Wine, 'Fetal Personhood', & Activism: A Discussion with Lynn Paltrow

Joanna:

I am very excited to be talking with you today: thanks so much for your time.

I came across your work when reading an academic paper that you published in 1990 on the criminalization of pregnant women who drink alcohol or take proscribed drugs, so it resonated with my current research on female cultures of drinking (my ‘working title’ is Wine: History, Memoir, and the Muse). I then learned that you graduated from Cornell University and the New York University School of Law. You were the founder of Pregnancy Justice, an amazing organisation (formerly known as the National Advocates for Pregnant Women), served as a senior staff attorney at ACLU’s Reproductive Freedom Project, was a founding attorney and director of special litigation at the Centre for Reproductive Law and Policy, and was Vice President for Public Affairs for Planned Parenthood of New York City. You have been the recipient of numerous awards, starting when you were only a law student. These have included advocacy and activism awards, courage awards, women of valour awards, honorary doctorates from the City University of New York and John Jay College of Criminal Justice, and were listed in the top 100 outstanding gay achievers by Out Magazine. And these are just a few! As well as being an activist, involved in legal advocacy, education, and organising for racial justice, drug policy reform, and disability and LGBTQ rights, as well as initiatives against domestic violence and mass incarceration, you’ve also written academic papers.

I am always curious about how people see their own lives. Lynn: how would you summarise your career? What are some of the highlights (or low points) for you personally?

Lynn:

Thank you for the introduction and those questions. How do I see it? I grew up on Long Island, New York. My parents were very committed to civil rights and social justice. I was a true child of the sixties in the sense that, as a child, my parents took me to civil rights marches and peace marches. I took to heart everything they said. As it turned out, what they said and what they did weren’t really the same thing. At the same time that they were taking me to civil rights marches, they chose to live in a white, segregated community. It was part of New York State, but it might as well have been in the Deep South in terms of how conservative and racially segregated it was. For college, I ended up at  the New York State School of Industrial and Labor Relations at Cornell (I like to tease that I got confused about which ‘labour’ they meant!) and went to law school because every public interest job that looked interesting to me said they had internships for first-year law students. I very carefully chose a law school that had a commitment to public interest law.  That school was the New York University School of law where I would read Roe v. Wade, (the 1973 US Supreme Court decision, recognising a fundamental right to choose abortion) for the first time.  

I read Roe with this enormously hopeful perspective. Essential to the decision was the Court’s conclusion that, at no stage of development, are foetuses ‘persons’ under our Constitution: the 14th Amendment’s guarantee of equality applies only to all persons born. Somehow,I assumed the corollary was true, that if foetuses at no stage of development were ‘persons’, then this had to mean that women, the people who can get pregnant, had been recognized (finally) as full constitutional, rights-bearing persons even when they are pregnant and at all stages of pregnancy.

Unfortunately, the cases I would end up working on taught me that this corollary was far from true.

I started out defending the right to choose abortion at the ACLU Reproductive Freedom Project. I then began to  get cases in which anti-abortion arguments were being used to hurt women who did not want to end their pregnancies. I began documenting those cases and taking them on. These were mostly cases that none of the other U.S. reproductive rights groups wanted. These cases typically involved women who faced numerous multiple intersecting discriminations and numerous structural barriers to health care and to their economic security. These were women who were being arrested and subjected to punitive child welfare actions as well as forced medical interventions that deprived them of numerous fundamental rights – far beyond the single right to an abortion. These arrests and forced interventions were based on claims of fetal rights and ‘personhood’ for the unborn.

This made clear to me that what was really at stake and something never fully established in US law, is the personhood of women and their status as full, free and equal citizens.  It felt to me like that was what  I needed to be working on.

Joanna:

Can you elaborate? In particular, can you tell us more about Pregnancy Justice, an organisation you founded.

Lynn:

I started working on cases involving women who didn’t want to end their pregnancies but were being hurt by anti-abortion ideology. For example, I represented the family of a woman who was forced to have caesarean surgery despite the fact that the judge knew that this surgery could kill her. He stated that he ‘had an obligation to give the fetus a chance to live’. Over the woman’s clear objection – she had mouthed the words ‘I don’t want it done, I don’t want it done’ as she was being taken from a supportive intensive care unit to a surgical theatre. The surgery was performed. The non-viable fetus died within two hours and the woman died three days later with the caesarean surgery listed as a contributing factor.

In another one of my earliest ‘non-abortion’ cases, I helped to defend a young mother in California from criminal charges based on claims of fetal rights and pregnant women’s lack of rights. (I thought I was doing constitutional law – and I was – but suddenly I’m doing criminal law without even realising it.) In this case a woman gave birth to a very much wanted baby boy, who died five weeks later. She was then arrested under a weird California criminal ‘child support law’ on the grounds that a variety of things she alleged did or failed to do while still pregnant caused the baby’s subsequent death. She was accused of being a criminal because she didn’t get prenatal care early enough, because once she got prenatal care she didn’t follow her doctor’s advice to get bed rest while living in a trailer and caring for her two daughters and her husband; because she didn’t get to the hospital quickly enough on the day of delivery; because she allegedly used an amphetamine while pregnant, and (my favourite), because she had ‘subjected herself while pregnant to the rigours of sexual intercourse!’ Despite the fact that the prosecutors admitted that drugs were really not an issue in the case, it was that claim that got the most attention.

These were just the first two of what would be followed by hundreds and then thousands of similar cases across the U.S. At the ACLU and Centre for Reproductive Rights, I was allowed to work on some cases arrests and punitive civil child welfare interventions against women who weren’t seeking abortions. But these kinds of cases were not the priority of either of those organizations. In the late 1980’s claims of fetal personhood were increasingly being used to justify arrests – especially of Black mothers who were pregnant and allegedly using ‘crack’, the smokable form of cocaine. Racism, met sexism, met 40 years of drug war propaganda in these cases.

Because they weren’t specifically about the right to abortion (but rather the impact of fetal personhood claims beyond the issue of abortion alone) and because the targets were so often Black women, there was not a huge amount of enthusiasm for the work I did on these case. Eventually, I realized, it was time to go. I also realized that  in order to do the work I thought needed to be done, I would need to start my own organization that I named  National Advocates for Pregnant Women.

Following the first criminal case I worked – the California case I described earlier -  local advocates had started a group called California Advocates for Pregnant Women to continue advocating for pregnant women, especially those targeted based on claims of pregnancy and drug use. That important organization did not survive but it provided a valuable model for me, so I name my new group National Advocates for Pregnant Women around 1998-99 and got an independent A 501(c)(3) [making it a U.S. tax-exempt nonprofit organization] in about 2001.

A few years ago, the name was shortened to Pregnancy Justice – a much shorter name and in that sense way better for a generation that reads the news on the small screens of cell phones.  The purpose of the organization is the same - to ensure that neither pregnancy nor any possible outcome of pregnancy (whether that’s abortion, pregnancy loss, or birth) are reasons to deprive people of their civil and human rights. I am very proud of the fact that the organization is about to celebrate its 25^th anniversary!

Joanna:

It’s an amazing organization.

As you know, I’m writing a book on women and wine, a history of female cultures of drinking. In the course of research for a chapter on negative attitudes towards women who drink alcohol, I came across your remarkable article in the journal Criminal Justice Ethics. The title of the article is ‘When Becoming Pregnant is a Crime’, and it came out in 1990. In it, you write about attempts in law to prosecute and punish women who drink or take drugs during pregnancy. You asked, should the private behaviour of pregnant women be an issue of public policy? As you point out, ‘because no woman can provide the perfect womb, criminal prosecutions become dangerously close to turning pregnancy itself into a crime’. If the issue is harming embryos or foetuses, should pregnant women be arrested not only for drinking alcohol, but also for having treatment for cancer or epilepsy, working in places where dangerous chemicals are used, or even living with a tenant or a partner who’s a heavy smoker?

Can you talk us through, firstly, the context (late 1980s) in which of you writing this article? Secondly, two decades on, haven’t things got a lot worse? In 2024, you found that around 210 women in the U.S. were prosecuted for ‘endangering embryos or foetuses’.

Lynn:

In the mid to late 1980s, I started seeing patterns and hearing alarm bells. Prosecutions of pregnant women went from one or two cases in the mid-1980s to 35 cases by the time I wrote that article. That was frightening to me. I wanted to bring attention to it in the hope that it would not get worse. Sadly, it keeps getting worse. I have worried about whether, by appearing  on U.S. television programmes like Nightline, about my early cases I was inadvertently promoting the idea among prosecutors that if they start arresting pregnant women, they’d could get on TV and build their reputations.  I also worry that in my numerous lectures and talks where I spent a lot of time focusing on true-horror stories about bad things that were happening to pregnant people, I was also missing opportunities to encourage  activism.

I am a great fan of a communications expert named Anat Shenker-Osorio, who works a lot with progressive politicians and other leaders. She has criticised the way progressives talk, parodying it as typically going something like this: ‘Hi! I’m on the Titanic. Would you like to buy a ticket?’ I feel that in my many talks and presentation I was telling people, ‘we’re on the Titanic when it comes to the status of people who get pregnant; support my organization.’  I would tell them how vulnerable Roe v Wade was and told stories about numerous ways in which being pregnant made women vulnerable to punitive state action. I talked about a woman who was pregnant and locked up because she had exposed herself to  ‘dangerous fumes’; a case where a woman was arrested for being pregnant and falling down a flight of stairs; a case where a woman was arrested for allowing herself to be shot while pregnant;  another where a judge refused to release an HIV positive woman from prison when he learned she was pregnant and yet another where a woman was taken into custody because she was trying to have a vaginal birth after a caesarean! I also described cases where women who experienced miscarriages and stillbirths have been arrested, locked up and convicted of murder as well as scores of cases where women had given birth to perfectly healthy babies but had allegedly posed some risk to their fetuses during their pregnancies.

I would explain that despite the fact that most of the time these arrests weren’t happening because there were actually laws on the books making pregnancy and drug use, or pregnancy and something else a crime, but because prosecutors were building on anti-abortion/fetal personhood arguments to insist that any criminal law that used the word ‘child’, ‘person’, ‘minor, or ‘human being’ could be used as a basis for policing pregnancy. These laws ranged from child abuse and child neglect laws – which only involve a risk of harm not proof of any harm – to contributing to the delinquency of a minor – to such crimes as manslaughter, murder and ones with such names such as ‘depraved heart homicide’. Prosecutors also appropriated ‘feticide’ and ‘fetal murder’ laws that had been passed in response to violence againstpregnant women, and instead used such laws against the women themselves.  In other words, women who experienced pregnancy losses have been and are being arrested for the crime of feticide and in the case of one Indiana woman who attempted suicide while pregnant, arrested for attempted feticide.

And following my presentation of this ‘titanic’ set of horrifying cases, I have sometimes summed things up by noting that if anti-abortion forces succeed, it is not a big leap or even a giant step to viewing every woman as a criminal from the moment she becomes pregnant. Since every pregnancy has at least a 15-20% chance of ending in the death of a ‘child’ as a result of a miscarriage or stillbirth then simply by becoming pregnant women put their unborn children at risk of death, and by doing so, commits a crime. 

Because of Anat Shenker Osorio’s work, I am now much more aware of the need to emphasize the fact that in the vast majority of arrests that we fought, we won and got the charges dismissed (as in California criminal case I described earlier). Similarly, we have won major challenges to the forced medical interventions on pregnant patients – including the case I described at the beginning of our conversation.  And win or lose, because we litigated in ways that engaged and educated the communities where the arrests and forced interventions occurred, they were better prepared to fend off and oppose future abuses of prosecutorial power. Indeed, in at least one case our work enabled local activists to defeat a prosecutor who had brought murder charges against a woman who had experienced a stillbirth.

The challenge is to find ways to convey the profound threat these cases pose without causing people to shut down  And in the small number of states where we have lost, we have to convey the terrible damage to individual women and to public health without discouraging efforts to  turn those losses around. In fact, opposing these punitive approaches gives people an opportunity to work together for life and health. Because the possibility of arrest clearly deters pregnant women from seeking prenatal care and drug treatment when they need it, it is by working against punitive responses to the humans who get pregnant that we can protect actual and potential life.

Joanna:

What is driving this foetal protectionist movement? I may have the timeline wrong, but in my understanding, it really took off in the 1980s, declined slightly in the early 2000s, and now it’s gone intergalactic! What do you think is driving these very harmful policies towards people who can become pregnant?

Lynn:

That a great question. And I don’t think there’s a simple answer; these cases reflect multiple intersectionalities, especially in the United States.

In the 1980s, there was a confluence between the war on drugs, the war on abortion, and claims of foetal rights that took place in the US context still defined and limited by its legacy of slavery. I have never been able to find anything that documents how the anti-abortion movement originated these kinds of cases, but prosecutors started to see an opportunity in combining the anti-abortion ideology of separate foetal rights with the war on drugs and pervasive racism in the US. Nobody has ever been able to stop drug use in the United States. The US war on drugs failed – at least in the sense it did not stop people from desiring and using the drugs our country decided to criminalize. (It did succeed in providing a basis for locking up millions of people disproportionately focusing on Black people). Also think of alcohol Prohibition [1920-1933, when there were laws passed in the U.S. prohibiting the production, importation, transportation, and sale of alcoholic beverages]. That didn’t work either. But prosecutors who couldn’t win the war on drugs, could make it appear as if they were saving lives by targeting pregnant drug using women and claiming that doing this was saving unborn lives. The way they purport to do that is by locking women up in jail where not only deprived of their liberty and dignity but also the health care, support, and nutrition that they actually needed.

There was a moment when some individual prosecutors around the country focussed on crack, the smokable form of cocaine. There’s much evidence that crack was deliberately brought into the United States, and deliberately spread in poor,black communities. So, you have this confluence of anti-abortion ideology, forty years of a drug war misinformation, and racism. The image of who was using drugs to harm their future children were Black mothers, also labelled ‘welfare queens’ who were portrayed as not caring about their kids at all. There was an upsurge in arrests. It was never only Black women who were being arrested,  but during that time period it was very disproportionately Black women. It’s explicitly racist. I remember a New York Times article written by a journalist who I’m sure does not think of herself as racist, but she was talking about some other subject and then analogized whatever was going on by saying something like: ‘The kittens were left unattended like crack babies in Harlem on the doorstep’!

The claim was that Black pregnant women and Black mothers were using a drug that was permanently damaging their children to the point of being unable to recognise love or the face of God or whatever. These Black women were ‘using’ drugs despite knowing the harm. The journalists who were covering the use of crack were mostly white, and it apparently never occurred to them to investigate why the use of cocaine in the smokeable form (‘crack’) was different from the even more widespread use of cocaine by wealthy white people in the 1970s.   Breathless news stories claimed that it was instantly addictive and that it caused severe damage to children who had been exposed prenatally. None of that was true! If somebody had claimed that white women were using some drug that was causing severe damage to their children and that these white women continued ‘using’ despite knowing that their babies were going to be damaged, commentators would have said, ‘we need to question the research being relied on for these claims’. But because the claims were being made about Black mothers – with their motherhood debased and denied since the beginning of US history - they did not question the so-called research. Actual, carefully constructed, evidence based research  by people such as Dr Debbie Frank [a paediatrician who did this research at the Boston University School of Medicine and Boston Medical Center) and others found  that there is no such thing as a ‘crack baby’. Nevertheless, the myth of the 'crack baby' persists. Of course, I understand people’s concerns, given the history of the drug thalidomide, but thankfully drugs that cause that kind of harm are rare and none of the criminalized drugs are in that category.

Nevertheless, I’ve represented numerous women who’ve experienced pregnancy losses, stillbirths and miscarriages, who have been arrested for murder based on the claim that they tested positive for one or another of the U.S.’s criminalised drugs: ‘she took methamphetamine, she had a stillbirth, therefore the methamphetamine caused the stillbirth and she’s a murderer’. But if you speak to forensic pathologists, methamphetamine does not even have a plausible pathway for causing a pregnancy loss and none of the criminalised drugs in the United States are abortifacients. When trying to make audiences understand this is, I say: if methamphetamine or heroin or any of the opioids or amphetamines or marijuana were good at causing pregnancy loss, I’d be shipping them to the thirteen US states that have outlawed abortion!

We need to stop accepting drug war propaganda, and we have to start ensuring the civil and human rights of the people who have the capacity for pregnancy. This includes recognizing that anti-abortion propaganda equating abortion with murder is a form of hate speech that conveys the idea that it is OK to think of pregnant women (the folks who have abortions) as criminals.

Joanna:

In one interview I read, you described yourself as ‘a lawyer who tries to use the legal system to achieve justice’ while I see you more as an academic who tries to achieve justice through reasoned arguments in some of the top journals in the field. These include The American Journal of Bioethics, American Journal of Public Health, Journal of Health Policy, Politics, and Law, Addiction, New York University Journal of Law and Social Change, Journal of Addictive Diseases, Women’s Health, The Hastings Center Report, DePaul Journal of Health Care Law, Journal of the American College of Obstetricians and Gynecologists, Wayne State University Law School Journal of Law and Society, Southern University Law Review and so on. Do you see any tensions between your academic work and your activism, or are the two actually the same for you?

Lynn:

It’s all the same for me: if I’m hoping to bring about an inclusive democracy based on justice for all, I want to use every tool at hand. It has been useful to watch what other people did before me. Before 1973, when abortion was criminalised in almost every U.S. state, activist groups such as Red Stockings and New York Women for Liberation, started holding Speak Outs, where women publicly admitted that they had had abortions. They took abortion, an issue that was so stigmatized, and so shameful that it was not spoken of  in public and made it political, a very vital political issue. I have had the privilege of knowing and working with some of the lawyers who were challenging New York and Connecticut’s criminal abortion laws in late 1960s and early 1970’s. As part of their litigation, they took testimony from women who had had abortions, and they did it publicly, like a Speak Out. Some years later, when I had a fellowship in Washington, DC, working at what was then called NARAL, the National Abortion Rights Action League, they had collected stories from women describing why they had had abortions. This was mid-1980s. At that point, there was another abortion case going to the US Supreme Court. And I thought: why can’t we write an amicus brief using their voices, bringing them into the Supreme Court? If a strategy worked, or a strategy had a possibility of working, it made sense to try it.

It’s important to recognise that most judges and legislators get their information from the same place everyone else does. I learned during the ‘crack baby’ hysteria that most doctors around the country didn’t get their understanding of pregnancy and drug use from research articles; they got it from their local newspaper like everybody else. And the judges were playing golf with those doctors. So that in order to try to bring about change or to prevent worse things from happening, it felt like: let me try to bring what I’m learning to every possible audience I can. By litigating and combining that with organizing and public education – including by writing commentaries for popular media as well as academic papers when my time permitted, I felt like I could reach more people and build more support for achieving and protecting the personhood of people who get pregnant. By continuing to working on cases at the same time, it kept me honest. I didn’t write from the remove of academia and it meant that I could bring current and compelling information to the public that might also help my clients.  I knew what was going on. I wasn’t just seeing it second-hand. I was watching my clients experience whatever was being done to them and working with them to challenge it.

Joanna:

I’ve taken up far too much of your time, Lynn, but I’ve got one final question for you. You have a reputation for incisive thinking, an ability to get people from different sides or different points of view talking to each other, and for inspiring other people to get active in politics. What would you say to someone who, up until this stage in their life, hasn’t ‘done’ activism but is disturbed by what’s happening right now, not only in America, but throughout the world? What kind of advice would you give?

Lynn:I will share the advice I got from Rabi Sharon Kleinbaum [prominent spiritual leader and social justice advocate]: ‘No one can do everything; everyone can do something’.

I feel as though part of what I was doing throughout my career was knocking on democracy’s door and saying, ‘let everyone in, including the people who can get pregnant’. I now fear that that door is not going to exist anymore; that democracy’s door is being dismantled by our current administration. I certainly have a lot of tools and a lot of privilege, but no one, including me, can ‘do everything’. And having stepped down (after 21 years) from running my organization, one 'something' I have been doing is helping to lead the BeaconforDemocracy.org. The Beacon is an unincorporated, primarily volunteer organization that brings together people of all faiths and secular backgrounds who feel called to stand with those facing injustice. The Beacon responds to the question, ‘What can I do now?’  One of those things is participating in ongoing, visible resistance. And we are supporting people to do that through our ‘Shine the Light’: campaign where we ask people to go outside for half an hour every Thursday with signs that we’ve made (and they differ from week to week) about what we’d like to see our country do and be, as well as what we’re upset about. We try to do it in a supportive way; we try to do it in a way that recognises that joy is an act of resistance. Music is an act of resistance. Being part of community is an act of resistance because what the authoritarians want is for us to be depressed, isolated, and fearful.

That is something everybody can do. You don’t need a law degree, you don’t need anything, only to connect with those people in your communities and neighbourhoods. That might be by holding a sign together somewhere for half an hour every Thursday and ‘shining the light’. It might be just going out and picking up garbage on your street, as a reminder that in the midst of the terrifying advance, of authoritariansim, in the midst of feeling hopeless, there is something that we can each be doing. And doing the smallest thing first may open our ideas to the bigger things we can do as well.

I found Lynn Paltrow’s website extremely informative and inspiring. Check it out, here: https://lynnpaltrow.com/about