“Personhood” laws seek to classify fetuses as “persons” and grant them full legal protection under the US Constitution. These laws purport to protect the rights of a pregnant person, should they be involved in any sort of incident that terminates the pregnancy. Pro-choice individuals vehemently oppose Personhood laws because they broadly restrict an individual’s choice on how and whether to proceed with a pregnancy.

However, there’s more to these Personhood laws than immediately meets the eye. Cue PERSONHOOD, a documentary that focuses on the dangerous consequences of Personhood laws in the US. The film, directed by Jo Ardinger and produced by Rosalie Miller, is set to receive an American Bar Association (ABA)  Silver Gavel Award on July 21. We were invited to interview the two filmmakers who explained to us their experiences documenting the effects of Personhood laws.

The Policing of Pregnant People in the US

PERSONHOOD documents the experiences of Tammy, a Wisconsin woman who unexpectedly became pregnant and subsequently faced the Wisconsin Personhood law. Tammy was taken into custody, imprisoned, and labeled as a child abuser under the law after seeking medical help for herself and her baby.

Tammy had a thyroid condition for which she had to take medication. After she lost her job and her insurance, which left her unable to get her thyroid medication, she became extremely depressed and began taking methamphetamines to cope. Tammy stopped using the drug as soon as she discovered that she was pregnant and sought emergency medical care. The doctor who Tammy had trusted to care for her instead reported her to authorities. The hospital then held Tammy against her will, during which time a judge determined that she should go to a treatment facility for her alleged drug problem. When Tammy refused, she was sent to jail for 30 days for contempt of court.

While in jail, Tammy did not receive any prenatal care. She left jail after 18 days because she signed a consent decree at a hearing, agreeing to continue her pregnancy under strict state supervision. As a result of this ordeal, she was added to the state’s list of child abusers.

In Wisconsin, under the Personhood law, a person can be taken into custody if anyone suspects a pregnant person is mistreating their fetus. The fetus is taken into “protective custody,” along with the pregnant person. Jo and Rosalie stressed that Personhood laws are not just a case of pro-life versus pro-choice. Many of the people who have been adversely affected by Personhood laws were adamantly opposed to abortion. Jo noted that pro-life individuals could be victims of these laws, even though they are not seeking abortions when they seek medical care. As an example, she described an email that she received from a woman in Arkansas who had previously participated in the March for Life. The woman said that the documentary was eye-opening because she had never realized what Personhood laws could really do.

States other than Wisconsin have passed or tried to pass similar laws. In Tennessee, a person in labor may have their blood drawn to test for drug use without that individual’s knowledge. In Colorado, Amendment 67 sought to add the unborn to the definition of person and child, justifying it as a way to protect mothers’ rights in the unfortunate event something happened to the fetus. However, some people interviewed in PERSONHOOD argued that these laws make pregnant people more vulnerable because they can be turned around and used as a method of prosecution.

As the documentary continues, Tammy gives birth to her child, Harmonious. She is emotional and relieved to have had a healthy baby, as medical and legal professionals had continuously reminded her about the possible effects her drug use may have had on the baby. After the birth of Harmonious, Tammy decided to leave Wisconsin for Hawaii. However, the legal system followed her there, affecting her ability to receive medical services for her son. This experience led her to join the fight against the repressive regime affecting the reproductive autonomy of women.

With the efforts made by women’s rights organizations, the Wisconsin Personhood law was declared unconstitutional in 2017. However, the decision was reversed in 2018 by the US Court of Appeals for the Seventh Circuit. The bill was then reinstated and is still being enforced against pregnant people in Wisconsin today.

Advocating for Reproductive Justice 

Jo Ardinger was first learned of and became interested in personhood laws in 2011. Rosalie Miller joined the project in 2013, struck by Jo’s reframing of the conversation outside of the typical abortion debate. Jo and Rosalie tried to address both sides of the discussion, including the viewpoints of those who opposed Personhood laws and the people who were responsible for leading the Personhood movement.

The documentary incorporated different viewpoints to provide a holistic view of reproductive justice and break the barriers of esoteric narratives. The film also captured some terms used to identify pregnant people under the influence of drugs, like “host.” Moreover, on being asked how the filmmakers managed to set their personal biases aside while creating the documentary, they said that this was an advocacy film aimed at creating social awareness on an important issue. Jo and Rosalie described how they attempted to “[c]apture people as they [were] and not to suit the director’s view.”

Neither Jo nor Rosalie believes that the issues plaguing Personhood laws can be resolved without repealing them. From their experience, one side has historically been very unwilling to compromise, making it nearly impossible to prevent situations like Tammy’s, even if a law’s intended purpose was to protect pregnant people.

According to Jo and Rosalie, people must stay politically engaged, even on the local level. People need to demand collective accountability because there is so much more at stake than just the right to abortion. Jo recounted how dismal it was to encounter the high level of disconnect and ignorance that the average person felt concerning the Wisconsin Personhood law. Adding to this, Rosalie said that lawmakers have capitalized on this ignorance to write off women’s constitutional rights.

While making the documentary, both of the filmmakers observed that people were mostly “punishment oriented”. The punitive element of the Wisconsin Personhood law, as Jo opined, has only traumatized the people affected by the law, rather than help them change their lives. The “shock value” of such a punitive measure is so great that it resonates negatively with any individual, regardless of how they identify. Jo stated that “society only declines when you ignore the ill.” Seeing a person struggling with illness through a “criminal lens” dissuades faith in healthcare justice.

We also asked Jo and Rosalie how they narrowed the focus down to a few states to collect experiences for the documentary. While logistical convenience and limited resources influenced this, they were passionate about understanding the many ways in which one could be “dragged into the justice system,” regardless of residence. Reproductive rights laws are inconsistent throughout the country but the system tends to follow people who come under the radar of the authorities. For instance, Tammy and her family left Wisconsin because she was unable to find employment in her field after her child maltreatment charge. However, Tammy’s experience with the Wisconsin Personhood law followed her to Hawaii where she continued to face the stigma of her past any time she sought medical care for her child.

The filmmakers also considered the developing jurisprudence of “personhood” retrogressive, stating that the increase in these types of laws is a degradation of the decades of civil rights movements. Moreover, determining the wellbeing of a fetus without considering the pregnant person diminishes one’s constitutional rights. This encroachment on individual rights, coupled with the differences in the accessibility of birth control, has led to a distorted idea of bodily autonomy, entrenching pregnant people more aggressively.

Through our discussion with the filmmakers and the experiences recorded in the documentary, it appears that the medical and legal systems are failing the underprivileged population while disconnecting them from their intrinsic human rights through the guise of fetal protection.

We asked Jo and Rosalie what they thought of the future of reproductive justice in the United States, to which they responded: “The future of the United States is reproductive justice.”

Cassandra Maas is a JURIST Associate Editor and second-year law student at the University of Pittsburgh School of Law.

Khushali Mahajan is a JURIST Assistant Editor and a second-year law student at the Rajiv Gandhi National University of Law, Patiala, India.

Suggested citation: Cassandra Maas & Khushali Mahajan, PERSONHOOD: A Story of Reproductive Rights and Pregnancy Policing, JURIST – Student Commentary, July 19, 2020, https://www.jurist.org/commentary/2020/07/maas-mahajan-personhood-documentary/.

This article was prepared for publication by Gabrielle Wast. Please direct any questions or comments to her at commentary@jurist.org