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Posted on June 27, 2019 at 5:55 PM

by Craig Klugman, Ph.D.

Procreative liberty is an important right in the United States that is frequently under attack these days. As first defined by John Roberts, JD, procreative liberty is the freedom to decide for oneself whether or not to have children. Protecting procreative liberty is important not just for a situation like being able to choose abortion, but also because procreative liberty is about having autonomy over one’s own body. For example, in 1979, China instituted the one child policy—a couple could only legally have a single child—in order to curb exponential population growth. To enforce this policy, couples (mostly in urban areas) were coerced into having abortions, people frequently chose to abort fetuses of the wrong sex, and families with more than one child found themselves hit with punishments that included a loss of health care and education. The policy was rescinded in 2015.

When people do not have control over their own bodies, then they become objects over whom others have control. In ancient Rome, women, children and slaves were the property of a male citizen. That owner could use his property anyway he wanted including assault and even killing them, with no repercussions to him. With the increasing number of restrictive abortion laws, many of us social critics suggested that the real issue was the slippery slope—if the state owns your body more than you do, then the state controls you. A case this week shows that such fears are based in reality.

Marshae Jones is an Alabama resident who was shot in the stomach when she was five months pregnant after she began arguing with another woman. Jones survived but her fetus did not. The woman with the gun who shot Jones did not face any charges. However, Jones is now in prison on manslaughter charges for having placed her fetus in danger by starting the argument. According to police, to protect the fetus, she should have “removed herself from harm’s way”.

In Alabama then, shooting another person is not a crime, but failing to protect a fetus from an unlikely (and completely irrational) escalation is a crime. Like the Indiana Jones joke of “never bring a sword to a gunfight” there is no excuse for shooting someone because of an oral argument. But apparently, that was not the crime here. One has to ask if Jones had died, would the shooter have been prosecuted? If the fetus is being considered a “child” under Alabama law then why isn’t the shooter being charged with murder? One answer may be that gun rights supersede any other right in Alabama. A second answer is that this case is a message to all women in the state—your life is worth less than your fetus. To the state, a women may be nothing more than a vessel for the unborn.

The implications of this are staggering and frightening (Gileadean for The Handmaid’s Tale fans). If prosecuted and convicted, woman in Alabama would be second not only to the fetus, but also to anyone who might deliberately harm them. What about a woman who flies in the 37th week of pregnancy (something usually discouraged)? Or the woman who has a drink before she knows she is pregnant? Under this line of reasoning, these women might be considered at fault of endangering the fetus. By this thinking, if a man physically attacks a woman and she miscarries, it is the woman who has done wrong—she should have appeased the man to protect the fetus. He is not at fault; she made him do it.  A stretch? Consider that the Alabama law makes it illegal to terminate a pregnancy even as a result of rape. This is also the same state that has sanctioned a woman for not permitting her rapist to have visitation with the child that is the product of that battery.  The physical, emotional, and mental well-being of women is not equal to that of men.

The slope may even get steeper. If a woman’s bodily integrity is second to a pregnancy, what about the woman who is infertile? Does she matter at all or is the value of a woman solely based on her usefulness as an incubator? This may seem farfetched, but consider Marlise Muñoz who was brain dead and her family wanted her removed from body supporting technology. The Texas hospital would not do so, based on a state statute that the hospital interpreted as meaning they had to keep her body functioning until a possible birth. Or consider the city of Charleston, S.C. that arrested pregnant women who were suspected of cocaine use. Thirty women were arrested, many of whom were chained to hospital beds during birth and then separated from their newborns.

All of this is a result of an accident of biology—that women gestate the fetus and not the men. If we were seahorses, then the males would do the gestating, and procreative liberty would likely be sacrosanct. Saying that a woman’s bodily integrity is controlled by the state, by her husband, or even her rapist, is akin to saying that men should be convicted for not bringing each and every sperm to birth. The average male produces over 500 billion sperm in his lifetime, so that many children would quickly overwhelm the planet and is a ridiculous proposition. But the idea of the scenario is that if women do not have procreative liberty, then neither should men.

Perhaps it is the father of Jones’s fetus who should be put in prison for failing to protect his fetus (women cannot create fetuses on their own)? After all, if the traditional role of the male is “protector” then this guy failed miserably. Yet, it is only women who are punished. It is only women who are controlled by male legislators passing restrictive laws that violate human rights.

The boulder of controlling women’s bodies and the loss of female procreative liberty is gaining speed down the slippery slope. What other rights might women lose? Title IX insures participation in sports, but such participation could lead to injury which might affect reproductive health. Should women be prohibited from participating in sports? The only people who should have control over their body is the person whose body it is. Jones should be released immediately. The person who shot her should be facing some serious charges. But in our dystopian world, common sense is turned upside down. While reversing the loss of civil and procreative liberties may feel like a Sisyphean task, it is one that we must undertake.

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