December 2018 titled “A Woman’s Rights”—rather than as a topic featured in headlines and news stories. This issue has mainly been covered by independent news sources such as Ms. Magazine and Rewire.News.
Naomi Randolph, “What Losing Roe Would Mean for Women of Color,” Ms. Magazine, January 22, 2019, https://msmagazine.com/blog/2019/01/22/losing-roe-mean-women-color/.
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