When a Fetus Gets Legal Rights, Guess Who Suffers?

At the center of the new documentary film Personhood is Tammy Loetscher, a Wisconsin woman who, after losing her health insurance, experienced debilitating depression from a thyroid condition. Without access to prescription drugs, Tammy turned to self-medicating with meth, which she stopped after learning she was pregnant. After she reached out to her doctor for help, the result was Draconian in ways that, unfortunately, you can imagine. (Spoiler alert: A lawyer was appointed for Tammy’s fetus, and not for Tammy.) 


Let’s start here: reproductive justice is the right to have children or not have them, and to raise the children you have in a safe environment. Reproductive justice, a framework founded by Black women, goes beyond notions of “choice” and “rights” to remind us that without access to reproductive health services, such as prenatal care, abortion and contraception, these services and the laws that make them available may as well not exist. Keep this definition in mind when you’re watching Personhood,  the documentary film about what happens when a fertilized egg is given the same rights as—sometimes even more rights than–a fully formed human being, making the person carrying that egg vulnerable to a barrage of laws which take any opportunity to punish her.   

“While we’re all aware of overt attempts to end access to abortion,” says Personhood‘s director, co-producer, and editor Jo Ardinger, “at the same time, there’s been this persistent under the radar effort to prioritize fetal rights. You could go to your doctor and have one of these laws used against you.” 

“Personhood” amendments, such as Colorado’s Amendment 67 (which had already been rejected by voters twice by the time it arrived on the ballot again in 2014), often couch their actual intent–which is to ban abortion (and birth control, some forms of birth control, IVF, and embryonic stem cell research). They do this by legislating that life begins at the moment of conception–using deceptive language that appears to protect women, making the legislation appear both more palatable to voters. For example, Amendment 67 would have allowed for two murder charges if a pregnant person is murdered,one for herself and one for her unborn child. While on its surface this might sound compassionate, the reality is that this amendment  mandates prosecution of a pregnant person for any danger that befalls the fetus! If she gets into a car accident while pregnant or, as in Tammy’s case, uses drugs while pregnant, she could be jailed for endangering her “pre-born” child. (Tune into Personhood for a peek at some excellent community organizing by Colorado Organization for Latina Opportunity and Reproductive Rights around stopping the passage of the amendment.) 

As you might imagine, Personhood is a film packed with sobering moments that demand the viewer reassess what she believes about pregnancy and autonomy. And in keeping with the notion of reproductive justice, it also forces us to reckon with our ideas about race, and class. The film examines the consequences of Tennessee’s Fetal Assault Law, which allows for a pregnant person to be jailed for using drugs while pregnant, or if the baby is born addicted to or harmed by drugs. Of those arrested under this law, 72% low income women, and 59% women of color

Cherisse Scott is the CEO and founder of SisterReach, a Memphis based non-profit which supports women, LGBTQIA+ people and their families via the reproductive justice framework. In 2016, SisterReach and other reproductive justice advocates successfully lobbied to end the Fetal Assault Law, which was found to keep pregnant and addicted people from seeking prenatal care and drug treatment and even resulted in their seeking abortions. “Folks are medicating poverty,” says Scott in the film. “Folks are medicating not having a job, folks are medicating domestic violence, and if we’re not connecting these things, all we’re going to see is a woman using drugs and doing it on purpose to harm herself and her child.”  Instead of examining the reasons pregnant people might be using drugs in the first place, personhood laws such as the Fetal Assault Law focus on the fetus, instead of the person carrying it, as if she were not a human herself, but simply a “host.” Scott: “This is an amazing opportunity to shift cultural norms around how people are thinking about sick people, about poor people…to finally rehumanize women.” 

Personhood clarifies that the tentacles of the anti-choice movement reach far beyond access to abortion, and for this reason, we all have reason to be afraid. Check out the case of Rinat Dray, an Orthodox Jewish woman who was given a C-section against her wishes at a Staten Island hospital.  Dray’s doctor made the decision to override her refusal for a C-section, which both lower and appellate courts affirmed: The court thus finds that the state interest in the wellbeing of a viable fetus is sufficient to override a mother’s objection to medical treatment, at least where there is a viable full-term fetus and the intervention presents no serious risk to the mother’s well-being.”  

It’s normal these days to be exhausted by the state of things, reproductive and otherwise. At the same time, Personhood is a clarion call for pushing forward. Find out if personhood laws, which are usually made on the local level, exist in your state.If so, what do they say? Connect with organizations such as the National Advocates for Pregnant Women and the ACLU to learn more about actions you can take. 

“As hard as it is to stay engaged, stay engaged,” urges Jo Ardinger. “People think ‘it can’t be me’, but it can reach you. Anyone who can become pregnant is impacted by these laws.” 

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The views and opinions expressed in this article are the author’s own and do not necessarily reflect those of Lilith Magazine.