For years, anti-choice lawmakers have sought to lay down legal precedents for fetuses and embryos to be considered fully fledged persons in need of legal protections as part of a wider framework to criminalize abortion as murder. But this language and this broader approach to so-called public health have ramifications beyond abortion: If a fetus is a person, then consuming alcohol or narcotics while pregnant and putting the fetus at risk for fetal alcohol spectrum disorder, or FASD, and other substance-related birth defects is a form of child endangerment.
Dr. Sarah Roberts is a professor and legal epidemiologist at the Advancing New Standards in Reproductive Health initiative at the University of California at San Francisco, and one of the only researchers in the United States working on the intersections of health care practices and policies around abortion and the criminalization of behaviors while pregnant. “Singling out drinking while pregnant isn’t effective,” she explains, noting that none of the punitive or so-called “supportive” FASD prevention policies that she’s analyzed actually prevented FASD.
In her research, Dr. Roberts has found that the states that criminalize pregnant people consuming alcohol largely overlap with states restricting abortion.
As Roberts explains, many of the policies that target pregnant people who drink also target those who consume other substances. These policies have deep roots, often dating back to the “war on drugs,” and, more specifically, the racist “crack baby” scare in the 1980s and 1990s. Media outlets of that era often presented sensationalist narratives that babies born to mothers using crack cocaine would be born with brain damage and overwhelm welfare systems, leading to a widespread targeting and policing of Black pregnant people, in particular. These policies were often ignored or brushed aside by mainstream pro-choice, often white-led organizing groups at the time, without the foresight of recognizing that this very same positioning of fetuses as people would be used to dismantle abortion access in the years to come. “There is a racist history to this, an ableist history to this, and a classist history to this, that these issues weren’t considered ‘mainstream’ abortion rights or reproductive rights issues,” explains Dana Sussman, the vice president of Pregnancy Justice.
Pregnancy Justice is a New York–based organization that represents people charged with pregnancy-related crimes, the vast majority of which involve allegations of substance use. For Sussman, the intersections of pro-choice organizing and organizing around FASD and prenatal exposure to substances are clear: “We are all fighting for people to get health care,” she explains. For her organization, the idea of fetal personhood is the product of a shared ideology of control and coercion, linking restricted abortion access and the criminalization of pregnant people. “If your Supreme Court is interpreting your statutes around children to include embryos and fetuses, then how does that work with abortion?”
Advocacy groups for research and funding toward FASD acknowledge and condemn the criminalization of pregnant people consuming alcohol, with one organization, which requested to remain unnamed so as not to put its research at risk, reiterating that the punitive policies only prevent mothers from seeking help and add to the stigma of both mothers and children with FASD, undermining the principles of disability justice for which the movement is often fighting.
Many children diagnosed with FASD are adopted. “Children with special needs are more likely to be adopted because if you have a family that is low-resourced who doesn’t feel equipped to care for a child with special needs, they’re more likely to relinquish; and if you have a mother who is engaged in alcohol use at high levels, she’s more likely to be subject to family policing and child removal,” explains Sisson.
The anti-abortion movement, despite many members labeling themselves as supportive of FASD research funding and programs for those with FASD and their families, seeks a framework that treats fetuses with FASD as the victims of crime—and the mothers as perpetrators. At a lawmaking level, this only propagates extreme stigma against both mothers and babies with FASD and prevents families from seeking help for substance use disorders and for disability support.
Laced with saviorism and the desire to police both disability and pregnancy, the anti-abortion underpinning of pregnancy-related laws and prosecution hinders proactive and effective FASD-related support, resulting only in the targeting of pregnant patients, and not in the protection of children or mothers. On the flip side, for organizers working to support disabled people, abortion rights, and mothers targeted by pregnancy-related prosecutions, reproductive rights and policies on prenatal substance exposure are inseparable: The dismantling of fetal personhood ideologies is critical to the underpinning of both abortion rights advocacy and policies that effectively support mothers and babies, as well as reversing the Trojan horse the anti-abortion camp has been building for decades.
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