On Nov. 4, North Dakota voters will consider whether to add a “personhood” amendment to their constitution. If this amendment, Measure 1, passes, North Dakota would become the first state to amend its constitution to define the “inalienable right to life” for humans as beginning at conception. (A similar measure is on the ballot in Colorado.)
Supporters claim the sole purpose is to ensure that North Dakota laws limiting abortion will be upheld. As our peer-reviewed study documenting hundreds of arrests and related detentions and state interventions makes clear, this claim is patently false.
Measure 1 is variously known by supporters as the “Life Begins at Conception,” “Inalienable Right to Life,” or the “Human Life” amendment. Their choice of framing is no accident: it’s hard to vote against life, right? Measure 1 would more accurately communicate what is at stake, however, if it were titled, “A Right to Life . . . Unless you are Pregnant” Amendment or possibly, the “You Can Kill a Pregnant Women in an Attempt to Save a Fetus” Amendment. If this amendment passes — giving fertilized eggs, embryos, and fetuses a right to life that the state must protect — women who become pregnant risk losing their own right to life.
Angela Carder was 27 years old and 25-weeks pregnant when she suffered a recurrence of cancer. When she became critically ill, she (with the support of her doctors, her husband, and her parents) decided that everything should be done to keep her alive for as long as possible. The hospital called an emergency hearing to determine the rights of the fetus. A lawyer appointed for the fetus argued that the fetus had a right to life. Even though it was understood that moving Carder from intensive care against her will, bringing her to a surgical ward, and making her submit to the surgery could kill her, Carder was forced to have the operation.
Neither Angela Carder nor her fetus survived. An appellate court eventually held that these actions were wrong, but not before Ms. Carder lost her right to life.
As Carder case illustrates, the proposed amendment would give those who disagree with a pregnant woman’s medical decisions the authority — if not the obligation — to intervene and to subject pregnant women to emergency court hearings, and the arrests — total deprivation of liberty — necessary to hold them down and carry out involuntary surgery and state ordered treatments. In this regard, Measure 1 might be better known as “The No Rights to Due Process, Liberty, Medical Decision-making, or Privacy for Pregnant People” Amendment.
Measure 1 would justify stripping women of rights from the moment they become pregnant in the name of “protecting” the right to life of fertilized eggs, embryos, and fetuses. Our research documents cases throughout the United States in which claims of rights of the unborn informed the state’s actions. In Iowa, a pregnant woman who fell down a flight of stairs was arrested for attempted feticide. In Utah, a woman gave birth to twins; one was stillborn. She was arrested for murder based on the argument that her decision to delay having cesarean surgery was the reason for the stillbirth. In Wisconsin, Wyoming, New York, and South Carolina, women who drank alcohol while pregnant have been arrested for child abuse.
When challenged, such cases are often dismissed because state laws do not actually authorize the arrest. Yet, these and other cases demonstrate that if Measure 1 passes, pregnant women who experience a miscarriage or stillbirth or otherwise are alleged to harm or even risk harm to the fertilized eggs, embryos, or fetuses they carry would face the threat of prosecution and incarceration.
The prospect of arrest raises its own concerns and additional ideas for more accurate names for North Dakota’s Measure 1, i.e., the “Provide Incentives for Women to Abort Otherwise Wanted Pregnancies” or “Discourage Women from Trusting their Doctors” Amendment.
Here, we can look to North Dakota itself. A pregnant woman was arrested while approximately twelve weeks pregnant. She was arrested and charged with reckless endangerment based on the claim that by inhaling paint fumes she was creating a substantial risk of serious bodily injury or death to a “person,” her unborn child. While she was sitting in jail, her brother was quoted in court records as saying “I believe she is contemplating an abortion in order to have the charge of reckless endangerment dismissed.” She obtained release from jail long enough to obtain an abortion, and indeed the prosecutor dropped the charges citing the fact that there was no longer a need for the prosecution because she had “terminated her pregnancy.”
Coerced abortions — not an end to abortions — are the more likely result of giving the state the power to lock up or tie down pregnant women who disagree with doctor’s advice or fail to overcome addictions or other health problems in the short length of pregnancy.
To oppose North Dakota Amendment, Measure 1 is not to deny the value of unborn life as a matter of religious belief, emotional conviction, or personal experience. Rather, it is to recognize that should this amendment pass, it will affect all pregnant women including those who have no interest in ending their pregnancies. As our research shows, violations of pregnant and parenting women’s rights and dignity would not only be possible under Measure 1, but inevitable. That isn’t good for anyone. Indeed, we hereby rechristen North Dakota ballot measure, “Bad for Pregnant Women, Children, and Families.”
This post has been updated.
Lynn M. Paltrow, J.D., is the Founder and Executive Director of National Advocates for Pregnant Women (NAPW). As Executive Director of NAPW, Ms. Paltrow combines legal advocacy, public education, state and national organizing, research, and policy work to secure the human and civil rights, health and welfare of all women, focusing particularly on those who are pregnant and parenting, and whose race, class, drug use or mental health make them most vulnerable to state control and punishment. She is a frequent guest lecturer and writer for popular press, law reviews, and other scholarly venues. A former Hays Civil Liberties Fellow and Women’s Law and Public Policy Fellow at Georgetown, she has been honored with the Drug Policy Alliance’s Justice Gerald Le Dain Award for Achievement in the Field of Law, and the National Women’s Health Network’s Barbara Seaman Award for Activism in Women’s Health.
Jeanne Flavin is a Professor of Sociology at Fordham University. She wrote the award-winning Our Bodies, Our Crimes: Policing Women’s Reproduction in America (NYU, 2009), is co-editor of Race, Gender, and Punishment: From Colonialism to the War on Terror (Rutgers, 2007), and has authored more than two dozen other scholarly publications. She is the 2013 recipient of the Sociologists for Women in Society’s Feminist Activism Award. Currently, she serves as president of the board of directors for National Advocates for Pregnant Women.
Gualberto Garcia Jones, an attorney for Personhood USA, an anti-abortion group, speaks on Tuesday, March 15, 2011, at a North Dakota Senate Judiciary Committee hearing in the Brynhild Haugland Room of the North Dakota Capitol in Bismarck, N.D. Jones supports legislation that says a fertilized egg, or zygote, is a human being and provides legal protections for it. (AP Photo)