Fetal Attraction

Last August, a nurse practitioner in Brooklyn diagnosed me with acute colitis, likely caused by a ground turkey spaghetti Bolognese. The colitis caused me immense pain that kept me up at night. Vomiting, tired, and dehydrated, I missed work. Thankfully, the nurse practitioner prescribed me a strong antibiotic called ciprofloxacin. One of the side effects of ciprofloxacin, unbeknownst to me at the time, is pregnancy loss. I filled my ciprofloxacin prescription at my local Duane Reade without incident. The cipro worked; I returned to work the following week, my symptoms abated. I enjoyed my best friend’s birthday celebration in Cape May one week after my colon waged a war against me.

That same month, Tara Rule, a woman in upstate New York, was denied medication that helps her manage her chronic and paralyzing cluster headaches. Rule tearfully explained, via TikTok, that a neurologist would not prescribe her the medication because she was of childbearing age and the medicine could cause birth defects. Both Rule and I needed medicines that could lead to adverse pregnancy outcomes. Unlike me, Rule was barred from hers.

The reversal of Roe v. Wade exposed how the state weaponizes pregnancy against women and trans people in order to subordinate them. As of this writing, fifteen states have banned abortion, forcing abortion seekers to travel long distances. Compared to the months immediately preceding the Dobbs decision, there were 32,260 fewer abortions in July to December 2022; that is over 32,000 people who could not exercise reproductive autonomy and control their futures. Doctors, concerned about liability or the risk of lawsuits triggered by their states’ abortion bans, have denied or delayed necessary abortion care for people of childbearing capacity.

Professor Grace Howard uses the term pregnancy exceptionalism to qualify these denials of care and explain their prevalence. Through prosecuting pregnant people for drug use, involuntary commitment laws like Wisconsin’s Unborn Child Protection Act of 1997, forced medical interventions, meaning that the state can control, surveil, and regulate pregnant people. Second-class citizenship is and has always been the price of procreation in our country: in the eyes of politicians, clergy, health care providers, and the courts, pregnancy is a power grab. Yet the state’s interest in regulating pregnancy creeps in prior and post these nine months—sometimes, before a person is even pregnant. Pre-pregnancy exceptionalism is the reason a neurologist refused to provide Rule with her medicine. Pre-pregnancy exceptionalism is a regime where private and public actors inhibit or override a person’s control of their bodies, decisions, and health because that person could become pregnant. As feminist writer Moira Donegan has explained, pre-pregnancy exceptionalism “frequently demands that women’s own ambitions, comforts, desires and, yes, health, be put aside to make them better suited to serve and support those around them.”

Women and trans and nonbinary people have always resisted compulsory motherhood through managing their reproduction and organizing against policies and people that tried to override their will. Despite their fight, our society will not remove from our collective psyche the expectation that all women will become mothers. Feminist essayist Adrienne Rich aptly diagnosed this societal plight nearly fifty years ago:

Yet there has always been, and there remains, intense fear of the suggestion that women shall have the final say as to how our bodies are to be used. It is as if the suffering of the mother, the primary identification of women as the mother—were so necessary to the emotional grounding of human society that the mitigation, or removal, of that suffering, that identification, must be fought at every level.

Pre-pregnancy exceptionalism persists because society believes that women are so selfless, so in love with our hypothetical or future babies that we will suffer in pain now, lest we harm them in some speculative future. It is still a revolutionary notion that, as autonomous human beings, cis women, trans men, and assigned-female-at-birth nonbinary people should manage their own reproductive risks.

Some instances of pre-pregnancy exceptionalism border on farce. During the Obama administration, the CDC released a report advising sexually active women between the ages of fifteen to forty-four who were not using contraceptives to refrain from consuming alcohol lest they risk an “alcohol-exposed pregnancy.” Feminist commentators at the time pointed out the ludicrousness of this suggestion. Sarah Mirk from BitchMedia argued that the CDC guidelines treated women as “pre-pregnant.”

We may laugh, but the harms of pre-pregnancy exceptionalism are not universal, and the theme of control recurs across the spectrum. In 2003, a junior high school in New York City suspended female students who had attended an off-campus party and forced them to take pregnancy, STD, and HIV tests before returning to school. Nearly a decade later, the ACLU and its Louisiana affiliate issued a letter informing Delhi Charter School in Louisiana that their student pregnancy policy violated Title IX and the Fourteenth Amendment. Under the policy, female students who “could be pregnant” had to take a pregnancy test. If they refused or the test was positive, the school would force them to attend home school. (After the ACLU sent their letter, Delhi Charter School promptly rescinded the policy.) Doctors routinely refuse to perform tubal ligations on women because of their nulliparity, which, in a country with patchwork abortion access and contraceptive deserts, constrains our ability to control our reproductive lives.

Since Roe’s overturning and the implementation of state abortion bans, medications that have pregnancy loss as a side effect have been on the chopping block. Last September, a fourteen-year-old girl in Arizona with rheumatoid arthritis and osteoporosis was denied methotrexate, a medication that could induce pregnancy loss because of the state’s abortion ban. (Arizona judges blocked the state’s pre-Roe abortion ban on last October.) Chronically ill people have been unable to access methotrexate, even in states where abortion access is protected. This scrutiny is especially troubling for misoprostol, which is used to treat stomach ulcers and can be used to terminate a pregnancy along with mifepristone. Anti-abortion advocates filed a baseless lawsuit in November 2022 challenging the FDA’s approval of mifepristone twenty-three years ago in an attempt to get mifepristone off the market. In April, conservative federal judge Matthew Kacsmaryk ruled that the FDA’s approval of mifepristone was unlawful. Fortunately, Judge Kacsmaryk’s decision was provisional: the lawsuit bounced around the federal judiciary in the subsequent weeks and mifepristone is still, for the time being, available.

In August, a Fifth Circuit court in Louisiana ruled that mifepristone should not be prescribed after seven weeks of pregnancy; the Supreme Court has issued a stay, meaning that the availability of the drug won’t change as they decide whether to hear the case. But if the Court ultimately sides with the plaintiffs and rules that the FDA revoke their approval of mifepristone (and the FDA complies), pregnant people will be limited to misoprostol, multiple uses of which will complicate access for people looking to use it for non-abortive gynecological reasons—and even these uses have been chilled post-Dobbs. Immediately after the fall of Roe, a pharmacist in Louisiana refused to fill a doctor’s prescription for misoprostol to aid in a patient’s IUD insertion because of the state’s abortion trigger ban. With the erosion of reproductive autonomy, the past is prologue.

Roe was a dam blocking a dangerous accelerant of pre-pregnancy exceptionalism: fetal personhood. The cracks were already showing in the ongoing criminalization of pregnancy, but now the waters are upon us. If fetuses are granted the same rights as living human beings under the Fourteenth Amendment, the state will almost certainly move to forcibly subordinate women and others who can become pregnant. Dana Sussman, the acting executive director of Pregnancy Justice, spoke to me about the introduction of the Unborn Child Support Act in 2022: “When you elevate fetuses under state or federal law, you automatically diminish the rights of the pregnant person. You cannot elevate and add to this community of people recognized under the law without subverting the rights of the person carrying them.”

Taken to its logical conclusion, pre-pregnancy exceptionalism results in a loss of liberty as non-pregnant women are jailed outright. In February 2022, prosecutors in Alabama charged Stacey Freeman with chemical endangerment of a child for allegedly using drugs while pregnant—however, she wasn’t pregnant. Freeman spent three days in jail before she was released after taking a pregnancy test. If the Supreme Court or federal legislation ever formally establishes fetal personhood, there will be many more Stacey Freemans.

Perhaps in a future Republican administration, the CDC will transform their 2016 guidelines into a regulation prohibiting people with reproductive capacity from purchasing alcohol unless they present a negative pregnancy test. It’s not outlandish to think so. While Roe was nominally good law in March 2022, a lawmaker in Alabama—an ob-gyn, no less—introduced a bill that would prohibit women of childbearing age from accessing medical marijuana unless they provided a negative pregnancy test. The encroachment of bodily autonomy that we will encounter if/when fetal personhood is established is untold. But it will be severe.

Even though I wasn’t denied my medicine during my trip to urgent care, I was still required to give a urine analysis to verify that I wasn’t pregnant. If my pregnancy test had falsely come back positive, would they have taken my word that I was not pregnant? Or would they have withheld my antibiotics from me? Would they have elevated a hypothetical fetus over my palpable suffering? I would like to have a child one day. But I do not want to suffer today because I might pursue pregnancy in the distant tomorrow. Nobody wants that. What unites people with reproductive capacity is how we must use our pain as evidence of our personhood. And even then, they don’t believe us.