The Pregnancy Penalty

Abstract

If a woman is fourteen times more likely to die during pregnancy and childbirth than terminating a pregnancy through a legal abortion, why do some lawmakers resist support for contraception and seek to criminalize abortions? Indeed, intensified punishment and surveillance of pregnant women now serves as a litmus test in political discourse, and thus invites more than a metaphor about state sanctioned violence targeted at women of reproductive age. From forced solitary confinement to purportedly protect fetuses, refusals to administer life-saving medical care when the pregnant woman’s life is in danger, threats of arrest for refusing C-sections, to institutionalization for refusing bedrest, states and private parties show a chilling contempt toward the equality, dignity, and autonomy of pregnant women. Much of this has been tolerated by predominately male legislatures at both state and federal levels. And as news outlets in the United States fail to track and report the breadth of these concerns, the result has been to institutionalize problematic norms in the reproductive sphere that legitimizes misogyny and stereotyping in the treatment of women generally, and pregnant women particularly. These aggressive moves occur in all spheres of law: from law enforcement to courts, and quite robustly in the legislative sphere.

As the Article highlights, in recent years, lawmakers and those with political aspirations threaten to “punish” pregnant women who seek abortions when in office. In some states it is now a crime to “endanger” an embryo or fetus. Legislators at state and federal levels even urge that victims of rape and incest should be forced to carry their pregnancies to term, thereby adding additional punishment to the indignity of sexual assault. This Article demonstrates how a plethora of state actions serve to sanction and punish pregnant women. It challenges the resounding justifications for this treatment of women and exposes the fallacy that such punitive state actions “advance” women’s best interest while promoting informed consent.

The Article argues that poor women are symbolically and medically trapped civilly and criminally where extended wait periods, targeted regulations of abortion providers (TRAP laws), and other indignities subject them to ruthless burdens on well-established constitutional rights. This Article explains that these issues take on a new urgency in the wake of robust law making to undermine women’s health care rights.