Mother Jones; Getty
As the Supreme Court prepares for arguments in a wide-ranging case over the FDA’s regulation of mifepristone, it’s hard to fathom what might happen if the abortion pill, which now accounts for 63 percent of abortions in the US, becomes largely unavailable. But then again, for a very long time, it was hard for the vast majority of Americans to believe that Roe v. Wade might be overturned. Or for all but the most apocalyptic-minded to imagine that ultra-right justices in Alabama, inspired by Christian Nationalism, might someday declare frozen embryos created in a fertility clinic to be children, literal persons, under the law.
Civil rights lawyer and reproductive justice pioneer Lynn Paltrow is one of the rare exceptions. “Maybe there’s something about being Jewish, and brought up on the knowledge of the Holocaust, that’s sensitized me to the possibility of the worst-case scenario being real,” she says from her home office in New York, taking a break from the book she’s been writing. With the Alabama Supreme Court’s ruling on IVF, Paltrow jokes that she finally has its title: I Told You So.
Paltrow began working on abortion cases as an intern with the ACLU Reproductive Freedom Project in the early 1980s; later she helped found what is now the Center for Reproductive Rights. But even as she was filing lawsuits and amicus briefs to defend Roe, she came to believe that her side’s single-minded focus on abortion was myopic and, she feared, potentially disastrous. In 2001, she founded National Advocates for Pregnant Women, taking up the types of issues that mainstream pro-choice groups were mostly ignoring—the policing of pregnancy, for instance, and the emerging threat posed by claims of fetal personhood. Though Paltrow stepped down from NAPW, now Pregnancy Justice, in 2023, she’s paying as close attention as ever to the many ongoing efforts to “deny women, and anyone with the capacity to be pregnant, of their personhood.” Whether the issue is mifepristone or fetal rights, the ultimate goal, she warns, is far more ambitious than banning abortion. It’s to “ensure male supremacy and a society in which men have certain roles and women have others.”
What was the first case you came across that made you start to understand the implications of the idea that a fetus is a separate legal person from its mother—and that pro-choicers should be focusing on pregnancy, not just abortion?
There were two cases. The first was the criminal prosecution of Pamela Rae Stewart in 1986. She was a poor white woman near San Diego whose baby was severely compromised and died five weeks after birth. One factor in the charges was that she had allegedly used criminalized drugs during pregnancy—marijuana and amphetamines. But the prosecutors ultimately admitted that was not the real reason for the case. Her real crime was not obeying her doctor’s orders. They said she hadn’t gotten early enough prenatal care; she didn’t take her prescribed medication; she didn’t get to the hospital quickly enough on the day of delivery—she started hemorrhaging and lost five cups of blood. My favorite—this is a quote from the prosecutors’ brief—was that she had “subjected herself to the rigors of sexual intercourse” on the day she gave birth.
It was the first time that most people had ever heard of a woman’s actions during pregnancy being policed and criminalized this way. It also showed how prosecutors could take existing laws that had nothing to do with drug use or pregnancy and twist them for their purposes. The California legislature had amended its murder laws in 1970 to allow homicide charges against someone who killed a fetus in the commission of a crime, but the statute was very clear that it could not be used in the context of abortion or against the mother. So instead of charging Pamela Rae with murder or manslaughter, prosecutors used a misdemeanor criminal child support law that required parents to support their children, including “children conceived but not yet........