The XX Factor

Do Chemical-Endangerment Laws Make Pregnant Women Second-Class Citizens?

How much regulation should the government impose on pregnant women?

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When considering the issue of “personhood”—the idea that a fetus (or really any state of gestational development from sperm-meets-egg onward) should be counted as a citizen with all the rights and legal protections entailed therein—I really try to understand the pro-life point of view. I generally like the idea of babies, after all, and I respond with human warmth when I meet a pregnant woman, just as most people do. But there’s always one vexing detail that trips me up—those women are “persons,” too. And though I’m not an ethics expert, I can’t see how granting full rights to a fetus doesn’t detract from the full (and far more demonstrable) citizenship and freedoms of its mother.  

Ada Calhoun has a fascinating piece in this weekend’s New York Times Magazine exploring just this issue, her entryway being the recent establishment of “chemical-endangerment laws” in states like Alabama. These statutes allow mothers to be prosecuted and sentenced to major jail time for child endangerment if their newborns are found to have been exposed to drugs (such as cocaine, methamphetamine, and even marijuana) while in the womb, even if the baby is perfectly healthy when born. Calhoun relates the stories of a number of mothers who have been caught up in this legal situation, and though some of her subjects are less-than-sympathetic, her larger point about the frightening implications of this kind of regulation rings true. Sure, drugs may be unhealthy (though Calhoun cites research that questions how harmful exposure might actually be for the fetus) and, in any case, illegal, but why stop there in legislating the choices pregnant women can make regarding their bodies?

In a particularly revealing passage, Calhoun interviews a pregnancy advocate, Emma Ketteringham, who notes the disturbing similarity of this situation with The Handmaid’s Tale, a novel by Margaret Atwood in which women are little more than childbearing slaves.

“It starts with cocaine, and then it’s cigarettes and alcohol. How much alcohol? And when? It’s only a matter of time until it comes to refusing a bed-rest order because you need to work and take care of your other children and then you have a miscarriage. What if you stay at a job where you’re exposed to toxic chemicals, as at a dry cleaner? What if you keep taking your S.S.R.I.’s during pregnancy? If a woman is told that sex during her pregnancy could be a risk to the fetus, and the woman has sex anyway and miscarries, are you going to prosecute the woman — and the man too?”

The vision of a world in which women are little more than vessels-become-vassals for their children may not be such a dystopian fantasy. As Elisabeth Badinter argues in her controversial new book, The Conflict: How Modern Motherhood Undermines the Status of Women, much of the discourse around “natural” pregnancy and child-rearing since the 1980s has imagined the mother as a servant of her children and severely chided any woman who expresses ambivalence about the loss of primacy that being a mother is supposed to represent. “Beware the [pregnant] woman who takes even a small glass of champagne at a birthday party,” Badinter writes with a twinge of sad sarcasm.

Of course, no one is saying that mothers should deliberately do things to harm children they wish to carry to term. But navigating the ethical bramble of choice, government intervention, health concerns and human rights at issue here is going to require far more nuanced thinking than is on display in these “chemical-endangerment laws.” Without it, we’re going to end up with a society that respects its potential members far more than those citizens capable of bringing them into the world.