Stealth Fetal Personhood and State-created Maternal-Fetal Harm

As Fetal Personhood proponents worked to expand laws against homicide or child abuse to embryos and fetuses, they embraced the criminalization of pregnant people.

*This in-depth series on Fetal Personhood is free thanks to the financial contributions of loyal subscribers. Please consider supporting rePro-Truth’s fight for repro rights and justice by becoming a paid subscriber today. Your paid subscription enables me to spend invaluable time researching important topics in order to thoroughly counter anti-reproductive-rights misinformation and provide you with information and analysis you can use.

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🟥 In the first post of this series, What is 'Fetal Personhood'?, we learned about the ideology known as Fetal Personhood: its central presumptions and theses, and its underlying beliefs.

🟧 In the second post of this series, Fetal Personhood before Roe v. Wade, we examined the demographic characteristics of the 1960’s anti-reproductive-rights movement’s adherents and their cooptation of Civil Rights rhetoric, and we surveyed the birth of the Fetal Personhood movement in its infancy.

🟨 In the third post.of this series, The rise of Fetal Personhood amendments, we delved into the surprising way that just two short paragraphs found in the Roe v. Wade decision electrified the Fetal Personhood movement. We walked through history, discussing the flood of proposed amendments aimed at codifying Fetal Personhood in the U.S. Constitution. Through this exploration, we gained greater insight into the tactics, motivations, and goals of the proponents of Fetal Personhood

🟩 In today's post, we will dig into the changes in strategy of Fetal Personhood proponents following the defeat of proposed Fetal Personhood amendments to the U.S. Constitution, and the ways in which proponents’ push for laws criminalizing pregnancy led to state-created maternal and fetal harm.

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A New Strategy is Born

As proposed Fetal Personhood amendments to the U.S. Constitution were being introduced in Congress, only to failed each and every time, other amendments were being introduced that were aimed singularly at overruling Roe v. Wade.

For example, Sen. Orrin G. Hatch introduced the Hatch Amendment on September 21, 1981. It sought to overrule Roe while also giving state abortion bans supremacy over any future laws passed by Congress establishing rights to abortion. The amendment simply said:

A right to abortion is not secured by this Constitution. The Congress and the several States shall have the concurrent power to restrict and prohibit abortions: Provided, That a law of a State which is more restrictive than a law of Congress shall govern.

Regarding his proposed constitutional amendment, a reporter asked Senator Orrin Hatch “whether women would be prosecuted if they sought out abortion after being raped.”¹ “Hatch responded that this was the kind of detail that would have to be worked out after the ratification of the amendment. When the reporter pushed Hatch to elaborate,”² Hatch said:

I think we would have a much better chance of getting it through the Congress if those two exceptions (for rape and for the life of the pregnant person) were put in. I personally prefer the constitutional amendment. That makes no exception except to save the life of the mother… I believe we should do whatever we can to protect the sanctity of human life.³

Hatch's amendment failed, as did all the others that explicitly sought to overrule Roe. The Fetal Personhood amendments, too, failed time and time again.

By 1983, anti-abortion activists largely “had to give up on” the idea of passing “a constitutional amendment.”⁴ But abandoning this constitutional campaign was a matter of pragmatism - not ideology. The movement still wholeheartedly supported Fetal Personhood as their ultimate goal.

This new strategy of the Fetal Personhood movement included (but was not limited to):

➊ employing woman-protective anti-abortion arguments (WPAA), coupled with the condemnation of certain women;

➋ working to enact Fetal Personhood through non-abortion related legislation, some of which criminalized women for their behavior and choices during pregnancy; and 

➌ pursuing court orders to force pregnant patients to undergo cesarean sections against their will.

*In this post, we'll examine the first two strategies.

Stealth Fetal Personhood and Punishing Women 

In the mid- to late 1980s, mainstream anti-abortion groups stressed women as victims of abortion - as victims of their own agency and choices - while simultaneously demeaning certain reasons for abortion as frivolous.⁵ Despite the movement’s new enthusiasm for woman-protective anti-abortion arguments (WPAA), “[c]hastising women for seeking out abortions for selfish, immoral, or offensive reasons” was, paradoxically, “one of the cornerstones of the new strategy.”⁶ “[M]ovement members highlighted the blameworthiness of women who chose abortion for [so-called] bad reasons.”⁷

At the same time, Fetal Personhood proponents worked to enshrine Fetal Personhood into state statutes. For example, National Right to Life Committee (NRLC) attorney James Bopp, Jr., along with AUL Attorney Maura K. Quinlan “encouraged sympathetic state legislators to take aim at wrongful birth and wrongful life suits in tort, establishing the personhood of the unborn child directly.”⁸

Activists also “tried to establish fetal rights in other legal arenas, including criminal law.”⁹ Fetal Personhood proponents worked to “expand laws against homicide or child abuse to [embryos/fetuses],” and, in the process, criminalize certain “actions taken by women during pregnancy.”¹⁰

Their efforts proved successful. 

In 1986, Minnesota “became[] the first state to pass a ‘fetal homicide’ law.” Minnesota was “followed quickly by North Dakota” in 1987.¹¹ As of January 2024, 39 states have similar statutes,¹² and “twenty-nine of these laws contain language defining a fetal person as beginning at conception” (emphasis original).¹³ Many lawmakers embraced these laws hoping “to protect pregnant people by discouraging high rates of homicide targeting them. Yet, criminal charges for pregnancy loss and self-managed abortion tripled between the periods of 1973 to 2005 and 2006 to 2020, from 413 to 1,331 cases,” (emphasis added).¹⁴

Additionally, anti-abortion activists “set out to apply child abuse [and] neglect… laws to unborn children.”¹⁵ In doing so, the anti-abortion movement “signed off on the criminal punishment of pregnant drug users and women who had illegal abortions— a position hard to square with the movement’s stated view on the problems with punishing women.”¹⁶

Fetal Personhood and the “War on Drugs”

Because “the effort to expand fetal rights came into conflict with the movement’s emphasis on protecting women,” anti-abortion activists justified their increasing criminalization of pregnant people by villainizing “the actions of pregnant women” during pregnancy.¹⁷

This was perhaps never more obvious than in the late 1980s and early 1990s. “[T]hat was when the war on drugs was on a collision course with the war on abortion.”¹⁸

“[I]t was the moral panic over so-called ‘crack babies’ that took the idea of fetal personhood from fringe to mainstream. At the time, there were widespread fears that prenatal use of crack cocaine could lead to children who might grow to have a number of problems. The narrative contained classic moral panic tropes: children in utero as helpless victim; and a scapegoat that garnered little sympathy within the American public at the time, namely poor, African-American women who used drugs.”¹⁹

During this period, “[s]everal states passed laws that allowed women to be charged with criminal child abuse for exposing their fetuses to illicit substances during pregnancy. These resulted in hundreds of women being jailed in connection with their pregnancies. Just as significantly, the laws also entrenched the concept of fetal personhood into state criminal codes.”²⁰

It was “[t]hrough the fears of and the hysteria surrounding the 'crack baby' epidemic” that Fetal Personhood proponents found a political opportunity to propel their ideological agenda.²¹

Numerous studies now show “that children born to mothers who used crack cocaine while pregnant carry no significant difference in their life outcomes when compared with other children. Nonetheless, the exploitation of the fear at the time was potent. It opened the door to charging women with crimes against their own pregnancies. It also shifted popular opinion on the concept of fetal personhood.”²²

Fetal Personhood and State-created Maternal-Fetal Harm

In most cases of pregnancy criminalization, “pregnancy provides a ‘but for’ factor, meaning that but for the pregnancy, the criminal penalty taken against the pregnant person would not have occurred.”²³ Furthermore, as evidence shows, “Fetal Personhood, as manifested through pregnancy criminalization, is not about protecting fetuses from harm. It is about controlling and punishing pregnant people, particularly women who do not conform to racialized ideals of motherhood,” (emphasis added).²⁴

Rather than protecting the fetus, studies show that the punitive criminalization of drug use during pregnancy “are more likely to worsen rather than improve [maternal and fetal] health outcomes”²⁵ and  “actively undermine fetal health,” (emphasis added).²⁶ In fact, “the odds of a child being born with” a form of drug withdrawal known as neonatal abstinence syndrome “were significantly higher in states that took the harsher approaches.”²⁷ “Through the passage of state fetal endangerment laws… states are actively creating conditions that result in poorer fetal health outcomes—including an increase in fetal and infant death.”²⁸

Research shows that Fetal Personhood laws, as manifested through the punitive criminalization of drug use during pregnancy and other fetal endangerment statutes, cause vulnerable pregnant people to “disengage[] from the health care system… ‘missing key opportunities for interventions’ due to fear of criminalization.”²⁹

For example, during the two years that Tennessee's fetal assault law was in effect, it consistently “undermined the ability of mothers to access prenatal care, worsened birth outcomes, and increased both fetal and infant death rates.”³⁰ “[P]regnant women were avoiding prenatal care, fleeing Tennessee to give birth in neighboring states, and giving birth at home [or in cars] rather than in hospitals. Additionally, the law seemed to disadvantage women who traditionally have poor access to health care services.”³¹

In a single year alone, Tennessee’s fetal assault law “resulted in twenty more fetal deaths and sixty more infant deaths.”³²

During the legislative debate, prior to the passage of Tennessee's fetal assault law, experts testified about the harm the law would cause. The debate caused a rare split among Tennessee Republicans.

Republican state Sen. Mike Bell raised concerns. "I represent a rural district. There's no [drug] treatment facility for these women there, and it would be a substantial [distance to] drive for a woman caught in one of these situations to go to an approved treatment facility. Looking at the map of the state, there are several areas where this is going to be a problem,” he said.³³

At the time, “only two of the state's 177 addiction treatment facilities that provide on-site prenatal care allow older children to stay with their mothers while they are undergoing treatment. And only 19 of these facilities offer any addiction care specifically oriented toward pregnant women. The problem of access is further compounded by Tennessee's current refusal of the Medicaid expansion; according to recent data, the uninsured rate for people aged 19-39 hovers around 25 percent in the state, leaving many women without reliable access to basic medical or prenatal care, much less drug treatment.”³⁴

A district attorney testifying at the hearing that day, responded to Sen. Bell's concerns regarding the lack of access to drug treatment for pregnant women in the state by telling Bell “to simply trust that law enforcement wouldn't prosecute any woman who wanted to get into a drug treatment program but couldn't.”³⁵

Republican Senator Bell was unimpressed.

"Now as much as I would like to believe that, I do know that you can't always trust people to do the right thing -- and the right thing here is not to criminalize or prosecute a woman who wants help,” he said, and expressed further “skepticism that law enforcement should be trusted to handle a health issue like addiction” (emphasis added).³⁶

But while Bell and several other legislators expressed skepticism “[about whether] law enforcement should be trusted to handle a health issue like addiction,” for the sponsor of the Tennessee fetal assault law in the state House, Republican Rep. Terri Lynn Weaver, the punitive law was a “velvet hammer”— a term that was being thrown around during legislative debates on the proposed law “to mean a reliance on prosecutors to drive women into drug courts with the threat of criminal penalties, including jail.”³⁷

Shortly after the law was passed, Weaver said that “she views police as more concerned about ‘the life inside the belly’ than the pregnant women themselves” (emphasis added).³⁸

“And again, these women are the worst of the worst -- these are coke and heroin ladies," she said (emphasis added).³⁹ "These women are not thinking about anything except their next narcotic fix.”⁴⁰

Tennessee's fetal assault law included a “sunset clause.” After two years, lawmakers could either renew the law or allow it to expire. After two years, the negative impact of the law were obvious to everyone, and the state legislature allowed the law to expire.⁴¹

Up next!

At the same time as activists were advancing Fetal Personhood and “fetal rights in legal areas disconnected from abortion,”⁴² anti-abortion violence was booming. This violence also coincided with court-ordered obstetric violence supported by proponents of Fetal Personhood. In the next post, we'll examine this third strategy plank of the Fetal Personhood movement.

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40. McDonough, K. (2014, April 22). “You can’t always trust people to do the right thing”: How a law split pro-life Gopers in Tennessee. Salon. https://www.salon.com/2014/04/21/you_cant_always_trust_people_to_do_the_right_thing_how_a_law_split_pro_life_gopers_in_tennessee/

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