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As Groups Gear Up to Challenge Roe v. Wade, Advocates Say All Pregnant Women's Rights Are at Risk

Legal scholars have long argued that Roe protects more than just abortion access.
Activists hold signs in front of the the United States Supreme Court during the 2018 March for Life on January 19th, 2018, in Washington, D.C.

Pro-life activists try to block the signs of pro-choice activists in front of the the United States Supreme Court during the 2018 March for Life on January 19th, 2018, in Washington, D.C.

In 2005, a decade before "opioid epidemic" headlines would take over the news, 20-year-old Rachael Lowe was pregnant and addicted to OxyContin and decided, at last, to confess to her husband, 21-year-old Michael Lowe. Together, they decided they would seek help at the Waukesha Memorial Hospital. There was another hospital closer to where they lived in eastern Wisconsin, but they thought Waukesha would give them better care, Michael told the Journal Times, a local paper. It's a mistake he said he wouldn't repeat, if he had the chance.

To his and Rachael's surprise, instead of offering counseling, the Waukesha staff contacted county officials, who had Rachael involuntarily committed to the psychiatric ward at St. Luke's Hospital, more than an hour away from their home. She received no prenatal care there, Michael told the Journal Times in an interview more than a week after her commitment. In court, Michael said he wanted his wife released—he'd made arrangements for her to undergo outpatient addiction treatment and have an obstetrical exam. "Why detain her and hold her locked up in a psychiatric ward for wanting to better herself? I don't understand that," he said.

In fact, Rachael was just one of 26 American women who were arrested, detained, or otherwise underwent forced interventions in 2005 in the name of protecting their fetuses, according to a study published in the Journal of Health Politics, Policy, and Law in 2013. More than 400 such cases occurred between 1973 and 2005, the study finds, with a disproportionate effect on black and poor American women. If the 1973 Supreme Court decision Roe v. Wade is threatened—as some believe it is, by current politics surrounding the Supreme Court—those cases could proliferate, advocates warn.

Although Roe v. Wade deals with the right of American women to obtain an abortion, supporters say its legal logic also protects those who wish to keep their pregnancies. "Roe also explicitly rejected the argument that fertilized eggs, embryos, and fetuses are constitutional persons at any stage of development, and, in doing that, the court affirmed that women, at all stages of pregnancy, are constitutional persons whose lives and health are paramount," Lynn Paltrow, founder of the National Advocates for Pregnant Women and one of the 2013 study's co-authors, said during a briefing hosted by the organization last month.

"Women are already arrested for being pregnant and engaging in some conduct allegedly risky to a fetus and for pregnancy losses," Dorothy Roberts, a family law professor at the University of Pennsylvania, said during the briefing. "So certainly if Roe is overturned, those [arrests] would only increase because it would give prosecutors more leeway, more legal leeway, to make pregnancy a crime."

Roe v. Wade is seen by both pro-life and pro-choice activists to be at a potential turning point because of the Supreme Court seat left open when Justice Anthony Kennedy retired. If Congress appoints a justice who is willing to reverse the decision, the court may have enough votes to do so.

The National Advocates for Pregnant Women argues cases on behalf of pregnant people who face penalties for choices that allegedly threaten their fetuses. Often these cases have to do with drug use, as Rachael Lowe's did. NAPW's clients also include women who refuse doctor-recommended care, such as C-sections. The NAPW has been able to win many of these cases in part because of the portion of Roe that says the law has never recognized unborn fetuses as people, Paltrow said.

Lawyers wishing to overturn Roe disagree with Paltrow's interpretation of the decision. "Reversing Roe v. Wade would simply reverse the right to an abortion. Reversing Roe v. Wade is extremely unlikely to deal with the provision that they seem to be talking about, and that is whether or not the unborn is a person under the 14th Amendment," says James Bopp, general counsel for the National Right to Life Committee. "There's nobody on the court that has the appetite for that." The National Right to Life Committee does support an effort to amend the Constitution to define personhood as beginning at the moment of conception, but Bopp doesn't see the Supreme Court as the path to that outcome.

Indeed, no Supreme Court justice has ever supported the notion that fetuses are people, even those who wish to overturn Roe, says Dawn Johnsen, a constitutional law professor at Indiana University–Bloomington, who has worked on reproductive rights cases in the past, including alongside Paltrow decades ago, but is not involved with the NAPW. "It would be crazy because of the impact on women from the moment they're pregnant, from before they even know they're pregnant, if they have a legal person [inside them]," Johnsen says. "It's just not our system at all."

In a subsequent interview, Paltrow clarified that it isn't just overturning Roe that threatens the cases NAPW represents. Current and future anti-abortion laws may do so as well. "The more restrictions that are upheld on abortion, the more those restrictions will be generalized, will be used as precedent for control of all pregnant women," she says. "It cannot, logically, stay limited to just those women who have a concrete intention to end their pregnancy." One worry is that women who suffer miscarriages or stillbirths may be prosecuted as if they had had illegal abortions. It doesn't matter if they didn't intend to harm their fetuses, Paltrow argues: Laws such as those that define reckless homicide or negligent homicide don't require active intent either.

Scholars of reproductive rights laws have long made similar arguments about the importance of Roe and other abortion access laws. But with the current administration's pro-life stance, it feels more urgent, Johnsen thinks, even if the "personhood" holding of Roe remains secure. "There is more than a theoretical risk the government could impose greater restrictions and regulations and controls on women who want to be pregnant," she says.

The law that allowed the state to ship Rachael Lowe to St. Luke's is known as Wisconsin's "cocaine mom" law. Though it's not an anti-abortion law, advocates say the legal logic used is similar to that which allows states to restrict abortion to some extent: that the state's interest in protecting fetuses as potential life at some point outweighs the pregnant woman's right to make health choices for herself. During Rachael's case, some Wisconsin doctors spoke out against the cocaine mom law, noting that punishments for drug-using pregnant women deter people from seeking help. Medical groups, including the American Medical Association and the American College of Obstetricians and Gynecologists, agree.

A Wisconsin court eventually decided that Rachael should be released from St. Luke's. By then, she had been detained for nearly a month and was fired from her job. Michael said if they could do everything over, the couple would seek help privately, from a primary care doctor.

The cocaine mom law remains on the books today. The National Advocates for Pregnant Women had tried to challenge it, but in June, judges dismissed the case because the plaintiff had moved out of state.