Trouble Ahead

The New Battle Over Reproductive Rights

Why the pro-choice movement can’t get bogged down in a fight over laws to protect newborns.


The reproductive rights debate has taken a startling turn over the past few years. Somehow abortion stopped being the preeminent issue, and was instead replaced by heated debates over birth control, insurance and a craft store called Hobby Lobby. But now the debate is preparing to enter a new phase, spurred by controversial new laws regulating what women can do while pregnant, and the impending legal battles could end up determining whether the pro-choice movement maintains any momentum or credibility in upcoming election cycles.

Days ago, a woman named Mallory Loyola was arrested and charged under a new Tennessee law that criminalizes drug use by pregnant women that’s harmed their newborns. According to text of the bill, the law allows “a woman may be prosecuted for assault for the illegal use of a narcotic drug while pregnant, if her child is born addicted to or harmed by the narcotic drug.”

The law makes allowances for pregnant women with substance abuse problems who seek treatment before giving birth to avoid jail time. Still, Loyola’s arrest has inspired anger from some women’s rights advocates, and a stern denouncement from National Advocates for Pregnant Women, which has offered to help with Loyola’s defense.

Of course defending a pregnant woman’s right to abuse drugs seems to fly in the face of medical knowledge and common sense. But for an increasing number of Americans, it’s also likely to inspire some soul searching on what the words “right to choose” really mean.

Consider this: If a woman chooses to carry a pregnancy to term, and her partner assaults her to intentionally cause a miscarriage, he could face charges. Most of us would applaud that.

But what if a woman chooses to carry a pregnancy to term and chooses to abuse substances in the third trimester, which then results in harm to her fetus? Some of the people who would applaud a man’s arrest in the former scenario would decry the woman’s arrest in the latter.

Critics of the Tennessee law, including local representatives of Planned Parenthood, argue that the law emphasizes criminalization over treatment, and will deter some women from seeking drug treatment out of fear.

But what these critics fail to acknowledge is that, by this logic, a mother should never face incarceration even if she endangers a newborn while under the influence. After all, what if she fears incarceration and hides her child and her addiction from the rest of the world to avoid detection and arrest?

The bottom line is, choosing to become a mother is not supposed to serve as a “get out of jail free” card. If anything, women should be held to higher levels of accountability when they decide to have children.

But the other major issue for some critics is the idea that the Tennessee law creates a slippery slope. Some reproductive rights organizations fear that criminalizing any behavior during pregnancy opens the door to criminalizing the choice to terminate one. Taking this approach is not only misguided, but a serious strategic gamble for the pro-choice community.

Underneath the surface of the high-profile legal clashes over abortion rights, there has always been a more contentious cultural and gender clash at play. A common talking point among supporters of reproductive rights is that the battle is ultimately about who controls women’s bodies, and that men who wish to control women’s bodies do so via laws that restrict reproductive rights.

While this may be true for some opponents of reproductive rights, it is certainly not true for all them. For some, the real issue is that the words “right to choose” are at times associated with a system that seems designed to incentivize some unhealthy choices that ultimately hurt women, children and families.

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Here’s one example. A woman chooses to have a sexual relationship with a man who says from the beginning he does not want children. She becomes pregnant. Legally, the choice to carry the pregnancy to term is hers and hers alone. His only choice will be to pay child support or go to jail. So if the ultimate choice regarding whether to bring a child into the world rests with women, then shouldn’t we bear more of the responsibility for care in the womb?

This laissez faire attitude about reproductive rights is not only morally questionable—it’s politically dangerous. According to Gallup, polls show Millennials are less supportive of abortion than young people of previous generations. “Young adults,” they found, “were slightly more likely than all other age groups, including seniors, to say abortion should be illegal in all circumstances.”

This means that between the assault on abortion rights at the state level, and the evolving attitudes of Millenials, the reproductive rights movement already has a tough road ahead. That road will only get tougher if Americans begin to associate the words “the right to choose” with the words “irresponsible” and “extreme.”

Not holding women accountable for choosing to carry a pregnancy to term and then engaging in harmful behavior is both irresponsible and extreme. And such efforts will only make it less likely that Americans choose to identify as supporters of reproductive choice.