Analyze A Policy
Identify Policy Mechanisms that Threaten Bodily Autonomy
Fetal Personhood Is Not Compatible with Bodily Autonomy
Fetal personhood is radical and dangerous. This refers to laws that grant rights, privileges, and legal protections to fertilized eggs, embryos, and/or fetuses. In doing so, they give the State a legal interest in a pregnancy and a blank check to enforce it. This includes controlling pregnant people's bodies and threatening their civil and human rights.
Policies and legal mechanisms that grant a fetus the legal status of a person must be rejected. There is no safe compromise or incremental approach here. There is no way to build a just future on a foundation that includes any measure of fetal personhood.
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Look Out For:
Language that confers rights or benefits to a fertilized egg, embryo or fetus (whether directly or indirectly).Because:
These policies set up a conflict between the rights of the pregnant person and those ascribed to her pregnancy.Examples:
“Personhood” laws
Fetal protection laws
Fetal tissue disposition laws
Prenatal torts
Pregnancy Exclusions in Advance Directives
Prenatal Substance Use or Exposure defined as basis for determination of child abuse or neglect
Resources:
Dangers of fetal personhood legislation -
Look out For:
Laws or policies that take options away from a pregnant person as the pregnancy progresses.Because:
The pregnant person’s rights and freedoms are diminished. They are compelled to continue the childbearing process without regard for their interests.Examples:
Abortion bans based on gestational duration or fetal development. This includes bans at potential viability. These may hide in plain sight in well-intended efforts to protect abortion, e.g. The Women’s Health Protection Act.Resources:
Gestational Age Bans: Harmful at Any Stage of Pregnancy
Decision-Making about Pregnancy and Parenting: When “Protection” Leads to Punishment
When it comes to pregnancy and parenting, policymakers often seek to protect those they deem vulnerable. This may include:
Protecting a pregnant person and/or their fetus from outside harm
Protecting a fetus from the actions of the pregnant individual
Protecting individuals from themselves or their own decisions
Protecting children from the actions or inaction of their parents
But when the State is given the role of the “protector,” someone becomes the assailant. Human rights and bodily autonomy are routinely trampled under the guise of "protection." Pregnancy-capable, pregnant and parenting people are acutely at risk.
NOTE: This is a complicated area of policymaking. Often a law or policy can seem to have both positive and negative outcomes, and to serve vulnerable people. But there is no amount of policing and punishment that can eliminate risk or harm. And there are more effective ways to address harm and support people than with the threat of state violence.
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Look Out For:
Seemingly benevolent programs and policies that offer “protection” by punishing pregnant or parenting people and/or separating families.Theoretical victims or assumptions about harm, e.g. policies that automatically confer (or give State actors the discretion to confer) the status of victim to a fetus or child.
Because:
When the State steps in as protector, it assumes a victim and a perpetrator. It uses tools to overrule, punish, and separate. By positioning itself in this way, violations of bodily autonomy are normalized as necessary and good.Examples:
Responding to prenatal substance use with investigations by family policing agencies. This can lead to children being separated from their families. For example, see the Child Abuse Prevention and Treatment Act (CAPTA).
Schemes intended to "protect" sex workers by criminalizing their customers.
Targeted regulation of abortion providers, i.e. facility and licensure requirements. These seem okay but are medically unnecessary. They're meant to burden providers.
Resources:
Understanding reproductive justice from a disability justice perspective50 Years of CAPTA: What You Need to Know About This Harmful Law
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Look out For:
Policies that give government actors or other third parties control over a pregnant person. Decisions are made by third parties about their pregnancy or the parenting relationship.Because:
These mechanisms are paternalistic. They remove agency from the pregnant person. They often target people from marginalized communities for coercion and punishment.Examples:
Offering incentives or otherwise encouraging certain contraceptive products, especially when the program targets people because of disability, race, or income.
Guardianship or conservatorship policies that give someone else control over decision-making, e.g. because of a disability.
Requiring a young person to notify or obtain consent from one or both parents before they can receive abortion care.
Loss of autonomy: how guardianships threaten people’s rights
Rethinking Guardianship to Protect Disabled People’s Reproductive Rights