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Protestors on both sides of the abortion divide swarmed the grounds of the Supreme Court as justices prepared to weigh in on the Whole Woman’s Health v. Hellerstedt Texas abortion case in 2016.

Voices / Column

Women vs. fetus

Laws that take aim at abortion bring up the larger, deeply troubling issue of social control, which usually comes at the expense of women

Elayne Clift has written about women, politics and social justice issues from the earliest days of this newspaper. For more of her work, visit

Saxtons River

Not long ago, a woman in late pregnancy suffering severe depression tried to commit suicide. She survived, but her baby died. She was charged with murder.

A pregnant woman who lost her unborn child in a car accident in New York state was charged with manslaughter.

So was a woman in Indiana who gave birth to a stillborn baby.

Even in cases where a fetus hasn’t died, pregnant women have been charged with crimes in various states — for miscarrying, falling down the stairs, failing a drug test, or taking legal drugs during pregnancy, often prescribed by doctors.

These examples, reported in a recent New York Times series exploring “legislative intrusions into the womb,” reveal a paternalism that is not new — but one that is alarming and growing in the Trump era.

Such enforcement is also reminiscent of other frightening autocratic and dictatorial eras. Hitler, for example, created Lebensborn, a program for German women to produce Aryan children. Under the Romanian dictator Nicolae Ceausescu, assassinated in 1989, women were subjected to monthly pelvic exams in their workplaces while high school girls were routinely digitally raped by male doctors to ensure that all pregnancies were carried to term.

In Margaret Atwood’s novel The Handmaid’s Tale, which has received new attention in the face of Trumpian resistance to reproductive freedom, forced insemination of those selected to be Mothers is assisted by designated Wives.

* * *

These vile acts of social control — still relatively rare but growing — are already occurring in the United States.

Here’s just one example: Politicians in Ohio recently considered a bill that could have allowed abortions to be punishable with life sentences or the death penalty. The proposed law would have extended the definition of a person in Ohio’s criminal code to include the “unborn human.”

That meant that a fetus, from conception to birth, would be considered a person, leaving people who perform abortions or women who have them vulnerable to severe criminal penalties.

At least 38 states have fetal homicide laws, most of which relate to fetuses killed by violent acts against pregnant women. So-called pro-life advocates use state laws with names like the Fetal Protection Act, the Preborn Victims of Violence Act and the Unborn Victims of Violence Act to argue that fetuses are persons, or “a child in uterus,” and need to be protected in all circumstances.

The American Civil Liberties Union argues that “a pregnant woman and her fetus should never be regarded as separate, independent, and even adversarial, entities. Yet that is precisely what some anti-choice organizations, legal theorists, legislators, prosecutors, doctors, and courts have attempted to do in the past decade.”

Legislation designed to protect fetuses can take different forms, the ACLU points out. All of them endanger reproductive rights.

States may amend existing homicide statutes to include fetuses as victims, they can pass statutes defining a fetus as a person, or they might establish a new crime category called “feticide,” or fetal homicide.

They can also permit civil suits against anyone who causes the death of a fetus or enact new statutes to penalize injury to a pregnant woman which causes fetal death or harm.

Such laws are aimed primarily at practitioners, which flies in the face of the constitutional right to choose, established by Roe v. Wade, which, according to the ACLU calls for abortion to be exempt from punishment when performed by “health care workers with the consent of the woman or in medical emergencies and self-abortions.”

Clearly, fetal protection legislation fosters the policing of pregnancy, just as it did in Romania. Practitioners will more likely become overzealous, thereby complicating routine health-care decisions.

In Florida, for example, a woman was told by her doctor that he would send law enforcement to her home if she didn’t get to the hospital immediately for a C-section. A New Jersey mother lost custody of her newborn after refusing a surgical delivery.

* * *

All of these examples raise the larger, deeply troubling issue of social control, which usually comes at the expense of women.

Writing in the January/February issue of The Atlantic, Peter Beinart, a contributing editor for the magazine, sounds this alarm: “[A]uthoritarian nationalism is rising in a diverse set of countries [for various reasons, but] right-wing autocrats taking power across the world share one big thing, which often goes unrecognized in the U.S.: They all want to subordinate women.

The question is why, and Beinart — citing the work of Valerie M. Hudson, a professor of political science at Texas A&M University — says that “it’s vital to remember that for most of human history, leaders and their male subjects forged a social contract: ‘Men agreed to be ruled by other men in return for all men ruling over women.’ This political hierarchy appeared natural — as natural as adults ruling children — because it mirrored the hierarchy of the home.

“Thus, for millennia, men, and many women, have associated male dominance with political legitimacy. Women’s empowerment ruptures this order.”

In other words, keeping women barefoot and pregnant is essential to patriarchy.

Autonomous women — liberated from childbearing, empowered with reproductive choice, and unleashed into the marketplace, the academy, and government — threaten male power. That reality has played out in various forms throughout history.

Seeing it happen in the 21st century is unacceptable.

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Originally published in The Commons issue #496 (Wednesday, February 6, 2019). This story appeared on page D1.

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