Not every pregnancy ends in a live birth. Some estimates show that nearly half of all pregnancies end in miscarriages, 1 in 160 end in stillbirths or fetal deaths, and 18% end in abortion. When these outcomes happen, sometimes family members and the state look for someone to blame. No one should be punished for experiencing a pregnancy loss or exercising their legal right to an abortion. But when a fetus, and even an embryo, is determined to be a legal person, that can happen. In Tennessee, it already did.
In 2014, Tennessee was the first state in the country to pass a law criminalizing pregnant people for using illegal narcotic drugs while pregnant (narcotic drugs are those used to treat pain and/or used as an anesthesia i.e. oxycodone, hydrocodone, codeine, morphine, oxycontin, heroin and fentanyl). It was a misguided and harmful attempt to address the opioid epidemic by criminalizing people rather than expanding their access to treatment. The law sunset (i.e. had a finite end date and was not renewed) in 2016, but in its two-year life span, it inspired a wave of advocacy from legal, medical, and public health experts, drug policy reform advocates, people who work with individuals affected by substance use disorder, families affected by the opioid crisis, and reproductive health, rights, and justice advocates. Even though the law is no longer on the books, and protections for pregnant people exist in the criminal code, the law, and its impact, still haunt Tennessee and loom large in policy debates around abortion, the child welfare system, policing, and substance use.
The legal logic of these laws conceptualize harm to a fetus as it would to a person. The problem with this logic is that science does not back it up. The laws rely on racist, classist, ableist, and misogynist stereotypes, and erode the personhood and bodily autonomy of pregnant people and people who may not even yet know they are pregnant. Furthermore, there is near unanimous opposition for criminalizing pregnant people for decisions made during their pregnancies, whether that includes substance use, abortion, or attempting suicide. And yet, we have seen people face criminal penalties for all of these outcomes. Attacking pregnant people who use substances has its roots in the racist war on drugs, which sparked a national outcry about “crack babies'' in the 1980s. These racist and classist narratives repeated themselves in the 2016 Tennessee law, when people targeted by this law were disproportionately poor and/or pregnant people of color, particularly Black people.
Laws attempting to create fetal personhood through punishing pregnancy outcomes also often rely on white supremacist notions about who is fit to parent children. We’ve seen these elements seep into other policy proposals including requiring counseling on long acting reversible contraceptives for people with uteruses utilizing substance use treatment programs, laws and courts specifically designed to monitor and surveil parents who use substances and remove children from homes. The Tennessee General Assembly continues to take up this issue while withholding over $700 million in TANF funds for families that need them.
Senator Mike Bell and Representative Jeremy Faison have introduced a bill that seeks to change the definition of a person to include a fetus at any age of gestation in a specific section of the code governing wrongful death lawsuits. This change may not seem consequential, but is part of a larger strategy we’re seeing play out in lawsuits in Alabama, and in laws in Oklahoma, modifying civil statutes to include fetus’ as persons. Ultimately, these laws appear targeted at stopping abortions and restricting reproductive freedom.
Pregnancy can be a unique time in people’s lives, but what doesn’t and shouldn’t change is pregnant people’s civil rights and right to bodily integrity. People should be able to make decisions about themselves and their lives without fear of the criminal-legal or family regulation systems. People should be able to parent their children in safe, healthy, and resourced communities. And pregnant people are people deserving of bodily autonomy, healthcare, and safety like everyone else.
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