‘Personhood’ Film Shows the Cost of the Push for Fetal Rights

The documentary exposes the threat of "personhood" laws that police pregnant people and strip them of their rights.

[Photo: The cover illustration for Personhood.]
The film follows Tamara “Tammy” Loertscher after her incarceration as she rebuilds her life and fights to overturn Wisconsin’s Unborn Child Protection Act, also known as the “cocaine mom” law. Courtesy of Personhood Documentary

Premiering this week, Personhood is the latest film highlighting the state of reproductive rights in the United States and how efforts to undermine the constitutional right to abortion cause unnecessary harm. In addition to exposing how fetal “personhood”—or the anti-abortion idea of legal protection for fetuses—immediately threatens the lives and well-being of pregnant people, the documentary film covers important issues concerning what the future could hold if state and federal policy continues in this trajectory. Personhood serves as a reminder that more organizing and political activism are needed to meet the challenges ahead.

Produced by Rosalie Miller and directed by Jo Ardinger, the documentary film follows Tamara “Tammy” Loertscher after her incarceration as she rebuilds her life and fights to overturn Wisconsin’s Unborn Child Protection Act, also known as the “cocaine mom” law. The law allows state officials to detain, imprison, and institutionalize pregnant people against their will due to current or past alcohol and substance use under the concept of fetal “personhood.”

As Rewire.News has reported, “‘personhood’ laws seek to classify fertilized eggs, zygotes, embryos, and fetuses as ‘persons,’ and to grant them full legal protection under the U.S. Constitution, including the right to life from the moment of conception.” Wisconsin is one of at least 38 states that grant some form of “personhood” to fertilized eggs, embryos, and fetuses—most states do so through fetal homicide laws—and is the result of the anti-choice movement’s decades-long effort to pit the rights of pregnant people against the alleged rights of fetuses.

Ardinger first had the idea for the film, her directorial debut, in 2011 after watching a Rachel Maddow segment on the Mississippi “personhood” amendment, which would have defined life as beginning at the moment of fertilization. “We’d been watching the avalanche of these incremental restrictions, but what took me aback about Mississippi was the complete ban and all the other implications,” Ardinger told Rewire.News in a phone interview. “As I went deeper into the research, my question turned away from ‘what if we become El Salvador?’ where they prosecute people for miscarriages, because I learned that we were already doing that. This is [about] so much more than abortion access.”

Ardinger had not heard much about the concept of “personhood” or seen it in other films, and no one she spoke with knew about it, so she decided to make a film of her own to help expand the national conversation. Ardinger met Loertscher through the National Advocates for Pregnant Women (NAPW), a nonprofit organization working to secure human and civil rights for pregnant and parenting people.

As the film documents, Loertscher struggled with thyroid issues and couldn’t afford her medication after losing her job and health insurance. Eventually, she started self-medicating her thyroid-related depression and fatigue with methamphetamine and marijuana. Upon finding out she was pregnant, she stopped using these substances and immediately sought medical care to ensure the health of her fetus. She shared her drug use with members of her care team so they could provide appropriate treatment. Instead, she was detained in the hospital after someone there reported her. Under the law, her fetus was put into protective custody, assigned a guardian, and given a lawyer. Loertscher, on the other hand, was denied legal counsel when she asked for it and subsequently refused to participate in the proceedings, which went on without her.

The state-assigned guardian to her fetus didn’t object to Loertscher being placed in jail, where she experienced conditions that are not conducive to a healthy pregnancy. She went without access to prenatal care, says she was abused by jail staff, and was eventually put in solitary confinement. After several weeks, she was released on the condition that she submit to weekly drug testing for the duration of her pregnancy.

Loertscher’s story isn’t unique. In Wisconsin alone, more than 4,000 women have been affected by the Unborn Child Protection Act, as the film notes. Loertscher was just one of few of the legislation’s victims who fought back.

Across the United States, pregnant people who experience miscarriage or stillbirth, who choose to give birth at home, who seek abortion, or who are exposed to interpersonal violence are criminalized. Those most targeted for criminalization include low-income women and women of color. A study from NAPW published in 2013 found that 71 percent of targets for arrest, detention, and forced interventions are low-income women and 59 percent are women of color.

“I became a filmmaker to tell stories like Tammy’s,” Ardinger said. “These stories get buried. For every one story that makes the headlines, it’s just the tip of the iceberg.”

“Tammy represents so many women who are going through this,” Ardinger added.

The cost of fetal “personhood”

Beyond sharing Loertscher’s story as an example of experiences happening around the country, the film highlights the growing threat of laws seeking to personify fertilized eggs, embryos, and fetuses. In particular, these laws have the potential to erase human rights for entire groups of people, to deter people from seeking health care by interfering in the patient-provider relationship, and to push the United States further along the slippery slope of eugenics.

In the film, NAPW founder and executive director Lynn Paltrow says, “There is no way to add fertilized eggs, embryos, and fetuses to the Constitution without subtracting pregnant women.” But the “personhood” movement is working to do just that. Since the Roe v. Wade decision in 1973, the political right has been working to establish fetuses as constitutional persons under the law. In the Roe v. Wade decision, U.S. Supreme Court Justice Harry Blackmun suggested that a fetus could be protected under the 14th Amendment if its “personhood” was established. Lawmakers introduced the first “personhood” legislation in Maryland only a week later.

The courts have issued mixed rulings on the issue. In early 2017, a federal district court ruled Wisconsin’s Unborn Child Protection Act unconstitutional. But in July of the same year, the nation’s highest court issued an order allowing the law to remain in effect while the state appealed the ruling. Later, a federal appellate court, ruling on technical grounds, held that Loertscher no longer had standing to defend the law because she had moved out of state, thus the district court’s decision was vacated.

As a result, pregnant people in Wisconsin are still subject to a law that “gives the state police power over pregnant women without any protections others would have under similar circumstances,” explained Paltrow.

The cost of “personhood” for fetuses is the human rights of pregnant people. As witnessed in Loertscher’s case, legal proceedings could go on without regard to the actual pregnant person, as if they simply do not exist. This ideology is best captured in comments from Florida lawmaker José Oliva, who referred to pregnant women as “host bodies” and fetuses as “lives” in a TV interview earlier this year.

“If you recognize fetuses or the ‘unborn from the moment of conception’ as separate, you subtract women,” Paltrow told Rewire.News in a phone interview. “If [the ‘personhood’ movement] succeeds, the people who get pregnant are going to lose their fundamental rights … to privacy, to equality, to due process of law.”

“If the state can protect fertilized eggs, the moment a woman becomes pregnant and poses a risk, she could be locked up,” Paltrow added.

Another concern raised in Personhood is that of eugenics. There is a long history in the United States of limiting the reproduction of certain groups of people through forced sterilization and forced or coerced contraception. In the film, Arthur Caplan, a professor of Bioethics at New York University School of Medicine, asserts that legally permitting fetal “personhood” could have long-term implications for eugenics in the United States.

Speaking by phone with Rewire.News, Caplan explained that the “personhood” movement could pave the way for a shift away from an ideology in which certain groups are eliminated to one with a focus on making the “best” babies—both of which would be a form of eugenics. “In the past we had eugenics programs brought about by certain government officials or doctors themselves who took it upon themselves to sterilize. In the future you could have much more systemic national programs. They could treat [embryos] like little people, like little patients,” Caplan said.

According to Caplan, the scientific community could do more to challenge rhetoric equating embryos to people. “They know that many embryos don’t go on to become fetuses much less babies,” he said. But researchers “are afraid to lose their funding, so they have tended to run away from it.”

Laws criminalizing pregnant people for substance use also have the effect of deterring them from seeking care and disrupting the trust between patients and providers. If someone can be detained or imprisoned because their care providers or anyone in a hospital or health-care facility can report them, it follows that they might be more hesitant to share information they believe could get them in trouble at a time when what they really need is help.

“When Tammy got pregnant, she went to the doctor, and she did all the right things to get help,” Ardinger said. “Tammy was working to ensure the health of her fetus, and what they did was put her in a dangerous situation. They’re discouraging people from getting help.”

Advocates say there is evidence supporting this. For example, Tennessee’s expired law that allowed people to be charged with assault if they had pregnancy complications after using illegal drugs is seen as having discouraged people from seeking care. Cherisse Scott, founder and CEO of the Tennessee-based reproductive justice organization SisterReach, discusses it in Personhood. “This law put a wedge between doctors and mothers,” Scott said. The law “basically turned their doctor into a warden … into a probation officer … into the police. So, [pregnant people] didn’t want to go to the doctor anymore,” Scott added.

Pregnant people using substances or experiencing other health-care challenges must be met with compassion, not punishment. Scott continued, “SisterReach was involved in this work to shed light on the other things in people’s lives that may lead to them using drugs in the first place. And to shed light on the fact that there were not enough facilities to even service women.”

So, where do we go from here? Scott said in the film we now have an opportunity to shift how people think about pregnant people, including low-income people and those who use substances.

At the end of the film, viewers are encouraged to vote against fetal “personhood.” The anti-choice movement has been very coordinated at filling political seats with people who will advance their agenda to strip women, queer folks, people of color, and low-income families of their human rights to reproductive autonomy and health care. Keeping them out of office and defeating anti-choice legislation by voting is important. But tackling these threats also requires those who believe in justice, in reproductive autonomy, and in human rights to do more than vote. It also requires pro-choice, justice-oriented progressive candidates to run for office.

There’s support for people who are interested in running. EMILY’s List provides training and support to elect pro-choice candidates, and groups like NARAL Pro-Choice America endorse candidates who prioritize access to abortion and reproductive health care.

Personhood premieres at the DOC NYC Film Festival on November 8 and 14, 2019. The film is out on iTunes and Amazon Video on January 19, 2021.  

CORRECTION: This piece has been updated to correct the details around the 2017 court decisions that left Wisconsin’s law in place.