The Senate is scheduled to vote today on S. 2311, a law making it a crime to perform or attempt to perform an abortion after 20 weeks of pregnancy. Make no mistake, this law, which according to its supporters serves the purpose of protecting “pain-capable unborn children” is about far more than abortion: It is a law that defames women, denies their humanity, and establishes legal principles that will be and have already been used to justify arrests of and forced medical interventions on pregnant women who have no intention of ending their pregnancies.
The Senate is scheduled to vote today on S. 2311, a law making it a crime to perform or attempt to perform an abortion after 20 weeks of pregnancy. Make no mistake, this law, which according to its supporters serves the purpose of protecting “pain-capable unborn children” is about far more than abortion: It is a law that defames women, denies their humanity, and establishes legal principles that will be and have already been used to justify arrests of and forced medical interventions on pregnant women who have no intention of ending their pregnancies.
The fact is that children would not exist nor would the species survive but for the women who become pregnant and at some significant risk to their own lives and health, give birth and bring forth life. Sometimes, very rarely, some of these pregnant women need to have an abortion after 20 weeks. Pregnant women are human beings who are capable of experiencing pain; who are physically and psychologically affected by stress, and who experience physical as well as psychological and emotional health conditions in the course of their lives. This law denies all of this.
According to this proposed legislation, we must consider only the purported stress and pain of the unborn (defined as existing from the moment of fertilization). Pursuant to this law, doctors may be arrested and sent to jail for up to five years for providing abortions that are needed to protect a woman’s physical and mental health. It is a law declaring that it is a crime to take a pregnant woman’s “psychological and emotional condition” into account. Simply put, the Senate is voting on a law that says that neither women nor their suffering count.
This proposed legislation, that has already passed in the House of Representatives (H.R. 36), and that President Trump has repeatedly announced his support for what he calls “this important law,” also provides precedent for acts of government violence against pregnant women who have no intention of ending their pregnancies.
Each year, six million women in the United States become pregnant. Approximately four million women go to term, nearly one million have abortions, and nearly one million women experience pregnancy losses, including thousands of stillbirths that occur after 28 weeks of pregnancy. All of these women are at risk as a result of this Senate Bill and the 20-week bans that have already been passed in more than a dozen states.
Prosecutors, police, and sometimes even doctors claim that if the state may protect the unborn by depriving pregnant women of their rights in the abortion context, consistency requires that pregnant women be deprived of their rights in all contexts, including birth and pregnancy loss. Indeed, this proposed legislation asserts that its authority to create a federal law criminalizing abortion comes from “a compelling governmental interest in protecting the lives of unborn children.”
It is exactly this claim that has been used to carry out and justify forced cesarean surgery on Rinat Dray who was left with a permanent injury to her bladder. It is the same justification used to defend holding Samantha Burton prisoner in a Florida hospital and forcing her to undergo surgery – neither of which prevented a pregnancy loss but did deprive her of a multitude of constitutional rights and kept her from caring for the daughters she had at home. “Protecting” unborn lives is the rationale used to arrest a pregnant woman who sought help in Iowa after falling down a flight of stairs and for a law in Wisconsin that allows the state to lock up pregnant women from the moment they carry a fertilized egg – with a lawyer for the embryo and none for the pregnant woman.
Increasingly, prosecutors are arguing that if the government may protect unborn lives through laws that force a woman to carry her pregnancy to term, then they should also be able to use the law to punish pregnant women who have miscarriages or stillbirths and failed to go to term. Indeed, relying on exactly this argument and even sometimes citing state 20-week bans, prosecutors have charged such women with crimes including manslaughter, murder, and depraved heart homicide.
These are not isolated arrests and prosecutions limited to one state or region of the country. Jeanne Flavin and I co-authored an article in the Journal of Health Politics, Policy and Law documenting more than 400 cases involving the arrests and detentions of, and forced medical interventions on, pregnant women taking place between 1973 and 2005. Since 2005, at least 700 additional cases have been documented. All rely on precisely the same principles dehumanizing pregnant women that would be enshrined in national law if S. 2311 passes.
None of us would be here without a woman who became pregnant and went to term. S. 2311 betrays these women and would set a precedent reaching far beyond the issue of abortion. This is why people, whatever their views on abortion, should oppose S. 2311 that demeans and denies the rights, health, and lives of the human beings called pregnant women.
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STATEMENT by Lynn Paltrow, Executive Director, National Advocates for Pregnant Women, 29 January 2018, by email.