Legislating Women's Bodies

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- Welcome to the Let's Talk CJ podcast. I am your host, Dr. Pat Nelson, a member of the Department of Criminal Justice at Minnesota State University, Mankato. Thank you for joining us as we explore different topics about criminal justice and also profile current and retired professionals from the criminal justice system. We hope you learn some new things about these topics and amazing people, so please enjoy.

Today, we are talking with Dr. Laura Harrison, who is the chair of the Department of History and Gender Studies at Minnesota State University, Mankato. Dr. Harrison received her doctorate in gender studies from Indiana University. Her most recent book project, Losing Sleep-- Risk, Responsibility, and Infant Sleep Safety, takes on socially constructed beliefs about infant safety, including how medicine, law, and policy reward some parents while punishing others.

Her first book, Brown Babies-- sorry, let's try that again-- Brown Bodies, White Babies, the Politics of Cross-Racial Surrogacy, examines the implications of surrogacy arrangements for contemporary understandings of race, kinship, and gender.

She works on subjects ranging from reproductive justice, surrogacy, representations of motherhood, race, and public health, and gender and feminist backlash, appears in journals, including Signs, Frontiers, Feminist Formations, Genders, Feminist Media Studies, and Women's Studies International. She also serves on the advisory board for the Minnesota State Mankato Scholars Serving Time Program. Thank you for joining us today, Dr. Harrison, to talk about legislating women's bodies.

- Thanks for having me. - So I know I just said legislating women's bodies. It's a large concept. Could you give us an overview before we start talking about specific examples?

- Sure. So when we talk about legislating women's bodies, we're thinking about ways that women are policed, criminalized, or targeted for issues that may be reproductive, particularly issues that relate to pregnancy, to childbearing, and the way that the law focuses on controlling or limiting women's reproductive autonomy. - So I know many of our listeners have heard of the women's suffrage movement to get the right to vote. But we're moving way past that.

We're talking about specifically things that women physically are penalized for or maybe judged for. So maybe let's jump into the most controversial and the biggest case in the last year, talking about Dobbs versus Jackson Women's Health Organization, which addressed Roe versus Wade. So can you give us an overview in how that impacts women? - Right.

So in 1973, the Roe versus Wade gave women a constitutionally protected right to abortion in the United States, which was later divided by trimester in terms of when the state can intervene on that right to abortion. And the Dobbs v. Jackson decision overturned Roe v. Wade, which meant that the right to abortion went back to the States to decide whether or not women would have access to abortion rights.

And that is a perfect example of legislating women's bodies because the state then has the right to determine whether women have access to what is often considered just general health care in terms of their access to an abortion. - Right. And I think it's important to note-- and you'll probably agree with me-- abortion is a medical procedure. And there's many ways that it could happen. And there's many reasons why it could happen.

And before Roe versus Wade, it was up to each state to identify that in legislation, if they decided to. But Roe v. Wade gave the national protection for that, but they took that National protection away. - Exactly. And I think that it is important for us to understand that that does not mean that all women don't have the right to an abortion at this time. In the state of Minnesota, for example, we've actually expanded women's access to abortion since the Dobbs v. Jackson decision.

So it really depends on what state you live in. But what researchers find is that the factor that impacts women's ability to access abortion the most is their economic status. So low-income women and women of color, prior to the overturn of Roe and today, have the most limited access to that health care because of things like transportation barriers to a clinic, especially now, if a clinic is not available in your state, childcare issues, and, of course, cost.

- Well, and doesn't this also impact just general reproductive health care? Like, an OB-GYN may decide to not practice in a state because they're worried about the state restrictions on that. And haven't we seen some OB-GYNs actually flee states so that they don't get caught up in that? - Yeah, absolutely. There was a case in Indiana in which a young girl was raped and became pregnant as a result of a rape.

And I believe what happened is her OB did perform the abortion but was then under scrutiny for whether or not that violated the law in the state of Indiana. So it's raising really thorny issues for health care providers about whether or not they're putting themselves in legal peril by performing, again, really basic acts of health care for women and girls.

- Well, and think this is also bleeding over into things such as sexual assault victims who are asking for what's known as the morning-after pill and that kind of medication. That medication right now is in a fight in Texas courts that they think will go to the Supreme Court about access. So how does that impact our victims of sexual assault and what kind of health care they can get?

- It's a good example of how politics impact our understanding of science and medicine because technologies like the morning-after pill are not what we call abortifacients, meaning they don't cause an abortion. Intrauterine devices, IUDs, do not cause an abortion. And medicine is quite clear on this issue. But if you were to listen to political debates, for example, you might hear people say that the morning-after pill is an abortion pill.

And you really have to use your critical thinking skills to be able to think and do some research and understand what you're hearing and whether or not it's medically accurate.

- Well, and before we leave Dobbs versus Jackson Women's Health Organization, I think this is also a good example of how people thought that once the Roe versus Wade Supreme Court decision was locked in, and it set a precedent, and it actually faced quite a few challenges, that the people on the legislative side never took the step to codify in our legislation this same protection.

And now we're seeing that not only this one, but several other cases are being overturned, even though precedents are actually existing. Minnesota was a forerunner. We put it right into our state constitution. But we're seeing other states around us now scrambling. And now they're scrambling at the federal level too. So it's a good example of how you have to have both branches working. You can't just rely on one or the other.

- It's raising concerns for other human rights, like gay marriage and even interracial marriage, that are being questioned of whether or not those Supreme Court case decisions that gave us those rights could be overturned in the same way and, like you're saying, whether or not states need to ensure that we have those written into our constitution at a state level. - Actually, we're seeing one come up about people that have a domestic restraining order against them.

There's a case that's being brought to the Supreme Court about overturning a 1994 amendment that they could not have guns. So we're bringing back that gun violence scare. - Mm-hmm. - All right, so let's talk about contraception. I'm sure most people don't realize it took a Supreme Court case to ensure that a married woman could get contraception. Can you speak to that at all?

- Yeah. So there were two important Supreme Court cases, Griswold v. Connecticut and Eisenstadt v. Baird, that decided when married people could access contraception and when single people could access contraception. And those were relatively recently. And I think, again, contraception, we assume, is somewhat settled in that access to contraception is a basic component of bodily autonomy, meaning your right to control your body.

But we shouldn't feel so sure about that because the intent to limit access to contraception is closely linked to limiting abortion. And both of those, again, are-- they come from a desire to control and limit bodily autonomy. - And I know we are talking about Supreme Court cases. And those that work in the criminal justice system might be thinking, well, that's nothing to do with me.

But before 1965, you could have been called to a doctor's office to arrest a woman who was married that was requesting contraception. I mean, technically, it was against the law. So it's something to think about. - Totally. - So let's move away from the Supreme Court and talk about how we criminalize women's bodies in different ways. Should we start with pregnancy and how that happens?

- Yeah. So I was just reviewing a really important article by-- Paltrow and Flavin are the authors-- that looked at cases between-- they looked from 1973 to 2005. And they found 400 cases, which is surely an undercount, but 400 cases of women who had been targeted for arrest, detention, or forced intervention because of their pregnancy.

And some of the main themes that they found of what women were being arrested for or have these forced interventions were things like women who had miscarriages that were then investigated as potential crimes-- and we've only seen an increase in this in recent years-- women who were wanting to deliver their babies naturally vaginally and instead were forced to have C-sections.

They found women who were arrested for using drugs while pregnant, even cases where women were arrested for using drugs while pregnant and then charges were dropped if they had an abortion, which is creating a lot of coercive pressure on women not to continue their pregnancies, especially women who have other children and fear what could happen with their families if they're arrested or if they're imprisoned. Could definitely feel coerced not to continue those pregnancies if they're drug users.

It also really creates barriers to women seeking help for drug addiction while pregnant if they fear that they will be detained or have their other children removed from their custody - Did that article talk at all about punishments for those that were arrested? Did they end up getting sent to prison? Did it talk to anything about that? - Yeah. There's a wide array of punishments. Women were charged with things like child abuse.

I think it's really fascinating if you look at cases of women who are charged with child abuse while they're pregnant, because what ends up happening is, often, laws that were not created for this specific intention are utilized in unexpected ways. For example, women who test positive for drugs when they're pregnant will be charged with child abuse for the period of time before the cord is cut. So after the child has come out of the womb, but the umbilical cord is still connected.

They'll be charged with, like, delivering drugs to a minor. - Oh my gosh. Wow. - Mm-hmm. Another example of that, the kind of laws that are used in unexpected ways, some of us may remember the Laci Peterson case. She was a woman who was murdered by her husband when she was about to deliver, nine months pregnant or something.

And after that case, there were laws put in place that would punish someone further if they killed a pregnant woman, the idea being that there are two, quote, unquote, "lives" being affected by that murder. So its intention was to protect pregnant women but has been used since then to charge women who have miscarriages. - Wow. Well, in Minnesota here, we have a statute for murder of an unborn child and manslaughter of an unborn child.

I had not even thought that that could be used against the woman herself. Wow. - It's so tricky because, again, if we look at it on the surface, we might say, of course, if a family's expecting a baby and something happens that causes the death of both the mother and the baby, that is a crime that's more severe in certain ways.

But what we see is it introduces this idea of personhood, viewing the fetus as a separate person from the pregnant woman that has been twisted in ways that then go after pregnant women if they're suspected of activities that could have harmed the fetus. And when I say that some people may think, oh, activities, again, like, drug use or like, I don't know, wild things that you could do that could harm your baby. But I don't mean that.

I mean falling down the stairs, riding on a boat in choppy water, going downhill skiing when you're four months pregnant. These are the kind of things that women can and have been investigated for if they have a miscarriage. And it should really concern all of us. - Oh, yeah. Absolutely. Because you're right. When you first said that, I'm like, oh, maybe drug use, maybe jumping off of buildings, things that seem really dangerous, but everyday activities, and they could get charged for that.

Wow. So along with pregnancy, what about the loss of a young child? We know SIDS is a legitimate thing that happens. But there are several-- I mean, there are several steps to the investigations. And have you seen a criminalization of the death of young children, especially towards the mother?

- Yes. So my most recent book that you mentioned, Losing Sleep, one of the chapters looked at 29 cases of parents who were charged in some way criminally-- the charges varied quite a bit-- after they had an infant who died while co-sleeping. And co-sleeping just refers to any sleep surface that's shared between an adult and an infant. So it could be sleeping in a bed with a baby. It could be sleeping on a couch or a chair with a baby, a mattress on the floor, any kind of environment.

There's a lot of evidence to suggest that co-sleeping is, in fact, not dangerous for infants if it's not done alongside other risk factors. Like, if you smoke cigarettes, you shouldn't sleep with the baby. If you're taking sleeping pills or using drugs or alcohol, you shouldn't sleep with the baby. Parents have to be really well informed about safety, right? But these are cases in which parents were charged with a death or with some sort of crime after their child died while co-sleeping.

And like you said, sudden infant death syndrome is what's diagnosed if a child under the age of one dies and there's no cause that can be found. So co-sleeping complicates this because if a child is found in an adult bed, an infant, then the argument can be made that there is a cause and that that cause could be suffocation. In fact, there is no physiological way to differentiate between sudden infant death syndrome and suffocation, which seems kind of surprising, but it's true. - Right. Right.

- So in these cases, parents were charged. And what I found was that typically, there were three themes of parents who were charged. They were charged if they had had more than one child who died as an infant. Like, if they had a previous child who died of SIDS, they were more likely to be charged, which is sort of illogical because SIDS can reoccur in siblings. We don't understand the cause of SIDS.

They're more likely to be charged if they had been previously counseled not to co-sleep with a child. This is really disturbing to me because it suggests that public health education can be used as a tool sort of weaponized against you. We would hope that all parents would receive education about how their infant should sleep safely. And then third, if those parents had a history of drug or alcohol abuse and if drug or alcohol abuse was not connected to the death of that child.

- Well, I actually saw this firsthand. And one of the calls I went on in Minneapolis was an infant that died during co-sleeping. And the mother was treated like a suspect. And I felt so bad for her because I was with the first responding officer. And I saw how devastated she was. And then I saw her go through the process. They ended up not charging her. But I mean, she spent the first two days after the death of her five-month-old being considered the suspect. And it had to be devastating.

I mean, it was a hard call to go to anyway, but that had to be devastating. - There's really interesting gendered things around that. For one thing, mothers are more likely to be the ones who are suspected in that case because mothers are the primary caregivers of infants. So the person who was last in contact with that infant is going to be the first one who's questioned as to what happened. And therefore, that's more likely to be moms.

Also, things like, when you read police reports about these cases, if their house was dirty, if they just don't have a clean home, that's always mentioned in the police report. Again, that speaks to our ideas about a good mother and good women and how they care for their homes and their families. In trial transcripts, they'll talk about piercings and tattoos that women have to sort of speak to their overall character.

So it's really interesting to see how the expectations we have about being a good mom impact how we criminalize and then even attempt to legislate those actions. - Well, and you're bringing up the definition of child neglect, which is in statute. They tell you, look at the condition of the house. How much food is in the fridge? Is there food sitting out? Well, we all have different definitions of what's a clean house. And it depends on when you've just walked in.

I mean, if it's just right after dinner, it's probably going to look like everything's out. So, oh, yeah. So before we go past women, I know we have seen women who are users of drugs, especially like fentanyl and meth and some of the more current ones, where we've seen them arrested because they've used drugs and their children are with them. But we don't see their male counterpart charged with that child abuse, even if they're both in the same car or both in the same area.

Have you seen anything about that? Is that aligning with the research? - I mean, I saw similar things with this with the parents who were arrested after co-sleeping. There was a case of a mother who wasn't even in the room. She put the baby to bed in the same bed as her partner, male partner. She went to take a bath. When she came back, the baby was unresponsive, so she called 911.

There was drug paraphernalia in the home-- again, not evidence that she had been using or her partner had been using at that time. But she was the one who was arrested and charged for child endangerment, child abuse. There's a huge range of charges with this. And there was no mention of him being charged at all. So again, I think it's that kind of social assumption we have that women are the ones who are ultimately responsible for child safety.

And it's important to say too that the factors that lead to things like unexplained child death are prematurity, birth defects. They're things that are tied to structural racism and poverty, not the bad choices of mothers. - Right. Right. So, well, let's stay in this age range.

What about-- I mean, we've seen, especially with social media, about people being confronted about breastfeeding in public and breastfeeding in areas that other people don't think are appropriate and even police being called on it. What are your thoughts on that? And how is that impacting everybody? - Yeah. I think that's really interesting, especially in Minnesota, you have a right to breastfeed in public.

But I mean, as your listeners know, having the right to do something, having the law on your side doesn't necessarily mean that if an individual confronts you or an institution that you're in confronts you, that you have any ability to enforce that right. So there are commonly cases where women will be told, you can't breastfeed here. Let me show you where the bathroom is. Ew. Ew. - Yeah. Yeah.

- As a person who has breastfed in public, the last place I would take my baby to breastfeed would be in the bath-- do you want to eat in the bathroom? - No, thank you. No. - Or do you want to eat with a blanket over your face, which is the other thing that women are often told. Cover that up, right? That's not a comfortable way for infants to eat, either.

- Well, and that even kind of speaks to what is considered indecent, is the focus on breasts being indecent, where men can walk around without shirts on, and women can't, even though there are men that have some larger breasts than women we have seen. So there is a fascination with that. - My children are obsessed with this.

They're 11 and 9. And when we see men that don't have a shirt on, they'll say, why can they walk around without their shirts on and women have to wear a bra or women have to wear a shirt? And the answer is that it's entirely a social construction, what parts of the body we deem to be sexual, and the fact that we deem women's breaths to be sexualized, even when they're serving a function of keeping an infant alive. - Right. Well, and we do know people that weaponize this.

So even though it's legal in Minnesota to breastfeed in public, it doesn't stop somebody from calling 911. And even I, as a responding officer might know it's legal. And I have to walk up. And it's still embarrassing that now the police have been called. You may not even know the police are called. And they may not even come and talk to you. But they talk to the caller, and you know why they're there. It's still an embarrassment.

And it's still using the law against you to provide that embarrassment. Yeah. - Yeah. I mean, you can tell me the answer to this, but I would imagine that if an officer is called, they probably don't have much choice but to respond, even if they know the person has not committed a crime or isn't responsible. And then, like you said, the public shaming and embarrassment results, even if the officer themselves is saying, I'm sorry this is happening. I know you're not doing anything wrong. - Right.

Right. And that's exactly it, because like I said, on that, I would respond. I'm like, this is not an issue. But I still have to talk to the caller. And then the person who was called on is going to know why the caller called because there's probably been some sort of statement or confrontation about it. And that's just going to be embarrassing, no matter what. So let's talk a little bit about forced sterilization. I know that it's not as prevalent now as it was.

But can you explain what that was and how, legally, that could happen? - Yeah, absolutely. I talked about this with my class for an hour and 40 minutes yesterday. If you're interested, take Health, Wealth, and Power.

Yeah, so the history of forced sterilization in the United States is really shocking to those who maybe aren't familiar with this, that in the United States, forced sterili-- well, when we say forced sterilization, what we're referring to is both men and women having their reproductive capacity surgically eliminated or limited without their full consent. So for men, that could look like vasectomies. For women, that could look like tubal ligations primarily.

And in the United States for many years, the state, the government actively wrote forced sterilization into the law, meaning that there were-- again, to return to the Supreme Court, there were Supreme Court cases, like that of Buck v. Bell, which said that states have the right to limit the reproductive capacity of those who are deemed unfit. That unfitness could mean that someone had a physical disability, had a developmental disability, mental health issues.

Perhaps they were a criminal, because the belief was that these traits, abstract traits that we would, today, not consider-- most of us wouldn't consider to be heritable, like intelligence or criminality, were considered to be things that would be passed down to one's children. So kids who ended up in juvenile facilities were often sterilized based on the belief that it would be better for society if they didn't have any more children.

And while those laws are no longer on the books, we still see really recent cases of forced sterilization. I would highly recommend the documentary film, Belly of the Beast. It's about forced sterilization in California prisons just a few years ago, women that were going in for-- they might have a cyst on their ovaries or other relatively minor reproductive issues and wouldn't even be told that they had been sterilized. - Wow. I will have to watch that.

- They would be told they need a full hysterectomy, which is the removal of the ovaries, the uterus, the fallopian tubes without any actual medical reason for this, but, again, based on the idea that if a woman's in prison, she must be bad. And she she's a bad mom and doesn't deserve to have any more children or have any. Some of the women had never had children at all. So unfortunately, there's reports of forced sterilizations in ICE facilities, Immigration and-- what is it?

Immigration and-- - Immigration and Customs Enforcement. - Customs Enforcement. Thank you. In ICE facilities in Georgia in 2020, 2021. - Well, and that kind of segues into the right of women to keep their children with them. We've been seeing this, especially down on the southern border, where children are being forcibly removed from their mothers. Well, kind of somewhat their fathers. But many of them come with their mothers. But that's not isolated throughout our history.

That's happened quite often, hasn't it? - Yes. And I mean, if we look at-- Native American children were historically removed from their family, again, based on the idea that it would be better for them to assimilate to white culture than to be raised in Native American cultures.

And I think what you're getting at, which is really important, is that when we think about reproductive rights, a term you might hear more today is reproductive justice because it gets at what you're indicating, which is that we can't just think about things like abortion and contraception, things that limit our ability to have children, and that we need that right, which we do. I would argue that we absolutely do.

But also, we deserve-- it's a human right to be able to have children and to raise the children we have in safe and healthy environments. So when we think about forced sterilization and when we think about child removal, that's part of a reproductive justice framework because we have to protect the right of people to have and to raise their children, as well as to choose when and how many children to have.

- Well, that even dovetails into, we have criminal justice agencies at every level in the United States that don't have maternity policies, that you could be pulled out of working in a jail, you could be pulled working from patrol if you get pregnant, and you may not have a job. And that falls into that reproductive justice, is you have to choose between your job, your career, your livelihood, and having a child. And there is no protection for that. There's no legislative protection for that.

- Right. Because there's some sort of implicit coercion not to have children if you know that you'll be put on a desk or you're going to lose the opportunities that you need to advance in your career. My aunt was an ironworker, Chicago. So she worked in super, super high buildings, clipped to things, doing ironwork.

And when she was pregnant, after a certain point, they told her she had to stop working because they literally didn't make, like, Carhartts-- the guys did-- that would fit a pregnant body. And so they were like, I guess you're done now until the baby's born. And she said, I don't want to. I can't afford not to work. I can't afford to stop working. But because she was a woman in a job that's traditionally considered a masculine career, she was limited in that way.

- Yeah. Well, like I said, we see that all through public safety, EMTs, and some even health care workers. I mean, it's hard to work in the emergency room. So we do still see that. It's not always on the criminal side. It could impact you professionally as well. It can impact your life. And if you're victimized, obviously, it could impact there too. - And those ideas are based on concepts about protecting women.

And we don't really see similar parallels with men, even though there are definitely jobs that can impact men's fertility as well. But there have been a lot more restrictions on women's employment based on alleged concerns about the impacts on their fertility or the safety of their pregnancies, which, again, it tells us something about the way we think about motherhood and fatherhood. And that harms men and women. - Right. It does. Well, I think we're coming to the end of our time.

Did you have any ideas you want to wrap up with, things that we haven't touched on yet that interest you? Or what are you watching out for in the future for your daughters? - Yeah. I mean, I realized after I had said this that I actually misspoke when we were talking about the young girl in Indiana who was sexually assaulted, and then it was difficult for her to obtain an abortion. She was 11. And I remember that because my daughter is 11. - Right.

- And the idea of my child, who can't go to bed without me reading her a book and tucking her in at night, being forced to continue a pregnancy literally makes me feel sick. So I think we can't, in Minnesota, just rest on the assumption that we're protected here because there are ways that that can change. And so I think that's what concerns me about my daughters.

And I know people with kids slightly older than mine who said, I've started stockpiling Plan B because I'm afraid that it won't be available to my daughters when they need it. So I guess, yeah, thinking about the future of reproductive justice for my children is concerning. Also, I'm very committed to working with women who are in prison. And thinking about the reproductive rights and limitations for women who are incarcerated is also something that is really meaningful to me.

- Well, and it's almost scary, but we have to tell women now, when you apply for a job and they offer health insurance, you're going to have to ask them, will my health insurance cover contraception, because there are companies that can opt out of that now, which just seems illogical. But yeah, there's a lot. Well, thank you, Dr. Harrison. I so appreciate your time. And I know you and I could talk for hours about this. And you teach some awesome classes on this. But I thank you for your time.

- Yeah. Thank you so much. [UPBEAT MUSIC] - Thank you for listening to this episode of Let's Talk CJ podcast. If you have suggestions for future episode topics, interviews, or other areas to cover, please email us at criminaljustice@mnsu.edu or visit our website. Join us next time for a new episode. And thank you for listening.