Roe Protects the Full Range of Pregnant Women’s Rights

Rachel Roth

Will the Senate Judiciary Committee ask Sotomayor about her position on Roe's role in protecting all the rights of pregnant women?

Yesterday, National Advocates for Pregnant Women released a letter
to the United States Senate Judiciary Committee in order to draw attention to
the violation of women’s rights and the erosion of women’s personhood that
would surely follow if the Supreme Court ever overturned Roe v. Wade.  Along with the other 100-plus people who signed the
letter, I hope it will encourage members of the Judiciary Committee to engage
Judge Sonia Sotomayor in a broad discussion about reproductive rights and about
the status of pregnant women as full persons, which are increasingly under attack.

When Judge Sotomayor appears in front of the Committee this
July, senators across the political spectrum will likely try to ascertain her
views on Roe v. Wade.  But do they – and do people across the
country – appreciate the broader scope of that famous Supreme Court decision? Roe v. Wade stands for women’s
reproductive self-determination: for the right to have an abortion and the
right to have a baby.  Both dimensions of Roe‘s
promise are critical to women’s lives, yet most people are far more familiar
with one than the other.

Women’s Right to Abortion

Most of us know that Roe
v. Wade
recognized women’s constitutional right to an abortion.  In a case about the right to
use contraception decided one year before Roe,
the Court declared that if the right to privacy means anything, it is the right
"to be free from unwarranted governmental intrusion into matters so
fundamentally affecting a person as the decision whether to bear or beget a
child."  The Court applied this logic to abortion, concluding that
women’s rights to liberty and privacy encompass the decision to terminate a
pregnancy. The Court understood "the
detriment that the State would impose upon the pregnant woman" if it denied her
the ability to make that decision.

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Elaborating on this detriment almost 20 years later in Planned Parenthood v. Casey, the Court
stated that each woman
who carries a pregnancy to term "is subject to anxieties, to physical
constraints, to pain that only she must bear." Just because women have always
borne these burdens is not enough of a reason for the state to insist that they
do so; a woman’s "suffering is too intimate and personal for the State to
insist, without more, upon its own vision of the woman’s role… The destiny of
the woman must be shaped to a large extent on her own conception of her
spiritual imperatives and her place in society."

The late Dr. George Tiller expressed this philosophy more
succinctly when he said that abortion is about women’s "hopes and dreams." For
most women in the United States, those hopes and dreams include raising
children. Because women want to decide how many children to have and when to
have them, many also end a pregnancy at some point in their lives.  At current rates, one in three women in the U.S. will have an abortion in her lifetime.

The Court held in Roe
v. Wade
that women’s rights are not absolute, and struck a compromise
between women’s rights to reproductive autonomy on the one hand and the state’s
interest in potential life on the other. Roe
did not establish a contest between women’s rights and "fetal rights;" rather,
it recognized a state interest in the
potential life of the fetus, because fetuses are not persons with rights or
interests of their own under the constitution.

Over time, the Court has given greater deference to state
interests in potential life, allowing more restrictions on women’s abortion
rights throughout pregnancy, but the Court has always been clear that the final
decision rests with women, and that a woman’s health and life always come
first; this is why women can have abortions after viability, when their health
or life is at stake.

Women’s Rights during Pregnancy

Some people misunderstand – or misrepresent – the compromise
the Court struck, and argue that after a woman’s pregnancy reaches the stage of
viability, the state can intervene not only to stop a woman from having an
abortion, but to dictate how she should live as well.

Based on this misreading of Roe, some judges have granted orders to force women to submit to
cesarean surgery or blood transfusions against their will. Prosecutors have
invented crimes of "fetal abuse" that have no basis in statutes, such as
"delivering drugs to a minor" through the umbilical cord, or equating
stillbirth with homicide. Even though these cases rarely stand up to the
scrutiny of appellate courts, there is always another prosecutor in another
jurisdiction willing to bring such charges against women.

Judges have also sentenced women to jail time to "protect"
their fetuses, despite the troubling conditions in jails and prisons, including
documented cases of women giving birth in their cells without any medical
attention.  Just this month, a
judge in Maine ordered a pregnant woman to remain in jail
because she is
HIV-positive, until her attorneys and a coalition of "friends of the court" persuaded
the judge that this not only violated the woman’s rights to fair treatment, but
would likely result in disruptions in the medical care that he claimed was his
reason for imprisoning her.

Ours is a culture where a pregnant woman’s every move is
increasingly scrutinized by family, friends, co-workers, and perfect strangers.
People feel free to pass judgment on what a pregnant woman eats, drinks, and
does: Is she gaining too much weight or not enough? Is that coffee
decaffeinated? Is that a glass of wine in her hand? Pregnant women themselves
may be confused by conflicting messages, even from within the scientific
community, about what they should do, for example, whether it is safe to eat
fish. As unwelcome as these judgments and uncertainties may be, they pale in
comparison to what happens when those in the government decide to wield their
power as state actors to monitor and punish a woman for her actions during

The Confirmation Hearings as an Opportunity to Affirm
Women’s Rights

We know we can expect members of the Judiciary Committee to
ask questions about Roe v. Wade and
abortion rights in the confirmation hearings, and they should – Judge Sotomayor
does not have much of a record on these vital issues.

We also hope the Committee will ask Judge Sotomayor whether
she believes there is a point in pregnancy at which women lose their civil
rights, and if so, on what basis they lose them. This question is important,
because the actions of judges, prosecutors, and other state actors who would
deprive pregnant women of their rights rest on the assumption that pregnant
women are no longer persons. They rest on the assumption that when women become
pregnant, they somehow fall out of the category of "person" and into another category,
more reminiscent of the 19th century, where they can be erased
from the protections of the constitution. For example, when a judge sided with
hospital administrators who wanted to surgically remove Angela
‘s fetus at 26 weeks of pregnancy because she was dying of cancer,
those parties treated Carder literally as if she were no more than a vessel for
the fetus, not as a person with her own aspirations for her future child, who
maintained her rights to informed consent and bodily integrity.

when police, prosecutors, and judges seek to jail women for using drugs when
they are pregnant, they are deciding that the normal rules don’t apply – while
they would rarely if ever arrest a man and charge him with drug possession on
the basis of a positive drug test, they do arrest women on that basis, because
in their eyes, being pregnant means that women have forfeited their rights to
equal treatment and due process of law.

The Court’s decision in Roe
v. Wade
is not perfect. Feminists, as well as those who believe that
abortion should be illegal, have found fault with the decision; for instance,
feminists have critiqued the way that the Roe
decision relies on constitutional notions of privacy instead of equality. Yet
the meaning and significance of Roe
has been unmistakable: for 36 years, it has broadcast the message that women
have the right to make decisions about their bodies and their lives.

In practice, women cannot carry out their decisions without
access to reproductive health care, including safe abortion. Medical
professionals who provide abortion care are facing renewed risks of harassment
and violence. Dr. Tiller lost his life because of his commitment to ensuring
that women could control theirs. The Judiciary Committee, the entire Congress,
the Obama Administration, and the courts need to do more to protect the rights
and safety of women and medical providers.


  • Timeline
    of Supreme Court decisions on contraception and abortion
  • Stories of
    women who have had abortions, and
    of physicians who provide abortions
  • Information
    and analysis
    of women’s status and the politics of fetal rights

News Human Rights

Feds Prep for Second Mass Deportation of Asylum Seekers in Three Months

Tina Vasquez

Those asylum seekers include Mahbubur Rahman, the leader of #FreedomGiving, the nationwide hunger strike that spanned nine detention centers last year and ended when an Alabama judge ordered one of the hunger strikers to be force fed.

The Department of Homeland Security (DHS), for the second time in three months, will conduct a mass deportation of at least four dozen South Asian asylum seekers.

Those asylum seekers include Mahbubur Rahman, the leader of #FreedomGiving, the nationwide hunger strike that spanned nine detention centers last year and ended when an Alabama judge ordered one of the hunger strikers to be force-fed.

Rahman’s case is moving quickly. The asylum seeker had an emergency stay pending with the immigration appeals court, but on Monday morning, Fahd Ahmed, executive director of Desis Rising Up and Moving (DRUM), a New York-based organization of youth and low-wage South Asian immigrant workers, told Rewire that an Immigration and Customs Enforcement (ICE) officer called Rahman’s attorney saying Rahman would be deported within 48 hours. As of 4 p.m. Monday, Rahman’s attorney told Ahmed that Rahman was on a plane to be deported.

As of Monday afternoon, Rahman’s emergency stay was granted while his appeal was still pending, which meant he wouldn’t be deported until the appeal decision. Ahmed told Rewire earlier Monday that an appeal decision could come at any moment, and concerns about the process, and Rahman’s case, remain.

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An online petition was created in hopes of saving Rahman from deportation.

ICE has yet to confirm that a mass deportation of South Asian asylum seekers is set to take place this week. Katherine Weathers, a visitor volunteer with the Etowah Visitation Project, an organization that enables community members to visit with men in detention at the Etowah County Detention Center in Gadsden, Alabama, told Rewire that last week eight South Asian men were moved from Etowah to Louisiana, the same transfer route made in April when 85 mostly Muslim South Asian asylum seekers were deported.

One of the men in detention told Weathers that an ICE officer said to him a “mass deportation was being arranged.” The South Asian asylum seeker who contacted Weathers lived in the United States for more than 20 years before being detained. He said he would call her Monday morning if he wasn’t transferred out of Etowah for deportation. He never called.

In the weeks following the mass deportation in April, it was alleged by the deported South Asian migrants that ICE forcefully placed them in “body bags” and that officers shocked them with Tasers. DRUM has been in touch with some of the Bangladeshis who were deported. Ahmed said many returned to Bangladesh, but there were others who remain in hiding.

“There are a few of them [who were deported] who despite being in Bangladesh for three months, have not returned to their homes because their homes keep getting visited by police or intelligence,” Ahmed said.

The Bangladeshi men escaped to the United States because of their affiliations and activities with the Bangladesh Nationalist Party (BNP), the opposition party in Bangladesh, as Rewire reported in April. Being affiliated with this party, advocates said, has made them targets of the Bangladesh Awami League, the country’s governing party.

DHS last year adopted the position that BNP, the second largest political party in Bangladesh, is an “undesignated ‘Tier III’ terrorist organization” and that members of the BNP are ineligible for asylum or withholding of removal due to alleged engagement in terrorist activities. It is unclear how many of the estimated four dozen men who will be deported this week are from Bangladesh.

Ahmed said that mass deportations of a particular group are not unusual. When there are many migrants from the same country who are going to be deported, DHS arranges large charter flights. However, South Asian asylum seekers appear to be targeted in a different way. After two years in detention, the four dozen men set to be deported have been denied due process for their asylum requests, according to Ahmed.

“South Asians are coming here and being locked in detention for indefinite periods and the ability for anybody, but especially smaller communities, to win their asylum cases while inside detention is nearly impossible,” Ahmed told Rewire. “South Asians also continue to get the highest bond amounts, from $20,000 to $50,000. All of this prevents them from being able to properly present their asylum cases. The fact that those who have been deported back to Bangladesh are still afraid to go back to their homes proves that they were in the United States because they feared for their safety. They don’t get a chance to properly file their cases while in detention.”

Winning an asylum claim while in detention is rare. Access to legal counsel is limited inside detention centers, which are often in remote, rural areas.

As the Tahirih Justice Center reported, attorneys face “enormous hurdles in representing their clients, such as difficulty communicating regularly, prohibitions on meeting with and accompanying clients to appointments with immigration officials, restrictions on the use of office equipment in client meetings, and other difficulties would not exist if refugees were free to attend meetings in attorneys’ offices.”

“I worry about the situation they’re returning to and how they fear for their lives,” Ahmed said. “They’ve been identified by the government they were trying to escape and because of their participation in the hunger strike, they are believed to have dishonored their country. These men fear for their lives.”

Roundups Law and Policy

Gavel Drop: Republicans Can’t Help But Play Politics With the Judiciary

Jessica Mason Pieklo & Imani Gandy

Republicans have a good grip on the courts and are fighting hard to keep it that way.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

Linda Greenhouse has another don’t-miss column in the New York Times on how the GOP outsourced the judicial nomination process to the National Rifle Association.

Meanwhile, Dahlia Lithwick has this smart piece on how we know the U.S. Supreme Court is the biggest election issue this year: The Republicans refuse to talk about it.

The American Academy of Pediatrics is urging doctors to fill in the blanks left by “abstinence-centric” sex education and talk to their young patients about issues including sexual consent and gender identity.

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Good news from Alaska, where the state’s supreme court struck down its parental notification law.

Bad news from Virginia, though, where the supreme court struck down Democratic Gov. Terry McAuliffe’s executive order restoring voting rights to more than 200,000 felons.

Wisconsin Gov. Scott Walker (R) will leave behind one of the most politicized state supreme courts in modern history.

Turns out all those health gadgets and apps leave their users vulnerable to inadvertently disclosing private health data.

Julie Rovner breaks down the strategies anti-choice advocates are considering after their Supreme Court loss in Whole Woman’s Health v. Hellerstedt.   

Finally, Becca Andrews at Mother Jones writes that Texas intends to keep passing abortion restrictions based on junk science, despite its loss in Whole Woman’s Health.