You might be surprised to learn that in the United States a woman coping with the heartbreak of losing her pregnancy might also find herself facing jail time. Say she got in a car accident in New York or gave birth to a stillborn in Indiana: In such cases, women have been charged with manslaughter.
In fact, a fetus need not die for the state to charge a pregnant woman with a crime. Women who fell down the stairs, who ate a poppy seed bagel and failed a drug test or who took legal drugs during pregnancy — drugs prescribed by their doctors — all have been accused of endangering their children.
Such cases are rare. There have been several hundred of them since the Supreme Court issued its decision ratifying abortion rights in Roe v. Wade, in 1973. But they illuminate a deep shift in American society, away from a centuries-long tradition in Western law and toward the embrace of a relatively new concept: that a fetus in the womb has the same rights as a fully formed person.
This idea has now worked its way into federal and state regulations and the thinking of police officers and prosecutors. As it has done so, it’s begun not only to extend rights to clusters of cells that have not yet developed into viable human beings, but also to erode the existing rights of a particular class of people — women. Women who are pregnant have found themselves stripped of the right to consent to surgery, the right to receive treatment for a medical condition and even something as basic as the freedom to hold a baby in the moments after birth.
How the idea of fetal rights gained currency is a story of social reaction — to the Roe decision and, more broadly, to a perceived new permissiveness in the 1970s — combined with a determined, sophisticated campaign by the anti-abortion movement to affirm the notion of fetal personhood in law and to degrade Roe’s protections.
Political ambition has also played a powerful role. Out of concern for individual freedom, the Republican Party once treated abortion as a private matter. When Ronald Reagan was governor of California, he signed one of the most liberal abortion laws in the land, in 1967. As late as 1972, a Gallup poll found that 68 percent of Republicans thought that the decision to have an abortion should be made solely by a woman and her doctor.
But after Roe, a handful of Republican strategists recognized in abortion an explosively emotional issue that could motivate evangelical voters and divide Democrats. In 1980, as Mr. Reagan ran for president, he raised the cause high, and he framed it in terms of the rights of the unborn. “With regard to the freedom of the individual for choice with regard to abortion, there’s one individual who’s not being considered at all. That’s the one who is being aborted,” he said in a debate that year. “And I’ve noticed that everybody that is for abortion has already been born.”
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