On the twenty-fifth anniversary of Roe v. Wade,(1) it is safe to say that there has been a concerted effort to overturn that decision and to outlaw all abortions.(2) The most widely-recognized efforts to restrict abortion have come from legislative initiatives to restrict or outlaw abortion and from violent attacks against women who seek health care from reproductive health clinics and on the health-care providers who help them.(3) An ongoing and concomitant part of the anti-choice strategy, however, has been to establish fetal rights under the law.(4) If fetuses are recognized as full legal persons, then their right to life must, as a matter of constitutional law, be protected--and all abortions outlawed.(5) As a result, anti-choice activists have sought to reverse Roe by having fetuses recognized as full persons under the law. To that end, they have sponsored amendments to the Constitution and federal legislation that would declare that the "unborn are constitutional persons."(6) They have also engaged in ongoing efforts to insinuate the concept of fetal personhood into any and every statute, ordinance, and proclamation they could penetrate.(7)
Regardless of which approach they have taken, anti-choice activists have had some of their greatest successes with strategies that linked anti-abortion sentiment with another unpopular cause or politically disempowered group. Thus, significant anti-abortion victories occurred when the legislation limited low-income women's and young women's access to abortion.(8) Legislation seeking to ban so-called "partial birth" abortions received the greatest support while it was portrayed as limiting highly unpopular "late-term" abortions of healthy fetuses obtained by women who selfishly delayed having an abortion until the last minute.(9) This prohibitive abortion law is finally being beaten back in the courts, where it has been successfully revealed as a strategy to outlaw all abortions--including those for middle class women who "responsibly" seek early abortions.(10) Anti-choice arguments, however, are once again gaining significant but largely unnoticed legal victories by combining abortion-based arguments with other unpopular issues and groups.(11)
In the name of fetal rights, over 200 pregnant women or new mothers in approximately twenty states have been arrested.(12) Most of the women arrested have been low-income women of color with untreated drug addictions.(13) Thus, the arrests focus on those people and issues that are hardest to defend in the court of public opinion. Wrongly prejudged as irresponsible and uncaring,(14) the public has expressed little support for them.(15) These prosecutions, however, are by no means limited either in theory or in future application to this particularly despised and unsupported group of women. Women who drink alcohol and fail to get bed rest during pregnancy have already been arrested on the same legal theories, making clear that it is pregnancy and not the illegality of the substance that makes women vulnerable to state control and punishment.(16)
For many years, defense attorneys were able to have the charges dismissed or the convictions overturned.(17) But, by using the legal arguments of the anti-choice movement, the popularity of the war on drugs, and by focusing their attacks on low-income women of color, anti-choice activists obtained an unprecedented and ominous victory. On October 27, 1997, in a case called Whitner v. State,(18) the Supreme Court of South Carolina declared that viable fetuses are "persons," and as a result, the state's criminal child endangerment statute applied to a pregnant woman who used an illicit drug or engaged in any other behavior that might endanger the fetus.(19) In so doing, the court took an unprecedented legal leap, apparently recognizing full legal personhood for viable fetuses.(20)
Right-wing legal groups and opportunistic politicians seized upon Whitner and related cases as the long-awaited chance to overturn Roe v. Wade.(21) Indeed, the Whitner opinion has provided grounds for the South Carolina Office of the Attorney General to assert that it has the legal authority to treat at least some abortions as murder and to put the women who have them, as well as the people who provide them, to death.(22)
The prosecutions of pregnant women represent a significant threat to reproductive freedom, yet the response from the pro-choice and progressive communities has been disturbingly muted. Almost thirty years ago, activist Lucinda Cisler argued "the central rationale for making abortion available [is] justice for women."(23) She warned that "[t]he choice is up to us: we must subject every proposal for change and every tactic to the clearest feminist scrutiny, demand only what is good for all women, and not let some of us be bought off at the expense of the rest."(24) By failing to subject the prosecutions of pregnant drug users to careful scrutiny, and to challenge them vigorously, we risk losing both the rights recognized in Roe and the greater goal of reproductive justice and equality for all women.
THE PROSECUTION AND PUNISHMENT OF PREGNANT WOMEN
Since the late 1980s, legislatures have considered numerous bills concerning pregnant women who use drugs or alcohol.(25) Legislative proposals ranged from bills that would increase services and treatment to pregnant women and their children, to ones that would make it a crime for a pregnant woman with a substance abuse problem to give birth.(26) For most of the late 1980s and 1990s, legislatures rejected the most punitive approaches. For example, in 1990, thirty-four states debated bills relating to prenatal exposure to drugs.(27) Fourteen states passed bills designed to help pregnant women through prevention and education.(28) Six states established studies to determine the extent of the problem.(29) Eight states considered, but failed to pass, legislation that would make it a crime to be addicted and to give birth.(30)
Many states, however, began to amend their civil child abuse laws to mandate reporting of pregnant women or newborns who tested positive for drugs. The result put women into the civil child welfare system as suspected child abusers, often resulting in temporary or permanent loss of custody based on nothing more than a single positive drug test.(31) Today, twelve states require that evidence of a woman's drug use during pregnancy be reported to child welfare agencies, and these, along with three other states, now require drug testing of newborns or pregnant women.(32) In some other states women are reported as a matter of policy.(33) In addition, some states, even without legislation, have attempted to expand the scope of their civil child abuse laws to include a woman's conduct during pregnancy. Although a majority of lower state courts to consider the application of civil child neglect statutes to pregnant women who test positive for illegal drugs have upheld findings of neglect based at least in part on a pregnant woman's drug use, the only state supreme courts to rule on the subject have refused to treat women who used drugs while pregnant as presumptively neglectful.(34) As of 1997, one state had also amended its civil commitment statutes to make special provision for drug addicted pregnant women.(35)
Despite the fact that no state passed a law criminalizing pregnancy and drug addiction, an estimated 200 women have been prosecuted around the country on theories of fetal abuse.(36) Police and prosecutors attempted to expand the reach of existing criminal laws to punish pregnant women, relying on child abuse, drug delivery, manslaughter, homicide and assault-with-a-deadly-weapon statutes.(37) Until 1997, no high court which considered the legality of prosecuting a pregnant woman upheld such a prosecution. Courts unanimously rejected the attempt to expand existing criminal statutes, finding that their applications to fetuses and pregnant women were beyond the intent of the laws. In some cases the prosecutions were also found to be in violation of the Constitution's guarantee of due process and of the right to privacy.(38) Some courts also acknowledged the overwhelming opposition of medical and health groups as a consideration in dismissing charges or overturning trial court convictions.(39) But in 1997, the tide began to turn. Once thought of as legal oddities or as a collection of isolated incidents, prosecutions and punitive legislation now represent an increasing trend toward the recognition of fetal rights and women's subordination.
Roe v. Wade and Fetal Personhood
In Roe v. Wade, the United States Supreme Court held that at no stage of development are fetuses persons under the law.(40) As members of the Court have pointed out, not even the dissenters in Roe argued that fetuses are persons under the Fourteenth Amendment.(41) In Planned Parenthood v. Casey,(42) the Supreme Court reaffirmed Roe's essential holding. Thus, as Justice Stevens noted in his concurring opinion in Casey, "as a matter of federal constitutional law, a developing organism that is not yet a `person' does not have what is sometimes described as a `right to life.' This has been and, by the Court's holding today, remains a fundamental premise of our constitutional law governing reproductive autonomy."(43) As many authors have persuasively argued, according constitutional rights to fetuses would not only jeopardize women's lives and health by denying them access to legal abortion, but would also undermine substantially their status as constitutional persons including their ability to participate as full and equal citizens in our society.(44) In Casey, Justice Stevens also articulated this concern in his opinion. Quoting Ronald Dworkin, he observed that
"The suggestion that states are free to declare a fetus a person .... assumes that a state can curtail some persons' constitutional rights by adding new persons to the constitutional...