THE PREGNANCY PENALTY.

Abstract

Punishing pregnant women increasingly serves as a litmus test in political discourse, inviting more than a metaphor about state sanctioned violence targeted at women. In 2016, candidates for the United States presidency threatened to defund Planned Parenthood if elected and a leading candidate promised he would "punish" pregnant women who seek abortions. Other presidential candidates urged that even victims of rape and incest should be forced to carry their pregnancies to term, imposing yet another penalty or strike against sexually violated women and girls. Local legislatures and governors show equal contempt for and desire to penalize women in their states. In Utah, Gov. Gary Herbert took up the call to use a "very strong stick" in policing reproduction by signing into law the Criminal Homicide and Abortion Revisions Act, which applies only to pregnant women. The law seeks to punish pregnant women who "knowingly" commit acts that might result in miscarriages. In 2011, Texas Rep. Doug Miller authored and introduced a bill in his state legislature that would make it a felony to ingest any controlled substance during pregnancy. Wisconsin's legislature passed a law that forces pregnant women to receive vaginal probes as a pre-condition to receiving an abortion. To obtain an abortion without undergoing the vaginal probe is a punishable violation of law. Some women's groups compare vaginal ultrasound laws such as that in Wisconsin to state sanctioned rape with a rod. Other legislative efforts include establishing personhood in embryos and fetuses. Many of the laws seeking to punish pregnant women and regulate their pregnancies introduce criminal sanctions into gestational conduct, broadly criminalizing any behavior that could harm fetal health. All of these laws selectively target pregnant women.