Jonathan P. Baird

Since the U.S. Supreme Court overturned Roe v Wade in the Dobbs decision, the direction of the anti-abortion forces has been more clearly established. Anti-abortion activists seek a national abortion ban and they also plan an all-out fight for fetal personhood.

On September 13, Sen. Lindsay Graham (R.-S.C.) and Rep. Chris Smith (R.-N.J.) introduced a bill to ban abortion nationally after 15 weeks of pregnancy with some very narrow exceptions. Since Dobbs, abortion is now illegal or severely restricted in 16 states, eviscerating the right of abortion access for over 21 million women. In another 9 states, bans are blocked by court order. Graham’s bill would allow states with more restrictive abortion laws to keep their more restrictive laws in place.

It is not an exaggeration to say that for broad swaths of America, especially the South and Plains states, access to abortion, a right previously constitutionally guaranteed for 50 years, is gone.

In Rhode Island, anti-abortion advocates have filed a petition asking the U.S. Supreme Court to rule that zygotes, embryos, and fetuses are “persons”, having due process and equal protection rights under the 14th Amendment. Their goal is to establish fetal personhood, something the Roe court rejected. To move the case forward, the petitioners need four Supreme Court justices to agree to hear it. Given the present composition of the Court, that seems entirely possible.

Both the Graham abortion ban and the Rhode Island case indicate that anti-abortion forces are not satisfied leaving the matter of abortion to the states. They seek a nation-wide ban. The goal is to restrict and then eliminate abortion in the blue states, not just the states that are already hostile to abortion rights. The combination of the ban and then the court case are a one-two punch. The ban is a first step to the ultimate goal – no abortion access at all anywhere in America.

What is most horrifying about these efforts is the shocking disregard for women they reflect. The fetus is conceived of as more important and worthy than the woman. The rights of the woman become secondary to the fetus. The anti-abortion forces are giving an insensate clump of cells, a potential life, superior status to a living, breathing woman.

The sexism embodied in this effort is profound. This is about control and power over women to force them into a subservient subclass where their reproductive autonomy is extinguished. It is turning back the clock on women’s rights to a time before women’s liberation when male supremacy reigned as the norm. In this fundamentally religious vision, the husband is the head of the household and the wife is the subordinate.

I don’t believe the harm currently being visited on pregnant women has been sufficiently appreciated Fetal protection laws have been already criminalizing pregnant women’s behavior. Since protecting the fetus becomes primary, women are seen as a danger to their fetuses. After all, if abortion is murder, women who desire abortions are considered potential murderers.

Writing in the Guardian, Moira Donegan has just described how a 23 year old, six week pregnant Alabama woman, Ashley Banks, was kept in jail for 3 months, without a trial, for allegedly endangering her fetus. Her crime: smoking marijuana two days before she was stopped by a policeman. She was not allowed to post bail or go free. She was imprisoned (imprisoned!) to protect her pregnancy.

The state of Alabama determined that she had to remain in state custody in jail or in a residential drug program. The drug program rejected her because she was only a casual pot user, so she stayed in jail. Banks bled while she was in jail and had no access to medical care. The logic of the state incarcerating someone to protect their fetus in what is typically a dirty and violent place is twisted.

The National Advocates for Pregnant Women have documented 1,700 instances of women being arrested, prosecuted, convicted, detained or forced to undergo medical interventions that would not have occurred but for their status as pregnant people whose rights state actors assumed could be subordinated in the interests of fetal protection.

Women who experience stillbirth, miscarriages, falling down stairs, using drugs, being in a physical fight, or being shot are getting prosecuted because of the alleged harm to the fetus. Invariably, the women getting prosecuted are poor and they are disproportionately people of color.

It should be clear by now that the pro-life movement is inaccurately labelled. They are not pro-life. They are a forced birth movement. They are stealing the freedom of women to protect fetuses. Where are these pro-lifers after children are born? Who is going to care for all the children and what steps are being taken to address their quality of life once born?

You see precious little written about the huge monkey wrench an abortion ban would throw into the economic circumstances of women. Women of child-bearing age would have much less control of their lives.

There is a monumental hypocrisy underlying fetal personhood. The United States suffers from an under-acknowledged epidemic of child abuse and neglect. So many American children never have a chance in this life because of the traumas inflicted upon them by parents, foster parents and care-takers. And it is not simply parental failure. There is a failure of our broader society to care and to take effective action to minimize the abuse and neglect. We fail to measure that harm.

In 2021, over 400,000 children were in foster care. A small percentage, only 4%, were in pre-adoptive households. While there are many great foster parents, it must be pointed out that foster care is often not a safe haven. Many children report abuse in foster care and experience mental health problems at unprecedented rates. Many foster children carry major depression and PTSD diagnoses.

The pro-lifers who want to force births are seeing the world through rose-colored glasses. A futurist might predict the likely result – an utterly over-stretched foster care system inhabited by a flood of unwanted and unloved children.

The Republican Party bears huge responsibility for the end of Roe. Republican candidates are now back-pedaling hoping that voters forget their role in stripping away reproductive rights from the female half of the population. Voters must not forget and voters must make them pay this November. We must take them at their word – they are not done in taking away rights.