THE BLOG
01/15/2013 05:52 pm ET Updated Mar 17, 2013

The 'New Jane Crow' and American Women's Civil Rights

Did you know that last week a pregnant woman in Memphis (Tennessee) was arrested and charged with DUI and "child endangerment" even though she wasn't drunk and there was no child in her car. She is pregnant, however. Whose issue is this? In general, people don't like thinking women have "issues" unless they're personal. Individuals, however, are not responsible for the protection of women's rights. "We" are.

Which is why this is the right time to take a moment to say Happy New Year and congratulations to Alabama! On Friday of last week, in what one media report called "the most important affirmation of the personhood of the pre-born child since the 1973 Roe v. Wade decision," the Alabama Supreme Court ruled that the word "child" applies to the pre-born. While we occupied ourselves over the weekend, I'm pretty sure the American Organization of Pre-Modern Pater Familias had a party! The ruling upheld the convictions of Hope Ankrom and Amanda Kimbrough, both of whom were prosecuted for using drugs while they were pregnant.  As I've written about before, there are hundreds of women similarly prosecuted, arrested, charged and imprisoned. And, it bears saying again, despite what we know about sperm, toxicity and fetal harm, we have yet to see men's rights and liberties infringed on in similar fashion in order to "protect" life or men from themselves. When a fetus is a "child" does it get a "guardian" as suggested in Arizona? Tax credits, as was sought by Michigan conservatives? Paul Ryan and his personhood party have kept writing "sanctity of life" legislation that means rapists can stop their victims from seeking abortions. That means that a rapist can lay claim to her body, against her will, a second time. Let that sink in because these are all threads of the same rope.

The Alabama Supreme Court just normalized "personhood" and created a precedent.

There are no laws prohibiting pregnant women from smoking, drinking alcohol, or say, seeking drug addiction treatment. For example, abortion is legal in Alabama. The Alabama legislature passed a law to stop people from taking children into meth labs. The Alabama Supreme Court decided that a "womb" is a regulated "environment." This is a personhood measure, in which every aspect of a pregnancy can be monitored and controlled by the state, in disguise. We are witnessing the establishment of a separate but unequal system of law that applies to women. What Alabama just did was deprive women in that state of their full personhood. That's what precedents like Alabama's do. Women should not lose their civil rights when they conceive.

This is what the "New Jane Crow" means.

"It is a system of law in which pregnant women are treated as an underclass," explains Lynn Paltrow, Founder and Executive Director of the National Advocates for Pregnant Women. "It is a system in which women lose virtually every other right by virtue of being pregnant."

Even though Roe v. Wade saves thousands of women's lives a day, the law isn't simply a matter of "choice" for women.   I'm assuming that most women and men in the United States feel that women are equal in terms of their rights and are "people." So, the suggestion that we aren't and that we don't enjoy the full rights and privileges conferred by the idea of "personhood" might seem odd, a scare tactic. But actions, rulings, bills and laws like this are how women like the one in Memphis are arrested and denied freedom. Personhood ideas being used by conservative legislators, judges, police officers, medical personnel to take away women's rights are religiously based and their injection in to our systems of governance is an infringement of our right to be free from them. This is why even the most religious person in the country should be an outspoken secularist. Regardless of where you fall in your personal choices regarding abortion, all people should understand what is at risk here. And it is far, far beyond women's individual decisions about abortion.

Roe is an interpretation of the constitution that extends fundamental rights to women, rights that were previously denied us. When should an American woman -- whether she's in Alabama or not -- be fearful for her privacy, freedom, health and life?  Three weeks into a pregnancy? Six?

More than 400 examples like those above are included in the most comprehensive post-Roe examination of cases in which pregnancy was a necessary part of the deprivation of civil rights -- in states across the country. The study, Arrests and Forced Interventions on Pregnant Women in the United States, 1995-2005: Implications for Women's Legal Status and Public Health,  was released earlier today by the Journal of Health Politics, Policy and Law. The cases all occurred in an environment where abortion is legal. No state has any law holding women liable for the outcomes of their pregnancies or laws that overtly target women. Instead, existing laws are deliberately being misapplied and misinterpreted to target women. Although the study ends in 2005, there are many cases between then and now. The study concluded:

• The women subjected to deprivations of physical liberty were overwhelmingly economically disadvantaged (71 percent);

• African American women are significantly more likely to be arrested, reported to state authorities by hospital staff, and subjected to felony charges (59 percent women of color; 52 percent African American women;

• Drug war myths and misinformation played a major role in fueling the arrests, detentions, and forced interventions on pregnant women;

• Declining to follow treatment advice was identified as part of the justification for the arrest, detention, or forced medical intervention in nearly one in five cases;

• Drinking alcohol was mentioned as a factor in 41 cases with alcohol being the only factor in addition to pregnancy justifying the arrest in 15 cases;

• Thirty of the cases involved efforts to force women to submit to medical interventions and examinations against their wills.

While deprivations of women's freedom are often justified as a way of protecting "children" from harm, the study found that in a majority of cases, the arrest or other action taken was not dependent on actual harm to the fetus or newborn or, if there was a claim of harm, that there was any proof that the harm was caused by the factor(s) identified -- like cocaine, for example.

You may not agree with someone using an illegal drug like cocaine while pregnant, but you also probably agree that she shouldn't face life imprisonment because the state claims that cocaine caused her to miscarry when multiple doctors and scientists testify that it did not

Perhaps more disturbing however, was that in 112 of the cases health care providers were the people gathering information from pregnant women and new mothers and "turning them in" to the police, prosecutors, and court officials. Jamie Lynn Russell died two weeks ago from an ectopic pregnancy because of a devaluing of women's lives, misinformed "drug war" mentalities, and a propensity to publicly regulate women's behavior. How are women supposed to trust that they can seek medical care when they need it if they cannot trust their doctors and nurses?

The creep of personhood results in laws and actions that take away women's constitutional personhood. As we all know, the way to save lives is to provide women with safe, accessible and affordable health care options that enable them to plan their pregnancies. The way the Supreme Court of Alabama has chosen only punishes women. There is no (gender-neutral) way to extend personhood rights to fertilized eggs without depriving women of the same rights. It should come as no surprise that African American women are disproportionally affected.

Next week is the 40th anniversary of Roe. The start of 2013 didn't magically wipe away the 2012 passage of more than 40 new laws in 19 states that increased restrictions on women's rights. (Not sure about your rights in your state?) A powerful lobby of religious conservatives in government remain focused, organized and intent on policies that do the opposite. When their ballot initiatives fail, as they do, they distort legislation intended for entirely different purposes or use judicial power to enforce their beliefs. They are working state-by-state to enact and reinterpret legislation that will inevitably filter down to every single girl and woman in this country.

Some may balk at the use of the term "Jane Crow." "We use this language [Jane Crow] very carefully and very deliberately," says Jeanne Flavin, Professor of Sociology and Criminal Justice at Fordham University and co-author of the study. "This problem falls at the intersection of reproductive justice, the war on drugs and our system of mass incarceration. It is far more likely today than in 1973 that women will be incarcerated if Roe is overturned."

You start off with the "bad mothers" -- like white, meth users in Alabama who need medical treatment, for example. They're easy. Then you move to poor ones. Like black women in certain parts of South Carolina or Mississippi. Then you move on to the other women, probably also experiencing distress. The suicidal ones in Illinois. Or the "good" ones that make human mistakes, like getting in to a car accident in Tennessee. And none of these examples even touches on the implications of abortion drugs that women administer themselves -- something that is still illegal in many states. This isn't a scare tactic. I know that these cases may seem like an excusable statistical blip. But, given our history, a continuing backlash against women's equality and the mass jailing of Americans, it is fair to explore seriously. Some things are dramatic. For women stopped, investigated, arrested, imprisoned, charged, denied medical care, forced to undergo medical treatment without their consent, these "issues" are dramatic and personal. But, what will it take until they become political priorities in how people vote?

The authors make clear recommendations, such as a federal study of the uses and consequences and efficacy of feticide laws originally designed to protect women but now being used to prosecute them, for next steps clear in their study, the entirety of which you can read here.

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