Another Risk in Overturning Roe
The decision rejects the idea of fetal personhood—which anti-abortion groups have been pushing on state legislatures.
January 22nd marked the forty-ninth anniversary of Roe v. Wade—and, likely, the last year that its protections will remain standing. In December, during oral arguments, the Supreme Court’s six conservative Justices signalled their intention to uphold a Mississippi law that, in banning almost all abortions after fifteen weeks of pregnancy, defies Roe’s protections. Most of those Justices seemed prepared to overturn Roe entirely. Without Roe, which prohibits states from banning abortion before fetal viability—at twenty-eight weeks when the law was decided, and closer to twenty-two weeks now—abortion could become mostly inaccessible and illegal in at least twenty states.
Illustration by João Fazenda
Some of the potential ramifications are obvious. The majority of people who get abortions are already mothers, and seventy-five per cent live near or below the federal poverty line. It is the least advantaged of this disadvantaged group who will be unable to cobble together the time, money, and child care required to travel across state lines to determine their own reproductive futures. Some will be able to self-administer abortions through telemedicine and mail-order pills—a safe and increasingly common method for early pregnancies. But, for those who can’t, the long-term consequences could be severe. The Turnaway Study, a research project that tracked a thousand women seeking abortions in the United States in the course of five years, found that women denied an abortion have an almost four times greater chance of living below the federal poverty line than women who were not denied one, as well as an increased risk of serious health problems; and their children are more likely to grow up in an abusive environment.
But there are other severe, metastasizing consequences that could follow Roe’s repeal. Roe rejects the idea of fetal personhood, which is a pillar of the anti-abortion movement. It also repudiates the argument that the Fourteenth Amendment grants equal protection, and consequently equal legal standing, to fetuses. (That claim was used as early as 1971, when a lawyer filed suit against the state of New York over its liberalized abortion law, and it has been resuscitated by organizations such as the March for Life, whose 2022 theme is “Equality Begins in the Womb.”) The Supreme Court remains a distance away from this extremist position—even Justice Antonin Scalia said that the Constitution applies only to “walking-around persons.” Still, anti-abortion groups have been pushing fetal personhood on state legislatures, which have introduced more than two hundred pieces of legislation supporting it in the past decade. Most of the bills have failed; they are unpopular as well as unconstitutional. But, in 2019, Georgia passed a near-total abortion ban that allows a fetus to be claimed as a dependent on one’s taxes. (The same year, a judge in Alabama allowed a man to sue an abortion clinic on behalf of an aborted embryo’s estate.) The Georgia law is currently before the Eleventh Circuit Court of Appeals, awaiting the Supreme Court’s Mississippi ruling. If such laws can no longer be challenged at the federal level, they will surely begin to proliferate in earnest.
Recent events in Oklahoma provide an example of what might follow. Though the state’s Supreme Court struck down a fetal-personhood amendment to the state constitution in 2012, the idea has been affirmed in other ways. In 2015, state law was amended to require that any fetal death past twelve weeks be reported as a stillbirth. The Humanity of the Unborn Child Act, passed in 2016, requires that the state department of health “clearly and consistently teach that abortion kills a living human being.” Since 2017, according to a report by the Frontier, an Oklahoma journalism nonprofit, at least forty-five women in that state have been charged with child abuse, child neglect, or manslaughter because of drug use during pregnancy. In 2020, according to the Frontier, the district attorney for Kay and Noble Counties charged seven women with felony child neglect for using marijuana during pregnancy, even though some of them had medical-marijuana licenses. The charge does not require the state to demonstrate actual harm.
The same year, the district attorney for Comanche and Cotton Counties charged three women—Brittney Poolaw, Ashley Traister, and Emily Akers—with manslaughter after they miscarried at seventeen weeks, twenty-one weeks, and twenty weeks pregnant, respectively. The fetuses were autopsied, as necessitated by the 2015 change in the law, and each tested positive for methamphetamine. As thirteen physicians and researchers recently affirmed in an amicus brief in support of Akers, studies have shown that meth use is associated with issues connected to low birth weight, but not with miscarriage or stillbirth. Traister pleaded guilty and is awaiting sentencing. Akers’s case was dismissed due to lack of evidence, but Comanche County has appealed. Poolaw was incarcerated for eighteen months before being convicted by a jury that deliberated for less than three hours; she was sentenced, at age nineteen, to the minimum sentence of four years.
These cases are not anomalous—they’re part of an intensifying pattern. In the late eighties and early nineties, at least a hundred and sixty women who used drugs while pregnant were charged with child neglect and distribution of drugs to minors. Between 2006 and 2016, according to ProPublica, some five hundred Alabama women were charged with felony chemical endangerment for using drugs during pregnancy, even in cases in which the drugs were prescribed by doctors. One woman, Katie Darovitz, was arrested when her son was two weeks old and healthy; she had controlled a seizure disorder with marijuana after her doctors advised her that her normal medication could be unsafe for pregnancy. (The case was eventually dismissed.)
Every year, there are about a million miscarriages in the United States. Under the doctrine of fetal personhood, these common, complicated, and profoundly intimate losses could become legally subject to surveillance and criminalization. The blame, as always, would fall on individual behavior, not on the chromosomal or placental abnormalities that often cause miscarriage, or the social factors that have been proven to increase a person’s risk of losing a pregnancy: poor nutrition, limited health-care access, night shifts and long hours, exposure to environmental toxins. Poverty and racism pose an unequivocal threat to fetal life and child well-being. In a post-Roe world, poor and minority women would find themselves not protected but targeted for further suffering. ♦