Nile's Endgame? The Push For Foetal Rights


When Chrissie Swan admitted to failing to completely quit smoking while pregnant with her third child, she found herself in the social media pillory. Under new legislation currently being proposed by NSW MLC Fred Nile, Swan would be liable for far more than online vitriol.

The "Zoe’s Law" Crimes Amendment Bill, which seeks to "establish a separate offence for conduct causing serious harm to, or destruction of a child in utero" could see Australian women like Swan guilty of a range of criminal offences.

While I am always loathe to give someone like Nile airtime, in a political climate where we have the former president of the New South Wales Right to Life Association, Greg Smith, serving as the current Attorney-General and Minister for Justice, the threat this amendment poses to women’s civil and human rights needs to be addressed.

The legal reach of the "in utero" definition Nile is proposing potentially extends as far as birth control and IVF procedures. This may be Nile’s endgame after all.

What is particularly insidious about his proposal is that it is being done not in the name of children, but of women. Nile bases his argument for the necessity of attributing personhood status to the foetus on a number of cases where the violent acts of a third party (including domestic violence and drivers under the influence) against a pregnant woman have resulted in the death of the child.

While there is no doubt that the losses suffered by every woman mentioned in Nile’s bill are awful and unimaginably tragic, the application of this law to "all stages of pregnancy" poses implications for the rights of pregnant women themselves that are deeply concerning.

Indeed, this question of who Zoe’s Law would serve becomes less clear as we see that the women on whose behalf it is raised object to its terms: as the Sydney Morning Herald reported, Brodie Donegan (Zoe’s mother) was not consulted by Nile, and is "quite shocked by what Fred Nile has proposed".

Although Zoe’s law is nominally not anti-abortion legislation, its impact would be devastating for women’s rights in a state where abortion is still criminal. As this recent Australian study shows, NSW doctors who provide abortions are already operating under a very real fear of prosecution, and essentially have to build a case for the pregnant woman’s mental illness in order to avoid criminal charges.

The bill goes further than threatening abortion access. It can see woman labelled as criminal for engaging in a whole range of activities, many of which are very low-risk, while pregnant.

Of course it’s important that medical practitioners offer their professional advice about what a woman can do to ensure her baby is as healthy as possible. But suggesting what is best for pregnant women to do is very different from saying what they must do. What happens when medical advice becomes proscriptive?

Eating oysters, taking anti-depressants, playing sport and ignoring bed rest orders because you can’t afford to take time off work don’t sound like criminal activities. Under this proposed legislation that’s exactly what they could be.

Forty years on since Roe v Wade, foetal legislation such as Zoe’s Law has seen the gradual attrition of women’s rights in the US and Canada. Foetal homicide laws have been introduced in at least 38 American states, and while these laws appear designed to protect pregnant women from violent attacks by third parties, they are increasingly used as the basis for prosecuting, arresting and incarcerating women — and forcing them submit to medical interventions.

What Nile’s bill shares with the US legislation is the creation of a separate legal status for the foetus. It’s no secret that foetal homicide laws are considered a major win by anti-choice advocates. As Troy Newman, president of the anti-abortion group Operation Rescue told The New York Times last year, "we win every time we establish the precedent that the unborn child in the womb is a unique human individual".

The implications of foetal "personhood" status are underscored by a recent study which reports at least 413 cases from 1973 to 2005 in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of physical liberty.

Many of these cases of arrest and imprisonment occurred after the women, like Chrissie Swan, admit and voluntarily seek treatment for a substance abuse issue.

Twenty-year-old Rachael Lowe, for example, was turned over to state authorities by hospital staff at an institution where she voluntarily admitting herself for treatment for an addiction to Oxycontin. In what sounds like a plotline from American Horror Story, Lowe was taken and held against her will in a psychiatric ward where she was given no prenatal care.

The medieval treatment of this woman was sanctioned by Wisconsin’s "cocaine mum" law, a statute of Wisconsin’s Children’s Code, which permits the state to take a pregnant woman into custody if she "habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs". Even after her release, when it was proven in court that Lowe’s drug use presented no serious risk to her pregnancy, she remained under state supervision throughout her pregnancy.

Laura Pemberton was forced to undergo a court-ordered c-section when Florida doctors believed she was endangering her foetus by attempting to have a vaginal birth. After doctors obtained a court order, she was taken against her will in an ambulance to a hospital, her legs strapped together. Her account of this total invasion of her home, rights and body, reads like a description of a nightmare.

If it seems bad when the life of the foetus is in question, instances of stillbirth have seen women imprisoned for decades. When she lost her baby in a stillbirth at 36 weeks in 2006, 16-year-old Rennie Gibbs was charged with the murder of her unborn child. Despite no evidence to suggest a connection between Gibbs’ drug use and the still-birth, the prosecution emphasised her cocaine use and she was found guilty of "depraved-heart murder", a charge that carries a mandatory life sentence.

Similarly, in South Carolina, 21-year-old Regina McKnight was arrested and charged with homicide by child abuse after she suffered a stillbirth. It was alleged by the state that the stillbirth was caused by McKnight’s cocaine use and she was sentenced to 12 years in prison. When it was finally proven that the stillbirth was caused by an infection, McKnight had already served eight years of her sentence.

The routine violation of the basic rights of women such as Lowe, Pemberton, Gibbs and McKnight show exactly how laws designed to protect women from violence done by a third party pave the way for violence done at the hands of the state. A further danger of this legislation is the way that the threat of punitive responses discourages women from seeking or continuing medical care.

We need to keep these consequences firmly in mind when faced with the power of foetus rights rhetoric. A key strategy of the anti-choice camp is to position any defence of women’s’ basic human rights as anti-child — this was the invisible bedrock of the public circus around Swan’s recent mea culpa, too.

It’s worth nothing that these claims are not so much about real children, but about the idea of the child as the figure of the future — in this rhetoric the child stands as nothing short of the promise and of the continuation of society itself. The danger of this symbolism is how it is so easily wielded to punish, police and otherwise control women’s bodies and lives.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.