Many American women fear that the new Supreme Court will overturn Roe v. Wade, stripping their right to choose. But there’s more at stake, according to Naomi Randolph in a 2019 Ms. Magazine blog post: pregnant women could face a higher risk of criminal charges for miscarriages or stillbirths, due to lawmakers in numerous states enacting laws that recognize fetuses as people, separate from the mother. One example that Randolph provides is in Alabama, where voters recently passed a measure that “endows fetus’ with ‘personhood’ rights for the first time, potentially making any action that impacts a fetus a criminal behavior with potential for prosecution.” Collectively, these laws have resulted in hundreds of American women facing prosecution for the outcome of their pregnancies.
In Arkansas, Anne Bynum was convicted of “concealing a birth” when she delivered a stillborn child at her home in 2015, per an Arkansas statute that leaves women in the same situation vulnerable to conviction if they wait even a minute before contacting authorities.
In Mississippi, Rennie Gibbs faced murder, then manslaughter charges at age 16 after delivering a stillborn child. Although experts advised that drugs were not the cause of the baby’s death, the jury concluded she had “willingly and feloniously” killed the child by using drugs.
These cases all vary in contexts, but the commonality is women losing their rights if they are thought to be endangering the fetus. The courts can criminalize women for doing anything they deem irresponsible during pregnancy or postpartum. As Randolph details, this especially hurts women of color and low-income women, due to their lack of access to contraceptives, abortion, and treatment for mental health and addiction. She adds that they are also “most likely to lack the resources necessary to avoid incarceration, or to pay the fines and fees to get out of jail once they’re locked up”.
If Roe v. Wade is overturned, the criminalization of miscarriages can become an even bigger problem. The Trump administration has been combative to women’s reproductive rights from day one. As Naomi Randolph explains, one day after the election they proposed policy changes to the Affordable Care Act that would “allow employers to deny women no-cost birth control based on their religious and ‘moral’ beliefs.” This followed proposals to change Title X, which could limit funding to family planning services like Planned Parenthood. The research shows that if access to birth control is diminished, the rates of unintended pregnancies will rise. Trump’s newly appointed Supreme Court Justice, Brett Kavanaugh, is the fifth vote necessary to strike down Roe v. Wade. If that happens, women could not only face prosecution for seeking out abortions, but also lose basic protections when they are pregnant and parenting.
The New York Times is the only corporate source that has discussed this topic. However, they have only touched the topic in opinion pieces—including, notably, its extensive “A Woman’s Rights” feature from December 2018—rather than as a topic featured in headlines and news stories. This issue has mainly been covered by independent news sources such as Ms. Magazine and Rewire.News.
Source: Naomi Randolph, “What Losing Roe Would Mean for Women of Color,” Ms. Magazine, January 22, 2019, msmagazine.com/blog/2019/01/22/losing-roe-mean-women-color/.
Student Researcher: Abby Ehrler (North Central College)
Faculty Evaluator: Steve Macek (North Central College)