Texas just became the second state to require that aborted fetal materials be buried. Texas Governor Greg Abbott praised the law, saying Texas is “giving voice to the unborn.” He joins Indiana Governor-turned-VP-elect Mike Pence in his unrelenting and staunch “advocacy” for “protecting the unborn,” which could more accurately be referred to as his staunch determination to treat anyone who could become pregnant as a second-class citizen.
Indiana was the first state to require the burial of fetal remains back in March. HB 1337 states that a “miscarried or aborted fetus must be interred or cremated,” a rule of law that could even incriminate people who endure spontaneous miscarriages at home.
This law sparked the “Periods for Pence” movement in which people called Pence’s office en-masse to inquire about the proper disposal protocol for their period waste. After all, they asserted, fertilized eggs could potentially be hidden in one’s monthly flow without a person ever even knowing. The public outcry highlighted the extremism and absurdity of the provision.
Indiana’s fetal burial law is part of a larger anti-abortion bill that requires clinic doctors to have admitting privileges, which are part of what are known as TRAP regulations that are intentionally used as non-compliance criteria to shut down clinics. But it doesn’t stop there, either. Also included is a line item that makes seeking an abortion because of a fetus’ sex, race, or known fetal anomalies—even deadly ones—illegal, calling these practices “discriminatory.”
These laws in Indiana, while alarming, fall directly in line with other cruel, misogynistic policies that actively police pregnancy. And with Mike Pence as the nation’s co-pilot, we need to pay good attention to this history and how it is already playing out as a baseline of normalcy in other states.
In fact, we barely had time to exhale in disgust over Texas’ fetal burial law when Ohio, not missing a Lame Duck beat, rolled out their “heartbeat law.” That unconstitutional law, if passed, would ban abortions after six weeks and would be the country’s most restrictive abortion law on the books. Never mind that many people just learn they are pregnant around the six-week mark or that some won’t even notice they’ve missed a period yet. These laws aren’t about safety or morality; they are about shame, control, and punishment.
Under the tenure of Mike Pence, Indiana feticide laws, which are meant to protect pregnant people from violence, have been turned into tools for punishing pregnant people for their behavior during pregnancy. Though Pence asserted during the VP debates that “Donald Trump and I would never support legislation against women who make the heartbreaking choice to end a pregnancy,” his legacy tells a completely different story.
Punished under Pence
Purvi Patel is the most recent person to be harmed by the kinds of laws used to punish pregnant people in Indiana. In 2013, Patel was taken into custody after she went to the hospital for heavy bleeding following what she maintained was a miscarriage in her second trimester.
Patel was accused of taking illegal abortion drugs and charged with feticide. She was also charged with neglect of a dependent because she disposed of the 1.5-pound fetus in a dumpster. Feticide and Neglect of a Dependent are conflicting charges; one is the killing of a fetus and the other is neglect of a born, living person, and this conflict was hotly debated and offered as evidence of the nefarious nature of the charges.
A jury convicted Patel on both counts, and in 2015, she was sentenced to 20 years in prison. Her conviction has since been overturned by the Indiana appeals court. She was released from prison in September of this year.
This was preceded by the equally troubling case of Bei Bei Shuai, who, in 2011—after she survived a suicide attempt while pregnant—was charged with murder and attempted feticide when her 33-week-old fetus did not survive. After spending 14 months awaiting trial, Shuai took a plea deal and was released on time served.
An Escalating Problem
Indiana certainly isn’t the only state criminalizing pregnancy. In 2013, National Advocates for Pregnant Women (NAPW) published a study that involved more than 400 cases of arrests and forced interventions on pregnant people spanning from just after Roe v. Wade in 1973 to 2005.
Such infringements on autonomy and liberty are rising quickly. By 2013, more than 250 known cases had occurred since the study concluded in 2005. That’s a higher number than 60% of the cases that were found in the prior three decades in the span of just eight years.
The study concluded that though there were cases among all races, Black women were more likely to be arrested, and those who were arrested or had forced interventions were overwhelmingly economically disadvantaged.
Tennessee is another state that is gravitating toward punitive measures against pregnant people. In 2014, Tennessee passed a law that criminalized drug use during pregnancy. Their so-called “fetal assault law” had a built-in two-year expiration date, and the bill died this past summer because it didn’t have enough support to extend it. Two years may not seem terribly long, but it was long enough to do plenty of damage.
During the time the law was in effect, at least 100 people were locked up and separated from their babies, and countless people who struggled with addiction were frightened away from seeking help for their addictions or even prenatal care for fear they’d go to jail and lose their children.
In 2015, Tennessee also joined Indiana in the headlines for jailing people for abortions when Tennessee resident Anna Yocca attempted a coat hanger abortion in her bathtub at 24 weeks pregnant and nearly bled to death. She birthed a live, very premature baby when she arrived at the hospital and was subsequently arrested.
Yocca was initially charged with attempted murder, which could have carried up to a lifetime sentence. That charge has since been dropped and replaced with three felony criminal charges: aggravated assault with a weapon, attempted procurement of a miscarriage, and attempted criminal abortion.
It’s worth noting that in addition to standard barriers, like cost and mandatory waiting periods, Tennessee has only seven abortion clinics (and according to 2011 data, 96% of Tennessee counties are without a clinic). Yocca is being held on a $200,000 bond. Her trial begins this month.
Scrutinizing the Trend
Combing through the comment sections under articles that discuss cases like these reveals a social trend—one that is also picking up steam—of privileged people, desperate to distance themselves from the idea that anything like this could ever affect them, shaming and vilifying the victims of these unjust laws. “Why would she do such a thing?” is the common refrain, and it’s quickly accompanied by some variation of how the person in question is worthless, a monster, or probably both.
But people making desperate choices about their pregnancies aren’t malicious murderers, as the anti-choice crowd would have us believe. They are people, often poor and often of color, who are more than likely lacking support and material resources and always struggling to access care. That’s because anti-choice laws have been meticulously crafted to make abortion virtually unattainable for people like them.
The trends we’re seeing in anti-abortion laws aren’t new, but they are pouring into states with the ferocity of an avalanche. According to Guttmacher, by mid-2016, lawmakers had introduced 1,256 provisions relating to sexual and reproductive health and rights, 445 of which were created to restrict abortion access.
By mid-2016, 46 of those new abortion restriction provisions had passed. And since 2010, states have adopted 334 abortion restrictions. That’s 30% of all abortion restrictions enacted in less than a six-year span since the Roe v. Wade decision in 1973.
Anti-abortion laws and the punitive measures that accompany them don’t reveal something sinister about pregnant people. They do, however, unveil the sinister desires of lawmakers—mostly white men—who have made it a fundamental tenet of their platform to vilify and control people who can get pregnant.
Then and Now
No person wants to attempt an abortion on themselves. Pregnant people aren’t nefarious sadists. Restricting access to the most privileged (read: those who can take time off from work and family obligations to travel, obtain hotel accommodations, and pay for a procedure) is a literal throwback to the mid-twentieth century.
Back then, women died by the thousands every year from illegal, shoddy, or self-induced abortions. Since Roe v. Wade, that death rate has all but disappeared. Today, a first-trimester abortion (which accounts for more than 90% of abortions) only has a 0.05% complication rate, making it one of the safest medical procedures.
Considering that most abortions occur very early in pregnancy and that legal abortions are extremely safe, it’s easy to see through the pious rhetoric of the supposed “sanctity” of life. These laws aren’t about the potential or value of a fetus; they are about controlling and punishing pregnant people.
With Trump and Pence at the helm, a soon-to-be conservative-leaning Supreme Court, and 33 GOP state governors who this administration would like to give control over reproductive choice, we can expect to see increasingly outrageous and frequent abortion restrictions and the consequences that accompany them. Those consequences will involve people dying and being jailed. The prospect of an unplanned pregnancy has never felt more terrifying in my lifetime.