Imprisonment of the Pregnant Body

Director Jo Ardinger and Producer Rosalie Miller’s film embodies a perennial battle with ever-changing furnishings. The Personhood Movement aims to police and criminalize pregnant people across the United States. So-called Personhood Laws² endeavor to extend the 14th Amendment's ‘personhood’ standing to embryos, fetuses, or fertilized eggs; by equating a pregnant person’s use of controlled substances with child abuse, they enable prosecution for miscarriages, stillbirths, drug or alcohol use (even prior to knowledge of pregnancy). The film documents the consequence: a spate of women deemed “hosts” prosecuted, often without due process, and jailed, often without prenatal care, to “protect the unborn child.” Ardinger formulated her feature directorial debut in 2011 in response to a plethora of propositions, specifically a failed ballot initiative in Mississippi, intended to dismantle the 1973 Roe v. Wade Supreme Court decision. The documentary serves as a stark reminder that after almost 50 years, the war on people’s bodies and reproductive health endures, embroiled and pressing as ever.

The film chronicles the progress of the Personhood Movement from Minnesota, the first state to pass a “fetal homicide law” in 1986, to Alabama’s 2016 chemical endangerment law. Beginning with Maryland congressman Lawrence J. Hogan’s Human Life Amendment, introduced one week after Justice Blackmun’s 1973 majority opinion, stipulating that establishing “fetal personhood” would nullify Roe’s case, over 330 iterations have been put forward.³

More specifically, Personhood winds through subject Tammy Loertscher’s experience in 2014 with Wisconsin’s 1997 Unborn Child Protection Act, the “Cocaine Mom” law.⁴ The filmmakers masterfully intersperse her story with a concurrent 2014 attempt to implement a personhood amendment in Colorado, and grassroots organizations that struck down Tennessee’s novel 2014 Fetal Assault Law. Personhood scrutinizes the disproportionate impact on lower-income women and people of color through a historical lens and as an extension of mass incarceration,⁵ the prison-industrial complex,⁶ and the war on drugs.⁷Ardinger’s storytelling splices these interweaving narratives with a cascade of news clippings, legal documentation, footage of politicians, and interviews with advocates, lawyers, professors, experts, and organizers.

Throughout the film, Ardinger highlights some of the more poignant statistics on-screen to drive home just what is at stake: 38 states treat fertilized eggs, embryos, and fetuses as potential victims of a crime.⁸ The text hovers over a map of the US, red increasingly imbuing states to indicate where such measures have been put into place until 2019. “It isn’t just about abortion, it isn’t just about reproductive rights,” contends Lynn Paltrow, a frequent on-screen presence in Personhood, at the the film’s outset. “It’s about whether or not upon becoming pregnant, women lose their personhood.”

Defeating Personhood bills, the film underscores, is not without consequence. “We spend a ridiculous amount of money fighting these measures,” says President & CEO of Planned Parenthood of the Rocky Mountains (PPRM), Vicki Cowart to the camera. “Imagine if we were spending $3.5 million on birth control for everybody, that would be a really different scenario for this state.” Their very proposal belies underlying problems. Miller urges, “it’s also about restructuring a system that is not working for us;” changing the cultural pathos of how we view and devalue women.

One need not look further than the US’s maternal mortality rate—the highest among similarly wealthy countries (2.5 times higher for Black mothers),⁹ and the only “developed” country to steadily rise over the last 30 years¹⁰—and female incarceration rates, to substantiate her point. The US has the highest rate of female incarceration in the world.¹¹

A montage of a succession of men in power throughout American history seeking to strip women’s reproductive rights bleed one into the next: Ronald Reagan in 1981 promising a “human life” amendment, George W. Bush in 2001 extending the protection of federal law to “unborn children,” then-presidential candidate Donald Trump in 2016 affirming disciplinary action for abortion: “There has to be some sort of punishment. [“For the woman.”] Yeah, there has to be some form.”¹²

The documentary endeavors to broaden the conversation beyond abortion and represent the breadth of people affected by these measures. The ramifications of which compound multifold for women of color. Female incarceration increased more than 750% (between 1980 and 2017), disproportionately targeting women of color.¹³

Enforcement of Personhood laws mirrors this trend. 72% of targets for arrest, detention and forced intervention are low income women. 59% are women of color.¹⁴ “What’s particularly troubling about this is that we’re talking about using a prisoner jail as a detention center to try to ensure a healthy pregnancy, not because we’re trying to punish a pregnant woman for breaking a law. It’s because we’re believing that this will make a pregnancy go more safely, and that’s what is so wrong,” says Sara Ainsworth, NAPW’s Director of Legal Advocacy, during the film.

“We really see ‘personhood’ and feticide laws as a tax on women of color,” Cristina Aguilar of Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR), explains to viewers. Together with PPRM, COLOR orchestrated voting down Personhood USA’s proposed 2014 Colorado Amendment. “We already know low-income women and women of color are disproportionately represented in the criminal justice system.”

Essential to Ardinger’s mission was including a multitude of diverse perspectives. “We’re white filmmakers,” Ardinger says in a phone interview. “We’re making a documentary that affects low-income women for sure,” but of them, Personhood laws disproportionately impact women of color. Those voices lend firsthand experience and knowledge to “show the different ways that advocates are fighting this on the ground,” Ardinger posits. “We need to move towards that reproductive justice model and look to the advocates like Cherisse and groups like COLOR who have already been doing this for decades. We have to look to them, and learn.”

The feature’s archival imagery—like the debunked “crack baby” tropes of the War on Drugs¹⁵—demonstrate how dangerous media narratives fuel these laws and obfuscate systemic issues. “Folks are medicating poverty, folks are medicating not having a job, folks are medicating domestic violence,” says Cherisse Scott, founder of SisterReach,¹⁶ a reproductive justice¹⁷ non-profit centering people of color, on-screen. “And if we’re not connecting these things, then all we’re going to see is a woman who’s using drugs and doing it on purpose to harm herself and her child.” Only 19 of Tennessee's 177 drug treatment facilities provide care to pregnant patients. Two provide prenatal care.¹⁸ Thus, Tennessee’s 2014 Fetal Assault Law, Scott explains, “put this kind of wedge between doctors and mothers that turns their doctor into their warden, into their probation officer, into the police, so they didn't want to go to the doctor anymore.” A reproductive rights coalition including SisterReach overturned Tennessee's punitive law in 2016.

Through many viewpoints, Personhood warns of the perils of a federal Personhood amendment. Towards the documentary’s end, bioethicist Arthur Caplan cautions of a slippery slope to eugenics (which, Scott elucidates, already occurs¹⁹). Paltrow asserts, “There is no way to add fertilized eggs, embryos and fetuses to constitution without subtracting pregnant women. And never before in the history of the United States has there been a movement to remove a group of people from the community of constitutional persons. And that’s what we’re talking about.” The film closes with Ardinger off-camera asking Tammy a final question: “Do you feel like you were treated like a person?”

Her reply: “I wasn’t treated like a person at all.”

* * *

Coronavirus

In the midst of the novel coronavirus pandemic, anti-choice lawmakers attempted,²¹ and succeeded,²² to prevent clinics that provide abortion services from funding to combat the virus by including languge of the Hyde Amendment²³ in relief packages. The filmmakers point out that conservative lawmakers also tried to deem abortions in Oklahoma, Iowa, Texas, Ohio, Alabama,²⁴ and Mississippi²⁵ “non-essential surgeries” with punishments from fines to imprisonment, amidst people being ordered not to leave their homes, let alone their states. “The number one driving factor for abortion is economic,” Ardinger says of states seeking to employ such emergency decree at a time “when families are already financially strapped,” potentially facing loss of healthcare, unemployment, and a recession. On top of “all the things that could go wrong during childbirth,” Miller adds, being pregnant when hospitals are ground zero—with some New York hospitals refusing to permit partners (although the state has since²⁶ ordered hospitals to allow one support person²⁷)—adds another complication for pregnant people in 2020. While the filmmakers work towards distribution during the pandemic, Personhood will screen at Cleveland International Film Festival (geo-located in Ohio) and Mountainfilm festival in Telluride (geo-located in Colorado).

1. Personhood: A Feature Documentary Film, accessed April 17, 2020, http://personhoodmovie.com.
2. Nina Martin, “This Alabama Judge Has Figured Out How to Dismantle Roe v. Wade,” ProPublica, October 10, 2014, https://www.propublica.org/article/this-alabama-judge-has-figured-out-how-to-dismantle-roe-v-wade.
3. Nina Martin, “The Personhood Movement” from “This Alabama Judge Has Figured Out How to Dismantle Roe v. Wade,” ProPublica, October 10, 2014, https://www.propublica.org/article/the-personhood-movement-timeline.
4. Nataley Neuman, “Wisconsin Act 292’s Dark History,” Reproaction, August 20, 2019, https://reproaction.org/wisconsin-act-292s-dark-history/.
5. American Civil Liberties Union, “Mass Incarceration,” ACLU, https://www.aclu.org/issues/smart-justice/mass-incarceration.
6. Angela Davis, “Masked Racism: Reflections on the Prison Industrial Complex,” ColorLines, September 10, 1998, https://www.colorlines.com/articles/masked-racism-reflections-prison-industrial-complex.
7. Lopez, German, “The War on Drugs, Explained,” Vox, May 8, 2016 https://www.vox.com/2016/5/8/18089368/war-on-drugs-marijuana-cocaine-heroin-meth.
8. National Conference of State Legislatures, “State Laws on Fetal Homicide and Penalty Enhancement for Crimes Against Pregnant Women,” NCSL, May 1, 2018, https://www.ncsl.org/research/health/fetal-homicide-state-laws.aspx.
9. Gaby Galvin, “The U.S. Has a Maternal Mortality Rate Again. Here’s Why That Matters,” U.S. News & World Report, Jan 30, 2020, https://www.usnews.com/news/healthiest-communities/articles/2020-01-30/why-the-new-us-maternal-mortality-rate-is-important.
10. Suzanne Deblanco, et al., “The Rising U.S. Maternal Mortality Rate Demands Action from Employers,” Harvard Business Review, https://hbr.org/2019/06/the-rising-u-s-maternal-mortality-rate-demands-action-from-employers.
11. World Prison Brief, “Highest to Lowest – Prison Population Total,” PrisonStudies, https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All.
12. Tom Kertscher, “In Context: Transcript of Donald Trump on Punishing Women for Abortion,” Politifact, March 30, 2016, https://www.politifact.com/article/2016/mar/30/context-transcript-donald-trump-punishing-women-ab/.
13. The Sentencing Project, “Incarcerated Women and Girls,” June 6, 2019, The Sentencing Project, https://www.sentencingproject.org/publications/incarcerated-women-and-girls/.
14. Lynn M. Paltrow, “Disclosure Statement,” National Perinatal Association & National Advocates for Pregnant Women, 2018, http://www.nationalperinatal.org/resources/Documents/2018%20Conference/Thursday/NPA2018Conference-DeliveredandEditedtoNPA.pdf.
15. Retro Report, “Crack Babies: A Tale From the Drugs Wars,” The New York Times, May 20, 2013, https://www.nytimes.com/video/booming/100000002226828/crack-babies-a-tale-from-the-drug-wars.html.
16. SisterReach, https://www.sisterreach.org.
17. Sister Song, “Reproductive Justice,” https://www.sistersong.net/reproductive-justice.
18. Amnesty International, “USA: Tennessee ‘Fetal Assault’ Law in a Threat to Women’s Health and Human Rights,” Amnesty International, March 11, 2016 https://www.amnesty.org/download/Documents/AMR5136232016ENGLISH.pdf.
19. David Perry, “Our Long, Troubling History of Sterilizing the Incarcerated” July 26, 2017, The Marshall Project, https://www.themarshallproject.org/2017/07/26/our-long-troubling-history-of-sterilizing-the-incarcerated.
20. Ibid. National Conference of State Legislatures.
21. Marie Solis, “Republicans Tried to Sneak Abortion Restrictions Into the Coronavirus Bill,” VICE, March 13, 2020, https://www.vice.com/en_us/article/4ag55g/republicans-coronavirus-emergency-legislation-abortion-restrictions.
22. Denis Carter, “The COVID-19 Stimulus Bill Leaves Abortion Providers Out in the Cold (Updated),” Rewire.News, March 27, 2020 https://rewire.news/article/2020/03/27/covid-19-stimulus-bill-includes-broad-discretion-to-deny-loans-to-reproductive-health-groups/.
23. Planned Parenthood, “Hyde Amendment,” Planned Parenthood, https://www.plannedparenthoodaction.org/issues/abortion/hyde-amendment.
24. Tara Haelle, “Abortion Access Shifting in Some States Amid COVID-19, MedScape, March 31, 2020, https://www.medscape.com/viewarticle/927832.
25. Serra Sippel and Akia Radhakrishnan, “Abortion is a Human Right. A Pandemic Doesn’t Change That,” CNN, March 28, 2020, https://www.cnn.com/2020/03/28/opinions/covid-19-abortion-access-human-right-sippel-radhakrishnan/index.html.
26. Katie Van Syckle, and Christina Charon, “Women Will Not Be Forced to Be Alone When They Are Giving Birth,” The New York Times, March 28, 2020, https://www.nytimes.com/2020/03/28/parenting/nyc-coronavirus-hospitals-visitors-labor.html.
27. Susan Jaffe and Virginia Breen, “State says Hospitals Must Allow One Support Person in for Childbirth,” The City, March 28, 2020 https://thecity.nyc/2020/03/state-says-hospitals-must-allow-one-support-person-at-births.html.

Further Reading

1. Aleks Kajstura, “Women’s Mass Incarceration: The Whole Pie,”, Prison Policy Initiative, October 29, 2019, https://www.prisonpolicy.org/reports/pie2019women.html.
2. Jennifer E, “Children of the Opioid Epidemic,” May 9, 2018, New York Times, May 9, 2018, https://www.nytimes.com/2018/05/09/magazine/children-of-the-opioid-epidemic.html..