The Virginia Law Review published a rigorous analysis of abortion bans, in which it compares them to the centuries-old common law tradition of marital coverture. It argues that criminalization of abortion erases maternal personhood in the eyes of the law and ushers in a new regime of fetal coverture.
In the traditional of marital coverture, a woman forfeited her individual legal identity in marriage. She could no longer own property, keep earned wages, file lawsuits, enter contracts, or retain rights to her children in the case of divorce. She surrendered effective ownership of her body. Marital rape was a husband’s legal right. Refusing sex to a husband was considered a breach of contract.
As women’s political power increased, these restrictions on the rights of married women began to slowly fade from the legal system in the mid 19th century. And I do mean slowly, as marital rape was not considered a crime by all states until 1993. But while the end of marital coverture and post-Roe protection of reproductive rights provided a brief era of female self-sovereignty, that era is over for many.
Loss of legal rights and due process
In the Dobbs dissent, Supreme Court Justices Sotomayor, Kagan, and Breyer write "From the very moment of fertilization, a woman has no rights to speak of. ” This assessment has proven to be true.
In Alabama, women are jailed for months with no conviction if they are suspected of endangering a fetus. Being locked up in an unaffordable rehab is the condition of release. Etowah County Alabama has jailed at least 150 women for this reason.
Jailed for fetal endangerment when not pregnant
Also in Alabama, a woman who was only suspected of being pregnant was jailed on suspicion of fetal endangerment.
Jailed for fetal endangerment after being shot
Again in Alabama, a pregnant woman was jailed for the death of her fetus after being shot in the stomach.
Currently proposed restrictions on women
With a nod back to the fugitive slave acts, Republicans are brainstorming ways to legally restrict the travel of pregnant women out of anti-choice states.
Mandatory jail time for attempting to access rape exception if a rape accusation is suspected to be false
In Tennessee, there is no exception for cases of rape, incest, or life of the mother. Legislation recently proposed to introduce an exception for rape includes the provision that a woman will serve three years in jail if the accusation is determined to be false.
State legislators in Texas, South Carolina, North Carolina and others have proposed the death penalty for women who have abortions. #cultureoflife
A green light for medical abuse of pregnant women
Medical consequences for denying medical care to pregnant women as the result of their right to life being secondary to that of the fetus are devastating.
In the US, according to the NEJM, abortion is 58 times safer than pregnancy.
As the editors of the New England Journal of Medicine (“NEJM”) summarized it: “The latest available U.S. data from the Centers for Disease Control and Prevention and the National Center for Health Statistics are that maternal mortality due to legal induced abortion is 0.41 per 100,000 procedures, as compared with the overall maternal mortality rate of 23.8 per 100,000 live births.”44 44.The Editors, Lawmakers v. The Scientific Realities of Human Reproduction, 387 New Eng. J. Med. 367, 367 (June 24, 2022), perma.cc/...
Pregnant women are denied timely life saving treatment for septic miscarriage, cancer, and ectopic pregnancy. They are forced to carry non-viable fetuses to term. Due to “conscience” exceptions for pharmacists, Women thought to be of childbearing age may be denied medication due to the possibility that the treatment they need could harm a potential pregnancy.
Regardless of what a fundamentalist theocratic SCOTUS wrote, this is NOT constitutional.
This Virginia Law Review article effectively argues that the law has never held life as an absolute value. The right to exercise deadly force against home intruders in the “Castle Doctrine,” and the right to preemptively kill conferred by the “Stand your ground” laws are well-established. Legal precedents have also repeatedly found a person has no duty to sacrifice one’s bodily integrity to save the life of another.
A strongly worded precedent for protection of bodily autonomy exists in the 1891 Supreme Court’s Union Pac. Ry. Co. v. Botsford case, which rejected a railroad company’s right to examine a woman’s in injuries without her consent:
“No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own body.” [...]
“To compel any one, and especially a woman, to lay bare the body, or to submit it to the touch of a stranger, without lawful authority, is an indignity, an assault, and a trespass.”
This is exactly the kind of exam mandated for women forced to remain pregnant, as they face a series of implicitly non-consensual medically invasive intimate exams as part of standard prenatal care.
Without affirmative consent by the pregnant person, and by strict interpretation of the definition of rape provided by the US Department of Justice, forced pregnancy and birth is a maximally intimate and sustained bodily violation, and a form of government sanctioned sexual violence against women.
The question is what can we do about it.