In New South Wales, politicians have been debating a bill known as “Zoe's Law”, originally introduced by Christian Democratic Party’s Fred Nile.
Zoe’s Law aim to give legal rights to foetuses older than 20 weeks or weighing more than 400 grams. The law opens up the possibility of a pregnant woman being charged for damaging her own foetus.
NSW Bar association argues that existing legal provisions already have adequate penalties (maximum 25 years) for dealing with harm done by others to pregnant women. The Bar Association says Zoe’s Law would only endanger women and restrict women’s human rights. Evidence from the US experience supports such a view.
In January 1973, the federal US Supreme Court decision known as “Row vs Wade” ruled abortion that nationally, abortion was legal up to 22 to 24 weeks, based of a doctor’s determination of viability of a baby outside the womb.
However, the Supreme Court explicitly rejected the claim that foetuses, even after attaining viability, are separate legal persons with rights independent of the pregnant women who carry, nurture and sustain them.
The attacks on abortion access took place almost immediately. The prohibition of federal funding of abortion in 1976 disproportionally affected poorer women.
Another big blow took place in 1992 when the Supreme Court ruled states have a right to regulate abortion as long as they do not write laws that impose an “undue burden” on women.
Since then, there has been an explosion in state-imposed regulation, especially with the 2010 electoral success at state, federal and local levels of Republican conservatives aligned with the Tea Party faction. In 2011, 92 bills restricting abortion became law in 24 states.
In 2012, a further 43 restrictions were passed in 14 states and last year, 22 states enacted 70 abortion restricting laws.
Some of these measures are under legal challenge federally, most are already in practice. Planning is underway to be able to effectively challenge Roe vs Wade in the near future. If that is successful, some states would criminalise all abortions regardless of the cause of the pregnancy or the woman’s wishes.
One major feature of conservative attacks is to impose the viewpoint that life (“personhood”) starts at the point of conception, not birth. This is has far broader, and dangerous, implications for women than just abortion rights.
There are laws in more than 38 US states that explicitly establish a separate and unequal status for pregnant women. In different ways prioritise the foetus over the pregnant woman.
Through specific and incorrect interpretations of child welfare and drug laws, substance abuse has become legally regarded as child abuse or neglect where the “çhild” in question is a foetus with legal rights (personhood) recognised from as early as six weeks development.
In the case of assault on pregnant women, many states recognise foetal homicide (foeticide) from the moment of conception as an independent victim.
These measures have led to pregnant women being jailed, placed in psychiatric institutions or other forms of detention for a range of substance abuses. Women have also been punished for suffered stillbirths and miscarriages.
A study of the legal documents of some 413 cases over 40 years in 44 US states found in all but eight cases, the women were not attempting abortion nor were accused or charged with abortion. They were trying to carry the foetus to term.
The vast majority of women were variously charged with forms of homicide, foeticide or manslaughter (12%); risk to the life of the unborn child or “reckless endangerment”, or some form of child abuse and neglect including failure to obtain prenatal care or refusal of treatment orders or exposure to harmful fumes (51%); and drug possession or use (22%) where the drugs in question included a range of illicit drugs as well as alcohol and cigarettes.
In one example, a woman in Florida in active labour at home was taken into custody by the sheriff who strapped her thighs together and forcibly took her to hospital. Doctors had taken out a court order to force her to undergo caesarean surgery.
They believed her wish for a vaginal birth, having previously had a child by caesarean section, posed a risk to the life of her unborn child. As she was being prepared for surgery, an emergency legal hearing was held bedside to determine the state’s interest on behalf of the foetus, as argued by lawyers.
The woman and her husband were not given the opportunity to be represented legally. The judge compelled her to undergo surgery she she had rejected as unnecessary.
The woman later sued for violation of her civil rights. But the federal district court ruled that the state’s interest in preserving the life of the foetus outweighed her rights as set out in three sections of the US constitution.
She went on to give birth vaginally to three more children without harm.
Of the 413 cases studied, 354 women were charged with one crime (86%). Of these some 295 (74%) were charged with a felony which in the US legal system means an offence punishable by more than one year’s jail.
Yet in fact, the laws used in these cases are not legally valid at the state level. At present there are no laws criminalising a woman going to term if she has a drug problem. There is no law making women liable for the outcomes of their pregnancies.
There is no amendment of criminal laws to make child abuse laws applicable to pregnant women at any stage of development of the foetus they carry and sustain.
No state or federal law exists that exempts pregnant women from the full protection of personhood rights (legally defined by live birth) that are affirmed in federal and state constitutions ― as yet. So women are being punished in relation to their own pregnancies.
The women’s sentences and deprivation of liberty is based on the application of existing laws never intended for use in the situation of pregnancy. These are then processed and justified invalidly by the judicial system.
There are many cases higher courts of appeal dismissing or overturning decisions of lower courts in these matters. Yet this does not stop the affected women spending long periods in jail given the length of time such appeals take.
In many cases, appeals do not proceed since most women involved are from lower socio-economic levels, are poor and in need without resources.
Where the racial origins of the affected are recorded in court proceedings, In the racial origin of the detainees (where this is recorded in the court proceedings) 152 women are of Anglo background (41%), while 215 are women of colour (59%).
But there is major opposition by public health groups, medical groups and experts that such penal actions undermine rather than advance maternal, foetal and child health by deterred women from seeking care and speaking openly with doctors and medical professionals.
The US experience demonstrates that those who push such laws in the name of protecting the rights of the foetus are more clearly aware of the dangers to women's rights that ensue. is the reverse is true.
The legal theory is based on the proponents of personhood measures to establishing that the foetus should be treated completely separate, legally, from the pregnant woman.
They argue that the legal authority for their actions came directly and indirectly from foeticide statutes that treat the unborn as legally separate and from state abortion laws that include statements similar to personhood measures.
They also often cite the Roe vs Wade ruling, which is claimed to support personhood based on the viability of the foetus at a particular stage of development. This ignores the explicit rebuttal of such a position in the federal court decision referred to earlier.
But the intentional behind such “personhood” laws was made clear in a situation that occurred in Texas earlier this year about a woman’s right to die or cease treatment.
Marlise Munoz was 14 weeks pregnant she suffered a pulmonary embolism and was not able to be resuscitated. Her brain had ceased to function, which meant that she was legally dead.
However, the hospital was able to artificially maintain certain mechanical bodily processes through ventilation.
Despite her family’s request to cease, the hospital authorities artificially maintained these functions on the grounds Munoz was pregnant. The ultra-conservative dominated hospital board used a Texas law that states “a person may not withdraw or withhold life-sustaining treatment” from a pregnant patient.
That the patient was dead made no difference. Her family was refused access to take her body from the hospital emergency ward so it could be buried according to her wishes.
This imposed stand-off went on until she was 22 weeks pregnant. Finally, under legal pressure from the family and a national political furore, the hospital released her body ― more than two months after she died.
It appeared the hospital intended to keep her body functioning until Munoz was technically 24 weeks pregnant ― the legal viability limit outlined in Roe vs Wade decision. Then, they planned to perform caesarean surgery on her dead body.
That the foetus had received no oxygen from the time of Munoz's death, and Munoz's body had been subjected to large quantities of drugs and electric shocks in the bids to revive her, made no difference.
This a straight-up issue of foetal rights from the ultraconservative viewpoint that life (personhood) begins at conception. There was no practical purpose to the hospital's action beyond pure ideology.
Women are being forced back into a situation where the most basic gains of the first and second waves of feminism ― equal citizenship and the right to make decisions about bodily futures of health, life and death ― are overturned.