Beyond Abortion: The Consequences of Overturning Roe.

The upcoming U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization has the potential to eliminate or severely restrict access to legal abortion care in the United States. We address the impact that the decision could have on abortion access and its consequences beyond abortion care. We posit that an abortion ban would, in effect, mean that anyone who becomes pregnant, including those who continue a pregnancy and give birth to healthy newborns and those with pregnancy complications or adverse pregnancy outcomes will become newly vulnerable to legal surveillance, civil detentions, forced interventions, and criminal prosecution. The harms imposed by banning or severely restricting abortion access will disproportionately affect persons of color and perpetuate structural racism. We caution that focusing on Roe as a decision that only protects ending a pregnancy ignores the protection that the decision also affords people who want to continue their pregnancies. It overlooks the ways in which overturning Roe will curtail fundamental rights for all those who become pregnant and will undermine their status as full persons meriting Constitutional protections. Such a singular focus inevitably obscures the common ground that people across the ideological spectrum might inhabit to ensure the safety, health, humanity, and rights of all people who experience pregnancy.

Arrests of and forced interventions on pregnant women in the United States, 1973-2005: implications for women's legal status and public health.

In November 2011, the citizens of Mississippi voted down Proposition 26, a "personhood" measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses. This proposition raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions. Over the past four decades, descriptions of selected subsets of arrests and forced interventions on pregnant women have been published. Such cases, however, have never been systematically identified and documented, nor has the basis for the deprivations of liberty been comprehensively examined. In this article we report on 413 cases from 1973 to 2005 in which a woman's pregnancy was a necessary factor leading to attempted and actual deprivations of a woman's physical liberty. First, we describe key characteristics of the cases and the women, including socioeconomic status and race. Second, we investigate the legal claims made to justify the arrests, detentions, and forced interventions. Third, we explore the role played by health care providers. We conclude by discussing the implications of our findings and the likely impact of personhood measures on pregnant women's liberty and on maternal, fetal, and child health.

Roe v Wade and the new Jane Crow: reproductive rights in the age of mass incarceration.

All pregnant women, not just those who seek to end a pregnancy, have benefited from Roe v Wade. Today's system of mass incarceration makes it likely that if Roe is overturned women who have abortions will go to jail. Efforts to establish separate legal "personhood" for fertilized eggs, embryos, and fetuses, however, are already being used as the basis for the arrests and detentions of and forced interventions on pregnant women, including those who seek to go to term. Examination of these punitive actions makes clear that attacks on Roe threaten all pregnant women not only with the loss of their reproductive rights and physical liberty but also with the loss of their status as full constitutional persons.

Punishing pregnant drug-using women: defying law, medicine, and common sense.

The arrests, detentions, prosecutions, and other legal actions taken against drug-dependent pregnant women distract attention from significant social problems, such as our lack of universal health care, the dearth of policies to support pregnant and parenting women, the absence of social supports for children, and the overall failure of the drug war. The attempts to "protect the fetus" undertaken through the criminal justice system (as well as in family and drug courts) actually undermine maternal and fetal health and discourage efforts to identify and implement effective strategies for addressing the needs of pregnant drug users and their families. In this article, the authors seek to expose some of the flawed premises on which the arrests, detentions, and prosecutions are based. The authors highlight the inherent unfairness of a system that expects low-income and drug-dependent pregnant women to provide their fetuses with the health care and safety that these women themselves are not provided and have not been guaranteed.

Obstetricians and the rights of pregnant women.

At times, obstetricians are called upon to assist pregnant women in making clinical choices between options that may selectively disadvantage either the mother or the fetus. If a mother chooses a therapeutic course that disadvantages the fetus the physician may feel distressed. In this paper we argue that the choices made by mothers are almost always in the interests of the fetus, and supported by physicians. When there is disagreement it is often due to poor communication. While acknowledging that the rare circumstances in which the physician and patient wish to pursue different clinical paths can be stressful for the provider, we explain why obstetricians should accept the judgment of their patient in all instances. Finally, we will maintain that positing a choice between maternal and fetal interests is, in fact, creating a false choice, in as much as options are presented as being exclusive, when in fact that is not the case.

Melissa Rowland and the rights of pregnant women.

On March 11, 2004, the State of Utah charged Melissa Rowland with the murder of her stillborn fetus, claiming that the death resulted from her rejection of the advice of her physicians to have a cesarean delivery. Although Ms. Rowland avoided the homicide charge by pleading guilty to lesser child endangerment charges, the approach taken by the State raises important and troubling issues regarding the autonomy rights of pregnant women, as well as their right to speak on behalf their unborn children. We use this case to review relevant ethical principals and legal precedents. We conclude that if Ms. Rowland is to be judged legally culpable for the death of her fetus, then the courts must first create a new and significant exception to the doctrine of informed consent and the common law and constitutional principles upon which it is based. Such a precedent could introduce a substantial disparity between the rights of pregnant women and those of all other persons. We would argue that a better means of assuring the health interests of the pregnant woman and the fetus in similar circumstances is through advocacy by obstetricians for pregnant women's fully realized rights, including the right to informed consent.

Perinatal substance abuse and human subjects research: are privacy protections adequate?

Privacy incursions in the clinical care of substance abusing pregnant women have gained lay and professional attention recently as the result of a high-profile Supreme Court finding in Ferguson vs City of Charleston et al. In March, 2001 the Supreme Court determined that nonconsensual drug screening of pregnant women by clinicians in a public hospital violated the women's Fourth Amendment rights to be secure against unreasonable search and seizure. Coercive or punitive policy approaches to perinatal substance abuse are often based on mistaken assumptions about the nature of addiction and the outcomes of punitive interventions. Much attention has been given to efforts to criminalize pregnancy for drug using women, and civil laws are also coming under increasing scrutiny. Although no state has passed a law criminalizing pregnancy and drug use, an estimated 250 women in more than 30 states have been prosecuted around the country on theories of "fetal abuse." A growing number of states (eighteen to date) have amended their civil child welfare laws to address specifically the subject of a woman's drug use during pregnancy. No one has examined how these laws and social policies could affect research that includes pregnant and parenting women; women (and their families) who stand to lose a great deal should their drug use be brought to the attention of child welfare or criminal justice authorities. We examine the adequacy of current protective mechanisms, such as federal certificates of confidentiality, in protecting research subjects (and investigators) who may be subject to punitive civil or criminal sanctions. We determine that current protective mechanisms may be insufficient to protect research subjects and that investigators and IRB members are often ignorant of the risks imposed by punitive policy approaches to perinatal substance abuse or fall prey to the same mistaken assumptions that inform punitive policies. We conclude that investigators and IRB members have a moral responsibility to understand local, state and national policies and laws governing perinatal substance abuse. Investigators and IRB members should balance the harms of punitive interventions against the protections that may, or may not be afforded to prospective research subjects as well as the prospective benefits, individual and social, of the research. In situations where criminal or punitive policies are in effect, investigators and IRB members should consider whether adequate protections can be achieved. In the context of inadequate protections, potential risks to prospective research subjects and their families may outweigh the individual or social benefits that accrue from the research. Clinical researchers are professionally obligated to work toward amending laws and policies that are not in the best interests of prospective research subjects.

The war on drugs and the war on abortion: some initial thoughts on the connections, intersections and effects.

While many people view the war on abortion and the war on drugs on the part of state and federal governments in the USA as distinct, there are in fact many connections and a great deal of overlap between the two. Their histories, the strategies used to control and punish certain reproductive choices and those to control the use of certain drugs, the limitations that are placed on access to abortion and other reproductive health care and drug treatment, and the populations most harmed by those limitations are remarkably similar. These similarities are particularly apparent where the issues coalesce in the regulation and punishment of pregnant, drug-using women [1]. Efforts to control reproduction and drugs are rooted in forms of bigotry and prejudice that are essentially the same; African-American women are particularly harmed by them [2]. These efforts reflect a common political agenda and draw attention away from real underlying issues, including poverty, race discrimination and lack of a coherent national health care policy. Those who fight against each of them must recognize that they have a common cause and need a comprehensive strategy to address both as fundamental issues of social justice.