October 28, 2011

A common message from anti-abortion activists is that “women deserve better than abortion.” Today, however, one branch of that movement is taking women down a notch with a new strategy that could prioritize the rights of fertilized eggs over the rights of the women carrying them.

A question on the ballot in Mississippi next month will ask voters to decide: “Should the term ‘person’ be defined to include every human being from the moment of fertilization, cloning or the equivalent thereof?” This issue is before voters thanks to the “personhood” movement, which says that conception is the moment that a person, and a person’s legal rights, begin to exist.

Personhood ballot measures were defeated by wide margins in 2008 and 2010 in Colorado. But observers say Mississippi’s measure is likely to pass; personhood efforts are also underway this year in Wisconsin, Ohio, Florida and other states. On paper these measures would grant a zygote the same rights as the woman who carries it; in practice, however, they could mean that the zygote’s rights come first.

Many of the abortion-rights advocates battling these efforts point out that personhood laws would not only make abortion illegal, they could also ban IUDs, emergency contraception and other hormonal forms of birth control.

Focusing on abortion and birth control is a worthy strategy; it’s also an incomplete one. To paint a full picture of what “personhood” would mean for women, the pro-choice movement must discuss the one group of people who would be intimately affected by these laws but who are often ignored: pregnant women who don’t want abortions.

The world that personhood proponents envision is one not only where abortion is illegal and birth control nearly impossible to obtain, but where pregnant women could be denied their legal rights. Because “fetal protection” and “feticide” laws, which are on the books in 37 states, seek to give fetuses protections — as if a zygote or a fertilized egg were completely separate from the person who carries it — some mothers have already been criminalized and had their lives endangered. These stories have mostly been terrifying exceptions to the norm, examples of legislation coinciding with worst-case medical scenarios. But the more a fetus’s rights — or even the rights of a fertilized egg — are seen to exist in tandem with the legal rights of a woman, the more frequent they could become.

In 1987 in Washington, 27-year-old Angela Carder was 26 weeks’ pregnant and gravely ill with cancer. It wasn’t clear that Carder, who was sedated, wanted to deliver via a Cesarean section, which her doctors said was too risky. The hospital obtained a court order, however, saying that she was to have the surgery to save the life of her fetus. Her daughter survived two hours, and Carder died two days later, with the C-section listed as a contributing factor. Carder’s family appealed the decision, and the District’s highest court ultimately ruled that a pregnant woman has the right to make medical decisions for herself and for her fetus. Beyond Washington, however, that right is unevenly protected.

Michelle Lee, 26, was denied an abortion in 1998 by a Louisiana hospital despite being on a waiting list for a heart transplant — her pregnancy could have killed her. She had to travel to Texas by ambulance to have the procedure.

In 1996, when Laura Pemberton in Florida refused a recommended C-section because she did not want surgery, the sheriff and the state’s attorney went to her house while she was in labor and took her to a hospital, where a lawyer had been appointed for her fetus. (Pemberton was not given representation.) According to Pemberton and legal documents, she was subsequently forced to undergo the C-section against her will. Later, when Pemberton sued for civil rights violations, a U.S. District Court in Florida ruled that “whatever the scope of Ms. Pemberton’s personal constitutional rights in this situation, they clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child.”

More recently, in 2009, a Florida court forced Samantha Burton, a mother of two children, to be put on bed rest at a hospital because of premature contractions. Her doctor, whom the Florida circuit court called “the unborn child’s attending physician,” was allowed to do anything necessary to preserve the life and health of her fetus, even against Burton’s will.

Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women, who also led the Carder family’s appeal, believes that the efforts to ban abortion through fetal personhood would affect all pregnant women — women such as Burton and Pemberton — not just those who are seeking abortions. In her view, personhood initiatives would create second-class status for pregnant women in the United States.

“We’ve been defending Roe and defending abortion instead of defending the pregnant women and the families who are affected by efforts to recriminalize abortion,” Paltrow said.

The fight for fetal personhood — which some mainstream anti-abortion groups view warily, thinking it could undermine their efforts — comes on the heels of the House passing the Protect Life Act, which, among other things, would allow hospitals to deny dying women lifesaving abortions. The bill won’t go forward in the Senate, and President Obama has made clear that he would veto it, but it reflects the thinking of the anti-abortion GOP majority.

This isn’t just politics to me; it’s personal. Last year, when I was 28 weeks’ pregnant with my daughter, Layla, I got a diagnosis of preeclampsia — a leading cause of death for pregnant women. Within days I developed a life-threatening complication called HELLP syndrome that put my liver in danger of failing. Layla was born via emergency C-section weighing just two pounds. I endured a complicated surgery and a long physical and emotional recovery, and my fragile daughter had to spend 56 days in the neonatal intensive-care unit undergoing extreme medical interventions before she was able to come home.

I was lucky. If I had gotten ill a month or so earlier, I could have faced the choice of ending my pregnancy to save my life. It’s a nightmare scenario that I try not to think too much about.

I’m incredibly grateful that I did not have to decide whether to end my pregnancy — and that I had access to doctors who respected me, a family that supported me, and New York state laws that stayed out of my personal and medical decisions. Too many women aren’t as fortunate, and this onslaught of anti-choice legislation and personhood initiatives ignores the reality of their lives and the nuances of their health needs. It’s possible that, faced with my nightmare scenario in a “personhood” world, I wouldn’t have even been allowed a choice.

The people who attack reproductive rights are turning a blind eye to the impossible choices families have to make together, instead callously insisting that it’s lawmakers who know what’s best for women, not women themselves.

Personhood advocates say women’s rights would not be curtailed by their efforts. In response to the outcry over the Mississippi ballot measure, which would effectively ban abortion, even in cases of rape, Personhood USA spokeswoman and lawyer Rebecca Kiessling has frequently said, “A baby is not the worst thing that could ever happen to a rape victim — an abortion is.” An information sheet from Yes on 26, the main organization fighting for personhood in Mississippi, aimed at addressing pro-abortion-rights criticisms of the measure, assures voters that the amendment would not ban birth control and would not make miscarriage a crime.

In 2005, a Virginia lawmaker proposed a bill that would require women who had a miscarriage to report it to police within 12 hours or face up to a year in jail. This year, a bill proposed in Georgia would require that all miscarriages be investigated by law enforcement to make sure that they weren’t caused by “human involvement.”

The slippery slope is getting slicker and slicker. Federal guidelines from the Centers for Disease Control and Prevention created in 2006 tell all women of childbearing years to treat themselves as pre-pregnant — taking folic acid, refraining from smoking and maintaining a healthy weight.

How long will it be before pregnant women are arrested for not taking their prenatal vitamins or for not exercising enough — or too much?

This is not the kind of “Handmaid’s Tale” dystopia I want my daughter to grow up in, and I don’t believe it’s what the majority of Americans want, either. According to the latest Gallup polling on abortion, though the percentages of Americans who identify as “pro-choice” and “pro-life” are about the same, only 20 percent want abortion to be illegal under all circumstances.

The abortion-rights movement — from large organizations to bloggers and students — needs to start talking about personhood and other anti-abortion strategies in a way that includes all pregnant women, even those who don’t want abortions. Because it’s all pregnant women who are in danger.

The logo for Personhood USA, a leading organization behind the measures, echoes that idea. It shows what looks like a full-term fetus curled up in a map of the United States, which acts as its womb. The woman is conspicuously absent. Personhood advocates are interested in only one kind of “person.”

outlook@washpost.com

Jessica Valenti is the founder of Feministing.com and the author of “The Purity Myth: How America’s Obsession With Virginity Is Hurting Young Women.”

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