Opinion | Slandering the Unborn


Fetal assault Depraved heart murder Delivery of a controlled substance Chemical endangerment of a fetus Manslaughter Second-degree murder Feticide Child abuse Reckless injury to a child Concealing a birth Concealing a death Abuse of a corpse Neglect of a minor Attempted procurement of a miscarriage Reckless homicide
Photographs by Damon Winter

DEC. 28, 2018

You might be surprised to learn that in the United States a woman coping with the heartbreak of losing her pregnancy might also find herself facing jail time. Say she got in a car accident in New York or gave birth to a stillborn in Indiana: In such cases, women have been charged with manslaughter.

In fact, a fetus need not die for the state to charge a pregnant woman with a crime. Women who fell down the stairs, who ate a poppy seed bagel and failed a drug test or who took legal drugs during pregnancy — drugs prescribed by their doctors — all have been accused of endangering their children.

Such cases are rare. There have been several hundred of them since the Supreme Court issued its decision ratifying abortion rights in Roe v. Wade, in 1973. But they illuminate a deep shift in American society, away from a centuries-long tradition in Western law and toward the embrace of a relatively new concept: that a fetus in the womb has the same rights as a fully formed person.

This idea has now worked its way into federal and state regulations and the thinking of police officers and prosecutors. As it has done so, it’s begun not only to extend rights to clusters of cells that have not yet developed into viable human beings, but also to erode the existing rights of a particular class of people — women. Women who are pregnant have found themselves stripped of the right to consent to surgery, the right to receive treatment for a medical condition and even something as basic as the freedom to hold a baby in the moments after birth.

How the idea of fetal rights gained currency is a story of social reaction — to the Roe decision and, more broadly, to a perceived new permissiveness in the 1970s — combined with a determined, sophisticated campaign by the anti-abortion movement to affirm the notion of fetal personhood in law and to degrade Roe’s protections.

Political ambition has also played a powerful role. Out of concern for individual freedom, the Republican Party once treated abortion as a private matter. When Ronald Reagan was governor of California, he signed one of the most liberal abortion laws in the land, in 1967. As late as 1972, a Gallup poll found that 68 percent of Republicans thought that the decision to have an abortion should be made solely by a woman and her doctor.

But after Roe, a handful of Republican strategists recognized in abortion an explosively emotional issue that could motivate evangelical voters and divide Democrats. In 1980, as Mr. Reagan ran for president, he raised the cause high, and he framed it in terms of the rights of the unborn. “With regard to the freedom of the individual for choice with regard to abortion, there’s one individual who’s not being considered at all. That’s the one who is being aborted,” he said in a debate that year. “And I’ve noticed that everybody that is for abortion has already been born.”

Out of concern for individual freedom, the Republican Party once treated abortion as a private matter.

The crack epidemic of the late 1980s and early 1990s also had the effect of popularizing the idea of fetal rights. Many Americans became seized with the fear — fanned by racism and, as it turned out, false — that crack-addicted black mothers in inner cities were giving birth to a generation of damaged and possibly vicious children. This false fear supplied considerable force to the idea that the interests of a fetus could come in conflict with those of the woman carrying it — and that the woman may have forfeited any claim on society’s protection.

The creation of the legal scaffolding for the idea that the fetus is a person has been the steady work of the anti-abortion movement, at the national level and in every state. Today, at least 38 states and the federal government have so-called fetal homicide laws, which treat the fetus as a potential crime victim separate and apart from the woman who carries it.

The movement has pressed for dozens of other measures to at least implicitly affirm the idea that a fetus is a person, such as laws to issue birth certificates for stillborn fetuses or deny pregnant women the freedom to make end-of-life decisions for themselves. Some of these laws are also intended to create a basis for challenging and eventually overturning Roe.

In the hands of zealous prosecutors, cautious doctors and litigious attorneys, these laws are creating a system of social control that polices pregnancy, as the editorials in this series show. Because of the newly fortified conservative majority on the Supreme Court, such laws are likely to multiply — and the control to become more pervasive — whether or not Roe is overturned.

Legislative intrusion into the womb has a long history in the United States, and nowhere is this paternalism more forceful than when illegal drugs are part of the equation. If the country’s war on drugs functions as a system of social control, that control is doubly exercised when a fetus is involved.

Today, with some notable exceptions, the nation is reacting to the opioid epidemic by humanizing people with addictions — depicting them not as hopeless junkies, but as people battling substance use disorders — while describing the crisis as a public health emergency. That depth of sympathy for a group of people who are overwhelmingly white was nowhere to be seen during the 1980s and 90s, when a cheap, smokable form of cocaine known as crack was ravaging black communities across the country.

News organizations shoulder much of the blame for the moral panic that cast mothers with crack addictions as irretrievably depraved and the worst enemies of their children. The New York Times, The Washington Post, Time, Newsweek and others further demonized black women “addicts” by wrongly reporting that they were giving birth to a generation of neurologically damaged children who were less than fully human and who would bankrupt the schools and social service agencies once they came of age.

By The Editorial Board Photographs by Damon Winter

You might be surprised to learn that in the United States a woman coping with the heartbreak of losing her pregnancy might also find herself facing jail time. Say she got in a car accident in New York or gave birth to a stillborn in Indiana: In such cases, women have been charged with manslaughter.

In fact, a fetus need not die for the state to charge a pregnant woman with a crime. Women who fell down the stairs, who ate a poppy seed bagel and failed a drug test or who took legal drugs during pregnancy — drugs prescribed by their doctors — all have been accused of endangering their children.

Such cases are rare. There have been several hundred of them since the Supreme Court issued its decision ratifying abortion rights in Roe v. Wade, in 1973. But they illuminate a deep shift in American society, away from a centuries-long tradition in Western law and toward the embrace of a relatively new concept: that a fetus in the womb has the same rights as a fully formed person.

This idea has now worked its way into federal and state regulations and the thinking of police officers and prosecutors. As it has done so, it’s begun not only to extend rights to clusters of cells that have not yet developed into viable human beings, but also to erode the existing rights of a particular class of people — women. Women who are pregnant have found themselves stripped of the right to consent to surgery, the right to receive treatment for a medical condition and even something as basic as the freedom to hold a baby in the moments after birth.

How the idea of fetal rights gained currency is a story of social reaction — to the Roe decision and, more broadly, to a perceived new permissiveness in the 1970s — combined with a determined, sophisticated campaign by the anti-abortion movement to affirm the notion of fetal personhood in law and to degrade Roe’s protections.

Political ambition has also played a powerful role. Out of concern for individual freedom, the Republican Party once treated abortion as a private matter. When Ronald Reagan was governor of California, he signed one of the most liberal abortion laws in the land, in 1967. As late as 1972, a Gallup poll found that 68 percent of Republicans thought that the decision to have an abortion should be made solely by a woman and her doctor.

But after Roe, a handful of Republican strategists recognized in abortion an explosively emotional issue that could motivate evangelical voters and divide Democrats. In 1980, as Mr. Reagan ran for president, he raised the cause high, and he framed it in terms of the rights of the unborn. “With regard to the freedom of the individual for choice with regard to abortion, there’s one individual who’s not being considered at all. That’s the one who is being aborted,” he said in a debate that year. “And I’ve noticed that everybody that is for abortion has already been born.”

Out of concern for individual freedom, the Republican Party once treated abortion as a private matter.

The crack epidemic of the late 1980s and early 1990s also had the effect of popularizing the idea of fetal rights. Many Americans became seized with the fear — fanned by racism and, as it turned out, false — that crack-addicted black mothers in inner cities were giving birth to a generation of damaged and possibly vicious children. This false fear supplied considerable force to the idea that the interests of a fetus could come in conflict with those of the woman carrying it — and that the woman may have forfeited any claim on society’s protection.

The creation of the legal scaffolding for the idea that the fetus is a person has been the steady work of the anti-abortion movement, at the national level and in every state. Today, at least 38 states and the federal government have so-called fetal homicide laws, which treat the fetus as a potential crime victim separate and apart from the woman who carries it.

The movement has pressed for dozens of other measures to at least implicitly affirm the idea that a fetus is a person, such as laws to issue birth certificates for stillborn fetuses or deny pregnant women the freedom to make end-of-life decisions for themselves. Some of these laws are also intended to create a basis for challenging and eventually overturning Roe.

In the hands of zealous prosecutors, cautious doctors and litigious attorneys, these laws are creating a system of social control that polices pregnancy, as the editorials in this series show. Because of the newly fortified conservative majority on the Supreme Court, such laws are likely to multiply — and the control to become more pervasive — whether or not Roe is overturned.

The statutes granting personhood rights to fetuses are never more pernicious than when they criminalize acts of God.

Stomach pains woke Keysheonna Reed late one night last December. She climbed into the bathtub, hoping she would not wake any of the other nine people living in her small home in eastern Arkansas. Within minutes, she’d delivered twins, a boy and a girl. Both babies were born dead, the medical examiner would later determine. Their mother — 24 and already the mother of three — panicked. She found an old purple suitcase, put the bodies inside and got into her car. She “began to pray and just drove,” she said, according to a court affidavit, eventually leaving the suitcase on the side of County Road 602.

This personal tragedy was soon heightened by a legal one: When the suitcase was found several weeks later, the Cross County Sheriff’s Office, understandably, began an investigation and asked the public for information.

Katherin Shuffield was five months pregnant when she was shot in 2008. She survived, but she lost the twins she was carrying. The gunman, Brian Kendrick, was charged with murdering them.

Bei Bei Shuai was eight months pregnant and depressed when she tried to kill herself in 2010. She was rushed to the hospital and survived, but her baby died a few days later. Ms. Shuai was charged with murder.

Both cases are tragedies. But are Ms. Shuai and the man who shot Ms. Shuffield really both murderers?

It would be easy to assume that unjust abortion restrictions that endanger women’s lives are a problem only in deep red states. But laws that restrict the rights of women exist in even the bluest bastions of the country.

They don’t get much attention, and many people might not know they’re even on the books. Until the moment when the law steps between patient and doctor.

Erika Christensen and her husband were at her obstetrician’s office on Manhattan’s Upper East Side, a few blocks from Central Park, when they were given news that broke their hearts.

Kasey Dischman was 7 years old, and had already endured years of sexual abuse at the hands of a relative, when she learned that alcohol could blot out her nightmares. By the time she was 10, she’d discovered marijuana, which curbed her waking anxiety and depression.

By 13, she was taking the bus into downtown Butler, Pa., to search for whatever drugs she could find. It was on one such hunt that someone introduced her to heroin. And it was on a quest to find more heroin, a few months later, that she met Andy Lucas, a drug dealer with long flowing hair and a flirtatious grin.

A year later, the couple was living with Mr. Lucas’s mother, and Ms. Dischman was in thrall to the twin forces that would carve her path to adulthood: Mr. Lucas and heroin.

Rarely will a woman who lost an unborn child be charged with murder. Yet the mere existence of criminal statutes aimed at forcing women to make decisions to protect their fetuses — even at the expense of their own health — has injected fear into maternity wards and operating rooms, complicating even routine health care decisions.

Sometimes doctors or nurses are overzealous. In Florida, a doctor told Lisa Epsteen that he was sending law enforcement to her home if she didn’t report immediately to the hospital for a C-section. In New Jersey, a woman known in court documents as V.M. lost custody of her newborn for years after refusing to have her baby delivered surgically. The baby was born vaginally — and in full health — but put in foster care.

Other times, in many states, doctors and nurses — the very people who are meant to help pregnant women — are required to report suspected drug use to the police. The threat of prison and losing custody of their children drives pregnant women who suffer from addiction or mental illness away from much-needed prenatal care and treatment.

I was treated like a murderer for suffering a personal tragedy in Arkansas. By Leah Varjacques, Taige Jensen and Brian Dawson

In the video above, Anne Bynum describes the harrowing experience of being criminalized and incarcerated after having a stillbirth.

Ms. Bynum is one of several hundred women in the United States who have been prosecuted for their pregnancy outcomes. Numerous states across the country have passed laws recognizing fetuses — even fertilized eggs — as persons separate from the mother, and more are considering doing so. These laws have had the perverse consequence of not just pitting the health of a fetus against that of a pregnant woman but of also, in some cases, overriding the woman’s rights entirely.

Women who have miscarriages or stillbirths have been detained and jailed for a variety of crimes, including murder. Ms. Bynum was convicted of “concealing a birth,” a crime that dates back to the 17th century.

Her case is one of only four that have ever been reported in Arkansas; the three others occurred between 1884 and 1944. Fifteen other states have equivalent laws, with charges ranging from misdemeanor to felony. These laws were created to make it easier to prosecute parents who kill their babies — in such cases, it’s necessary to prove that the infant was born alive. But in Arkansas, the statute’s language is vague: It does not include a time frame or define “concealment,” so women who have miscarriages or stillbirths at home could be charged for waiting even a minute before calling authorities.

Now that the Supreme Court has a conservative majority that appears inclined to overhaul Roe v. Wade, it is likely only a matter of time before women’s reproductive rights are ratcheted back. But what if the court goes further? What if, as many opponents of abortion hope, the court rules that the fetus has “personhood” rights under the Constitution?

In that event, all abortions would be illegal — even in states that overwhelmingly support a woman’s right to choose. Wealthy women might travel to other countries for reproductive health care, but poorer women would be left behind.

And the changes to American life would go deeper than that. A society that embraces a legal concept of fetal personhood would necessarily compromise existing ideals of individual freedom. Americans — even many who oppose abortion — have not considered the startling implications of this idea, even as it has steadily gained strength in the law and in social norms. If a fetus is granted equal rights, women who become pregnant may find their most personal decisions coming under state control.