Melissa Trent, Guest Blogger (’15, University of California, Berkeley School of Law)
November 20th was National Absurdity Day, a day to recall some of the absurd things in history, our country and our lives. Unfortunately, there are still absurd practices and laws restricting people’s reproductive freedom in the United States. So, in the spirit of National Absurdity Day, let’s think about the absurd practice of punishing pregnant people who are struggling with addiction based on a broader practice of placing more importance on fetal “rights” than on the person who is pregnant.
Across the country, individuals are subject to criminal punishments –including jail time- under the idea that consuming drugs while pregnant is a form of child abuse. In fact, many of these prosecutions are under so called “fetal harm” laws, which originally were written to increase penalties against someone who harms a pregnant person. These laws often don’t include exceptions for the person who is pregnant and legitimatizes the idea that the fetus is a separate and distinct person that has “rights” against the pregnant individual. What’s more absurd is that at least 38 states have these “fetal harm” laws on the books that can then be used against the pregnant person instead of offering them more protection.
National Advocates for Pregnant Women have found at least 413 cases of pregnant women being incarcerated or forced into treatment between 1973 and 2005, and since then, NAPW has counted at least 300 more cases and report that this number is a “severe undercount.” These practices are based on a criminalization of pregnancy where people who become pregnant are have fewer rights and are more likely to face government intrusion than someone who is not pregnant. They are no longer their own free person and can be punished under laws that not only harm them, but can be harmful to their families and pregnancies. This is absurd.
These practices ignore the information we have about substance abuse and pregnancy and are based on an exaggeration of the harm caused to fetuses by substance abuse. In the case of opioid abuse, the American College of Obstetricians and Gynecologists has found that the abrupt discontinuation of use can be more dangerous to the fetus because it can cause “preterm labor, fetal distress, or fetal demise. “ Additionally, criminalizing pregnant people makes them less likely to seek help or medical support because they know they might be subject to mandatory drug testing and criminal penalties for trying to access healthcare and substance abuse support.
Rather than discouraging pregnant people from seeking prenatal healthcare, hospitals should be a safe place for individuals to come for support in their pregnancy and for their substance abuse problems, as there are treatments and medications than can help pregnant people through dangerous withdrawals and help them get clean. So, as a nod to National Absurdity Day, let’s take a moment to think about how ridiculous it is to treat pregnant people as less deserving of privacy or freedom than non-pregnant people and the continued absurd trend of focusing on fetal rights while ignoring pregnant people’s rights.