Medical Journal Screed Decries All Fetal Personhood Laws

Fetal personhood is a controversial issue that deserves respectful debate. But the New England Journal of Medicine just published a screed by two Ph.D.s associating its advocates with past slave-holding racists and — by strong implication — devaluing unborn human life as having zero intrinsic value.

First, the article claims that pregnancy has been “criminalized.” From, “Fetal Personhood and Reproductive Criminalization” (citations omitted):

Fetal personhood ideology is the underlying force behind abortion bans and restrictions, the prosecution of pregnant women because of conduct deemed potentially harmful to the fetus, and fetal homicide laws that allow a fetus to be treated as the victim of a crime. As a result of this ideology being embedded in state laws and judicial decisions, states have subjected women to investigation, arrest, prosecution, incarceration, civil confinement, and other deprivations of liberty because of their pregnancy. Most pregnancy-criminalization cases are related to prenatal substance use, despite the medical consensus that substance use disorder is a medical condition that requires health care and support, rather than punishment.

No, not “because of their pregnancy,” but because of illegal acts committed during a pregnancy that harm or endanger the unborn.

Drug addiction may have been redefined as a medical condition, but it seems to me that does not excuse substance abusers’ endangerment of unborn babies any more than it would their harming or neglecting their children after they are born. Other fetal personhood cases have generally involved accidents or assaults by third parties that kill viable fetuses, punished in some jurisdictions as a distinct legal wrong in addition to whatever harm is done to the mother.

The column then descends into demagoguery:

Although elements of the modern fetal personhood legal movement took shape in the 1960s, the roots of the idea of fetal personhood stretch back to the era of chattel slavery in the United States, when Black women’s bodies were treated as property and their pregnancies were subject to economic and sociopolitical control. As Dorothy Roberts explains in Killing the Black Body, the concept of the fetus as separate from the pregnant woman — and requiring “protection” from harm — is illustrated by the practice of slaveholders forcing women to lie on the ground, with a hole dug out to supposedly shield the fetus, while the woman was whipped. This gruesome image reflects the traumatizing origins and effects of fetal personhood ideology, which purports to protect the fetus while punishing and disregarding the humanity of the pregnant woman — particularly women who are poor, Black, or otherwise marginalized.

All cruelties involving slavery were abhorrent. But the authors’ intended implications are defamatory to contemporary fetal personhood advocates, suggesting they follow in the barbaric tradition of slavery. I mean, pro-lifers want more black babies born and protected from harm, not fewer. How in the world can that be racist?

Moreover, embryology tells us that the unborn child is a human organism — distinct from but dependent upon his or her mother. They are not one and the same. Slavers’ past abuses do not change elementary science.

The authors then fear-monger about the impact of pro-life laws and fetal personhood beliefs:

Its effects go far beyond the people who are directly criminalized and create an environment of uncertainty and trepidation among patients and health care professionals — one that can reduce access to reproductive health care, increase mistrust in the health care system, and ultimately worsen health and exacerbate health inequities. With growing uncertainty about whether a particular action is considered criminal, many people may avoid seeking prenatal care, delay miscarriage treatment, withhold critical health information from their doctors, or abstain from taking necessary medications during pregnancy. Delays or reductions in perinatal health care can harm both pregnant patients and their infants.

But those concerns have been exacerbated by misleading pro-choice advocates’ claims, for example, false assertions that laws prohibiting abortion prevent treatment for an ectopic pregnancy. Indeed, from what I have seen, pro-lifers work overtime to inform people that miscarriages are not deemed — nor should they be — abortions under state pro-life laws.

At least to some degree, fetal personhood laws recognize nascent human beings as part of the moral community. Without them, the unborn would have zero moral value. For example, Vermont’s abortion law states in part:

A fertilized egg, embryo, or fetus shall not have independent rights under Vermont law.

That’s akin to saying that unborn lives have no rights that born people are bound to respect — meaning we can do anything to them that we want for any purpose.

Some people may call that freedom. But to me, such uncaring coldness toward the not yet born makes for a less loving and compassionate society.