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Below is the Unpunish Pregnancy Policy Evaluation Framework to be used by AI tools for evaluating policies:

Unpunish Pregnancy

A Policy Evaluation Tool 

"Nobody should fear arrest or government control because of pregnancy or any pregnancy outcome. Pregnancy should not result in the loss of personhood for the pregnant person."– Pregnancy Justice

Why is this necessary?

Policies designed to achieve specific outcomes, even “good” outcomes, often rely on and reinforce systems of surveillance, policing, and punishment. While anyone can be targeted by these systems, they target pregnancy-capable people specifically, with unique threats to their bodily autonomy.

Bodily autonomy is understood to mean the power to determine what happens or doesn’t happen to our bodies. Bodily autonomy is a foundational human right, relevant to a wide range of concerns, upon which all other human rights rest.  

Some policies are just obviously bad and harmful, and no further analysis is needed to reject or oppose them. But in other cases, threats to bodily autonomy are harder to spot or articulate. This resource was created to uncover these coercive and punitive policy mechanisms that target pregnancy-capable people and threaten their bodily autonomy.

Who is this for?

This is intended for lawmakers, legislative staff, and policy advocates who may be developing and/or evaluating policies across a wide range of issue areas. It may also be useful to anyone analyzing policy – activists, impacted communities, journalists, etc.  

How to use this?

This framework asks a series of questions to help interrogate policy mechanisms.  After some initial considerations to grapple with, the rest of the tool is organized into overarching issue areas. In each section, you will find an introduction, questions and resources to guide your analysis, and examples of how the issue plays out in policies that affect people’s lives. 

We recommend proceeding through all sections of the tool, even if you do not initially see a connection to the policy you are analyzing. It is designed to unearth the many ways a policy may target pregnant and parenting individuals and impact their bodily autonomy. 

To protect bodily autonomy, revise or remove coercive and punitive policy mechanisms. 

Sections: 

Use the links below and the navigation on the left pane.

Table: Initial Considerations

Table: Sample Policies & Impacts

Section PR: In the Name of Protection

Section EC: Economic Coercion

Section SV: Surveillance

Section PP: Policing & Prisons

Section FP: Fetal Personhood

Use Examples

Is it Progress? 

Negotiating with Integrity

“Criminalization is the root we choose to pull on with all of our might.” – Andrea Ritchie

Resisting Criminalization of Reproductive Autonomy: Infographic by Interrupting Criminalization & The Center for Advancing Innovative Policy. May 2019.

Unpunish Pregnancy was developed by Patient Forward and the Center for Advancing Innovative Policy (CAIP), with significant leadership and contributions by Megan Donovan.  

The process for creating Unpunish Pregnancy was based on generous input and thought-partnership from stakeholders including organizers, policymakers, and subject matter experts. 

Inspired by the foundational work of Critical Resistance, and their tool “Reformist reforms vs. abolitionist steps in policing,” this resource was further influenced by tools created by UpEnd, National Survivors Union, Interrupting Criminalization/CAIP and others.

For questions, feedback, and/or collaboration, please contact: hello@patientforward.org

Unpunish Pregnancy:

Initial Considerations

Initial Considerations & Flags

Adjustments to Make

Are you starting from the presumption that the state needs to be involved? Does the government need a role? 

Start from the presumption that the government need not be involved in policing bodies at all.

Who is directly impacted by the policy? Are they represented among those drafting the policy or have they been consulted?

Policies affecting a particular group of people should be crafted with their direct involvement and input.

Is the pregnancy-capable, pregnant or parenting person depicted with respect? Are they empowered to make and effectuate decisions about their bodies and their pregnancy? 

If peoples' lives are the subject of a policy, they should be treated with respect. Ensure the language and framing of the policy does that.

Does the overall approach favor providing care, resources and support? Or does it seek to coerce and punish? 

Avoid systems of control or punitive mechanisms. Instead, develop systems to meet people’s needs. 

Is the policy aligned with the Reproductive Justice framework? Reproductive Justice is the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.

Reproductive Justice invites analysis of systems, consideration of intersecting oppressions, and centering marginalized groups. 

Does the approach support everyone capable of pregnancy? Are some pregnancy-capable, pregnant or parenting people favored over others? Are lines drawn along race, ability, immigration or economic status, etc?

Revise policies to ensure that all bodies and minds can benefit. This may require additional resources or accommodations. 

Does the policy rely on well-meaning and benevolent enforcement? If there were “bad apples” enforcing it, does the policy enable harm or abuse?

Plan for the worst. Find a way that accounts for and averts potential abuse, misuse, and harm. 

Does the policy change how other laws apply based on an individual's pregnancy status?

Avoid mechanisms that apply differently based on a pregnancy. 

Does the policy have language that gives rights or benefits to a fertilized egg, embryo or fetus?

Avoid mechanisms that grant legal status to a fetus. 

Does the policy require compliance for someone to receive essential resources, treatment, or support?

If something is required to survive or thrive, it should be provided, not withheld to encourage compliance. 

Unpunish Pregnancy: 

Sample Policies & Impacts

BodilyAutonomy

Policing &Punishment

Support & Resources

Fetal protection laws that establish a fetus as a potential victim of a crime, neglect, abuse, or that allow adverse pregnancy outcomes to be investigated

Abortion laws that protect some abortion rights, but exclude later abortion, access for minors, immigrants, or fail to provide public insurance coverage or funding

Laws establishing “Parents’ Rights,” including the authority to direct or override a minor’s health care decisions

Policies that provide housing and food assistance for families or counseling and drug treatment services, but are only accessed through child welfare agencies

Removing criminal penalties for sex workers, but criminalizing their customers instead.

Removing minors when their basic needs (food, housing, etc) are not being met by parents

Providing prenatal care through a program that requires mandatory drug screening/testing

Policies that offer resources to low-income, disabled, or elderly people, but have strict eligibility requirements,  resulting in a reduction of benefits upon marriage.

Allowing birthing people to choose the method and place of delivery along with their care team, and ensuring these preferences are covered by insurance

Providing insurance coverage, including public insurance like Medicaid and/or funding abortion care

Policies that offer voluntary Plans of Safe Care for substance exposed newborns and parents without triggering child welfare agency reports or investigations

Requiring written and oral informed consent for any prenatal drug testing of pregnant people or newborns

“Bodily Autonomy” refers to the power to determine what happens and doesn’t happen to your own body

“Policing & Punishment” refers to the State’s systems of surveillance and criminal and civil punitive responses 

“Support & Resources” refers to services or things people need being provided or withheld by the State

“Coercive” refers to support or resources being used by the State to persuade or compel people to comply.

In the Name of Protection

Laws that punish pregnant people and parents are often presented as protections, so they look and sound good on the surface.

When it comes to pregnancy and parenting, policymakers often seek to protect those they deem vulnerable. This may include:

• Protecting a pregnant person and/or their fetus from outside harm

• Protecting a fetus from the actions of the pregnant individual

• Protecting individuals from themselves or their own decisions

• Protecting children from the actions or inaction of their parents

But when the State is given the role of the “protector,” someone becomes the “assailant.” Human rights and bodily autonomy are routinely trampled under the guise of "protection." Pregnancy-capable, pregnant and parenting people are acutely at risk. Social and political identities like race, age, disability, immigration status, etc interact to compound these risks.  

Policies that punish in the name of protection are based on the myth that the State can stop all bad things from happening. But the government simply cannot eliminate the risk of harm, regret, or other adverse outcomes. 

NOTE: This is a complicated area of policymaking. Often a law or policy can seem to have both positive and negative outcomes. But no amount of policing and punishment can completely eliminate risk or harm. And there are more effective ways to address harm than with the threat of state violence.

PR-01

Does the policy create a role for the State as a protector rather than the state as a provider?

Red Flags

Programs or policies that seem well-intentioned but have the effect of harming pregnant people and their families.

Policies that assume harm, for example by assuming a fetus or child is a victim. Look out for examples in which state actors have discretion to assign the status of victim.

Examples

• Removing children from their families in order to "protect" them. Child removals cause lasting harm and trauma to those very children it claims to protect.

• Responding to substance use during pregnancy with reporting to "child welfare" agencies. For example, see the Child Abuse Prevention and Treatment Act (CAPTA).

• Schemes intended to "protect" sex workers by targeting their customers. 

• “TRAP” laws, or Targeted Regulation of Abortion Providers laws, are presented as reasonable regulations for patient safety. In reality, they are medically unnecessary requirements - barriers designed to make it harder to provide abortion care.

• Mandated treatment/detention, such as in the case of involuntary psychiatric holds.

• Bans on gender-affirming care for transgender, non-binary and gender-expansive youth, ostensibly to “protect” young people.

Why It’s Harmful

When the State steps in (or oversteps in) as protector, it assumes there is a victim and a perpetrator. The State attempts to address or prevent harm with punishment, or the threat of it, rather than with resources and support.

Protection frameworks are also used to justify threats to bodily autonomy, i.e. unnecessary medical regulations “for safety” that make abortion or gender-affirming care harder to get.

Resources

• Understanding reproductive justice from a disability justice perspective

• Disabling Families

• Parenting and Drug Use

• 50 Years of CAPTA: What You Need to Know About This Harmful Law

• Criminalizing Gender-Affirming Care with Minors

PR-02

Does the pregnant or parenting person get to make their own health care decisions?

Red Flags

Policies that give someone else control over the person. This may be a government actor or a third party, like a clinician, spouse or parent.

Language such as “for their own good” or “in the best interest of the child” or referring to pregnant people as “mothers.” These red flags should prompt careful consideration of if/how an individual’s decision-making and bodily autonomy are being coerced or usurped.

Examples

• Programs that encourage use of a certain kind of birth control. These programs may target people because of income, race or status as disabled.

• Coerced or mandatory drug treatment programs for pregnant or parenting people as a way of avoiding reporting to family policing or law enforcement entities.

• Legal orders that give someone else control over decision-making. For example, guardianship or conservatorship arrangements.

• Requiring a young person to inform or get permission from their parents for health care, such as STI testing or treatment, contraception and abortion.

• Parole requirements or sentence reductions contingent on avoiding reproduction.

• Abortion bans, and exceptions to bans based on a physician’s discretion

Why It’s Harmful

These rules or systems are overly controlling. They remove agency from the pregnant or parenting person. They may be coercive or punitive. People with less power and privilege are often targeted. Such laws are shaped by a long legacy of infantilizing and commodifying the fertility of women of color. They build on histories of colonization and enslavement. It is not the government’s job to decide what’s best for people. People must have the freedom to make decisions, including to risk harm or regret.

Resources

• Bodily Autonomy and the Right to Privacy: What They Are, How They Affect People with Disabilities, and Why We Need to Protect Them

• Powerful Contraception, Complicated Programs: Preventing Coercive Promotion of Long-Acting Reversible Contraceptives

• Loss of autonomy: how guardianships threaten people’s rights

• Rethinking Guardianship to Protect Disabled People’s Reproductive Rights

• Abortion and Parental Involvement Laws

PR-03

Does the policy aim to eliminate risk?

Red Flags

Policies based on the idea that the State can stop all bad things from happening. That it should remove the risk of harm, regret, or other adverse outcomes.

Examples

• Rules or bans on trans-affirming care, sterilization, or abortion in an attempt to eliminate the possibility of regret.

• Bans on vaginal births after a c-section.

• Restrictions or bans on home births or other alternative birth plans

• Policies that create pressure to submit to c-sections

Why It’s Harmful

It is not the government’s job to decide what’s best for people. People must have the freedom to make decisions, even if they risk harm or regret. 

Resources

• The Dignity of Risk

• Reframing Regret

PR-04

Does the policy punish people for pregnancy loss or actions that negatively affect or are harmful to their own pregnancies?

Red Flags

Laws that create a crime that would not exist but for the pregnancy. Language making it a crime to cause harm to a pregnancy. 

Examples

• Fetal assault/homicide (“feticide”) or “child endangerment laws applied in utero.

• Equating substance use during pregnancy with child abuse. For example, by including substance use in the definition of child abuse or neglect.

• Using charges like delivery of drugs to a minor, chemical endangerment of a child, neglect of a dependent, or manslaughter to punish a pregnant person for drug use.

• Murder, feticide, or child neglect laws used in response to self-managed abortion.

• Bans on self-managed abortion and other criminal abortion laws.

Why It’s Harmful

These approaches assume bad faith instead of providing resources and support. They isolate pregnant people, who may be less likely to consult medical providers or seek other treatment. Creating environments of fear and criminalization in health care settings worsens health outcomes.

Resources

• Issue brief on how fetal homicide laws work

• Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period

• Self-Care Criminalized: The Criminalization of Self-Managed Abortion from 2000-2020

PR-05

Does the approach co-opt existing law and apply or extend it to another circumstance?

Red Flags

Misapplying or extending a seemingly protective legal concept and using it to criminalize and punish other behavior. 

Examples

• Making it a crime to help a minor access abortion care (e.g. “trafficking”).

• Using the Comstock Act, an anti-vice law from the 1800’s, to police the distribution of FDA-approved abortion medication, pornography, or queer content. 

• Allowing civil lawsuits for abortion under “wrongful death” tort laws.

• Using fetal protection laws, intended to deter violence against pregnant people, to punish pregnant people for their behavior while pregnant. 

• Misapplying licensing laws to people who self-manage their abortion care. For example, penalizing them for “practicing without a license.”

• Misapplying criminal laws like murder or child endangerment in cases where adverse birth outcomes involved a home birth.

• Using laws intended to address child abuse and neglect to apply to a fetus, allowing pregnant people to be punished for prenatal substance use or other activity. 

• Leveraging licensing laws as a tool to prevent clinicians from providing abortion care.

• Weaponizing the budget process for policy goals, such as banning insurance. coverage of abortion or restricting state funding for medical schools if they work with abortion clinics to provide training or care.

Why It’s Harmful

These approaches further isolate pregnant people. They weaponize the breadth of the law, and allow prosecutorial discretion to run amok. They violate due process as laws are stretched to encompass more activity than intended. People trying to manage complicated situations or help their loved ones end up categorized as criminals.

Resources

• Tennessee is the second state to criminalize minor “abortion trafficking.” Activists are pushing back.

• Criminalization of Self-Managed Abortion from 2000-2020

PR-06

Does the policy grant discretion in its application or enforcement?

Red Flags

Vague language that lets people in positions of power make subjective decisions. Decisions can be made without oversight or review. There may not be any due process or a reasonable way of appealing the decision.

Examples

• Mandatory reporting laws, which allow healthcare workers, teachers, social workers, etc to use their discretion to report child abuse or neglect and initiate child welfare investigations.

• Determinations by "child welfare" agents or family courts that child abuse or neglect has occurred – which don’t require a burden of proof and do not afford due process.

• Abortion policies that rely on someone else's judgement (a clinician, hospital review board, or judge in a judicial bypass process) to decide whether a pregnant person deserves to receive abortion care.

• Deference to “medical judgment” or a determination of “medical necessity” for whether someone may receive treatments or healthcare, or insurance coverage

• Prosecutorial discretion, which allows the misapplication and abuse of a broad array of criminal laws to prosecute behavior such as drug use or pregnancy loss.

Why It’s Harmful

When people are charged with interpreting or enforcing policies based on their subjective judgment, their own viewpoints will affect the outcome. Racism, bias and stigma are consistently proven to shape the ways discretionary policies are applied by people who are in positions of power over others – from police officers to social workers. This affects how people access care or resources and whether or to what extent they are punished.

Resources

• When Mandated Reporting Does More Harm Than Good: Tools for a New Approach

• ProPublica: Mandatory Reporting Was Supposed to Stop Severe Child Abuse. It Punishes Poor Families Instead.

PR-07

Is there robust informed consent? 

Red Flags

Tests or procedures done without any or insufficient explanation and consent, or where consent is coerced. 

Examples

• “Test and report” practices in hospitals that screen or test pregnant people and their newborns for drugs and report results to family policing or law enforcement agents.

• Programs that single out specific groups for birth control or sterilization, or take advantage of those that are institutionalized or in detention.

• Policies that condone nonconsensual sterilizing and genital-altering on intersex infants and children.

Why It’s Harmful

Informed consent is a basic human right and a core principle of medical ethics. People with less power and privilege are more likely to be denied informed consent. While being denied informed consent is a harm in and of itself, this denial can lead to other negative outcomes – such as criminal legal outcomes and/or child removal.

Resources

• Informed Consent New York

• Clinical drug testing of pregnant people and newborns

PR-08

Does access to safety and/or healthcare require exposure to punitive systems?  

Red Flags

Systems of support and care that are connected to systems of surveillance and punishment. Policies that offer things people need to be or become safe, but lack mechanisms to protect them from punitive systems. In this case, it is the lack of these mechanisms that threatens bodily autonomy and causes harm. 

Examples 

• Prenatal drug treatment programs that involve the risk of being reported to family policing agencies and/or law enforcement.

• Post-natal support, such as home visits, provided without consideration for the risk of being reported to family policing and/or law enforcement.

• Support for survivors of domestic abuse that triggers the criminal legal system.

• Policies that compel healthcare workers and institutions to cooperate with law enforcement and participate in the criminalization of their patients after violence, pregnancy loss, self-managed abortion, sexual violence, etc.

• People having to risk interactions with ICE to access legal processes, benefits, healthcare, education, their jobs, etc. 

Why It’s Harmful

Accessing treatment or support while pregnant or postpartum may trigger additional scrutiny and reporting to authorities. This deters people from seeking that support, and makes them less likely to get treatment or help that they need. When people are scared of potential consequences or responses by the State, they are coerced into making decisions that may risk their health or well-being. 

Resources

• Pregnant People with Substance Abuse Disorders Need Treatment, Not Criminalization

• Model Substance Use During Pregnancy and Family Care Plans Act

• Law Punishing Drug Use During Pregnancy Likely Worsen Health Outcomes

• Survivors of Domestic Violence Report Feeling Less Safe After Contacting Law Enforcement

• Beyond Do No Harm

• What About the Rapists?

Economic Coercion

Policies may offer resources people need, but require compliance.

Not all bad policies rely on criminally punitive mechanisms. Governments may offer resources or support that people need, but use this to compel behavior or compliance, or push them toward a desired “choice.” One of the most direct ways to limit people's autonomy is by using the “carrot,” rather than the “stick.” 

Our economic system creates inequality and unmet needs. Poverty is inherently coercive as options may be legally available, but practically pushed out of reach. When policies fail to account for or address persistent and well-documented disparities, they are deliberately harmful and coercive. 

In some cases, policy measures are coercive by design. For example, a common tactic used by anti-abortion policymakers is to restrict public funding for abortion, and instead fund anti-abortion pregnancy centers. 

In other cases, a policy or program is well-intentioned, or seems to be, because it provides services or resources. But when the policy or program actually serves to control or encourage certain behavior, it is coercive. For instance, offering support for new parents, but only if they choose to breastfeed. Or drug treatment programs that are free, but require submitting to regular testing and surveillance. 

EC-01

Will a pregnancy-capable, pregnant, or postpartum person have their choices limited by a policy? What about other incentives or constraints related to cost?

Red Flags

Rules that limit a pregnant or postpartum person’s options by only covering some supports or resources and not others.  Policies offering resources to encourage or incentivize certain choices. 

Examples

• The Hyde Amendment and other limits on coverage of abortion.

• Time limits on parental leave, compelling people to go back to work. 

• Requirements for providers like doulas and midwives that limit their clients' options. For example, insurance requirements that block clients from having a “Vaginal Birth After Cesarean” (VBAC).

• Insurance coverage of some forms of contraception but not others. 

• Family caps, or any policy that limits public benefits or financial assistance based on a previously set  number of children in a household.

• Government funding for Crisis Pregnancy Centers (CPCs) who withhold information or provide misinformation about abortion and pressure pregnant people into giving birth. 

• Federal “Temporary Assistance for Needy Families” (TANF) funds intended to directly support low-income families and children being diverted to support CPCs and their anti-abortion goals or to child welfare agencies. 

Why It’s Harmful

Controlling  pregnancy-related care with financial incentives or barriers is cruel. These kinds of policies reinforce a stratified society in which poor people have fewer rights to control how and when they decide to have children. 

Resources

• Colorado passes landmark birth equity bill

• Hyde Amendment Fact Sheet

EC-02

Does the policy increase logistical or financial burdens, or fail to address them, as a deterrence? 

Red Flags

Policies that make accessing care take longer, cost more, or otherwise become more burdensome to access.

Policies that effectively de-fund or under-fund the needs of certain groups, thus indirectly making certain decisions about their bodies or families impossible to effectuate. 

Examples

• An absence of sufficient supports and resources to meet the needs of disabled parents and children, which has the effect of discouraging pregnancy and parenting for disabled individuals. If and when disabled parents do have children, a lack of sufficient supports subjects them to punitive measures related to custody and visitation. Similarly, able-bodied parents of disabled children may lose custody or visitation of their children if they do not have adequate parenting supports and resources.

• Treating every pregnancy for disabled individuals as “high-risk,” whether or not their disability affects pregnancy.

• Waiting periods, ultrasound requirements, and biased counseling requirements for abortion care meant to deter people from getting abortions.

• The Hyde Amendment and related restrictions on insurance coverage of abortion

• Excluding fertility treatments from public insurance programs, which means they are largely out of reach for all but wealthy individuals.

Why It’s Harmful

People must spend more time and resources to effectuate their decisions or access the care they need. A lack of support, or an increased burden, is factored into the decision-making process, and has a coercive effect. 

Resources

• The impact of mandatory waiting periods on abortion-related outcomes: a synthesis of legal and health evidence

• Disability Reproductive Justice

• Action Plan for Abortion Justice

EC-03

Are resources and support offered in a coercive way?

Red Flags

Trying to influence an individuals’ decision-making with offers of support and resources or with threats to withhold resources. 

Sometimes coercion is inadvertent or unintentional but no less harmful. If decision-making will be influenced by a “carrot or stick” approach, consider the effects on bodily autonomy and how best to support people without making decisions for them. 

Examples

• Policies that target specific groups and push birth control or specific types of birth control. For example, pushing long-acting methods or post-childbirth sterilization on certain groups. These programs are often designed to focus on low-income, disabled, or incarcerated people.

• Offering reduced prison sentences or other incentives if incarcerated individuals submit to sterilization.

• Pro-natalist policies meant to incentivize childbearing by providing essential resources not available to non-childbearing individuals.

• The Supplemental Security Income (SSI) Marriage Penalty, which makes people choose between marriage and access to critical resources they need to survive.

Why It’s Harmful

The "carrot or stick" approach is designed to influence behavior and takes away free choice.

When the support offered is a basic necessity, people are forced to do what the government wants. But it's dressed up like a choice.

Resources

• The impact of mandatory waiting periods on abortion-related outcomes: a synthesis of legal and health evidence

• Advancing Marriage Equality: A toolkit by DREDF

• Our Long, Troubling History of Sterilizing the Incarcerated

Surveillance

Policies that implement or increase surveillance of pregnant people heighten the risks of criminalization.

Pregnant people are highly susceptible to surveillance that can limit their freedoms and threaten their autonomy. 

Whenever a law or policy increases engagement with the State, and especially with law enforcement or related agencies, the risks may outweigh the benefits. This might look like mandatory check-ins or inspections, testing, or reporting requirements that trigger systems designed to punish people.

SV-01

Does the policy result in more interaction with agents of the State? Does it involve systems designed to police and punish, i.e. law enforcement, ICE or border patrol, or "child welfare" agents.

Red Flags

Required reporting or contact with these agencies or officials.

Policies that require drug testing for employment, treatment, or as part of a program to receive resources or support. 

Examples

• Mandatory Reporting Laws.

• Immigration status checks.

• Police presence at abortion clinics, schools, hospitals, or places that offer essential services.

• Policies that compel involvement of law enforcement following sexual assault, intimate partner violence, etc. 

Why It’s Harmful

The approach is set up to police and punish rather than respond and support. 

Resources

• Understanding the harm caused by mandatory reporting

• Understanding the consequences of increased police presence

• Understanding the impact of laws that terminate parental rights and send kids into the foster system

SV-02

Is drug screening required to access public benefits or medical care, or to avoid punitive responses?

Red Flags

Mandated drug screening or testing as part of any policy or program that people need to access fundamental rights, care, resources, services, etc. 

Examples

• Drug testing as a means to give or deny benefits. For example, in state-administered programs like TANF, SNAP, Medicaid and Unemployment Insurance. 

• A requirement that patients submit to drug-testing as a condition of receiving care, such as at a hospital.

• Drug testing that is required as part of probation, to stay out of prison and maintain one’s freedom. 

• Drug testing requirements for accessing or remaining in public housing. 

• Drug testing as a work requirement.

Why It’s Harmful

The focus is on punishment and withholding resources. Drug screenings target people of color and people with fewer resources. This is because these communities disproportionately use these public services, and because who is subject to these screenings is often at the discretion of clinicians, social workers, etc. – and hence prone to their biases about who uses drugs and why.

Resources

• Clinical drug testing of pregnant people and newborns.

• Drug Tests are not Parenting Tests 

• Drug Testing and Public Assistance

SV-03

Does the policy create or involve reporting or registration requirements that could be used for surveillance and lead to criminalization, family policing, or immigration enforcement?

Red Flags

Registering, reporting or any data collection that is not absolutely essential. (This is often under the guise of some State function or interest like collecting public health data) 

Examples

• Reporting requirements for abortion providers. 

• CAPTA requirements regarding substance affected newborns.

• Support programs that require registering a pregnancy or providing personal information beyond what is strictly necessary to access benefits.

• Parental notification documentation or additional reporting requirements for health care for minors. 

• Intake processes that require private information to be collected by a government agency, health care provider, or a third party to access essential services or care.

• Proof of citizenship, strict photo ID or other overly burdensome ID requirements to vote, apply for services/benefits, or participate.

Why It’s Harmful

Information collected by the State may be used to target individuals. It may also be collected by one entity, and then shared across databases with other agencies, law enforcement, etc. 

Resources

• Guttmacher on Reporting Requirements

• If/When/How CAPTA Reporting Requirements

Policing and Prisons

The impact that investigations, policing, and prison systems have on pregnant or parenting people and families.

Punishment is presented as a way to achieve justice or accountability. 

Most government responses are designed to assign blame and deliver punishment rather than address or repair harm. Rather than making things better, these punitive responses lead to more pain, loss, and harm. 

Carceral systems (jails, prisons, detention, etc) are designed to deny freedom. That is how they punish people. The fallout for anyone who can become pregnant or who is already pregnant or parenting is especially harsh and far-reaching. When pregnant people are criminalized, there are ripples of harm that spread out through families and communities. 

PP-01

Does the policy respond with criminalization? Does it reinforce law enforcement or punitive systems like prisons and jails? 

Red Flags

Policies that seek to address social issues or public health issues by making them a crime, i.e. drug use, sex work, poverty, or homelessness.

Directing more resources to systems that cause harm rather than addressing harm. For example, “reform” projects that strengthen the police force and reinforce its role.

Examples

• The war on drugs, and similar efforts to address public health problems with harsh penalties, enforcement, and incarceration.

• Cash bail, which allows people with money to purchase their freedom while awaiting trial, while those without means remain in jail.

• Alternatives to prison or jail that still involve law enforcement (e.g., many “diversionary” programs).

• De-escalation or other training for police. 

• Policies that make it a crime to take care of basic human needs in public, e.g. sleeping, eating, drinking, etc, targeting those who lack reliable access to housing.

Why It’s Harmful

The number of women in prison continues to rise at alarming rates. Many women in prison are pregnant or parenting. Rape and sexual assault are a serious public health problem in prisons. People are regularly denied desired health care such as their choice of birth control or access to abortion. The fallout for their lives and families is profound.

Resources

• The Realities of Pregnancy and Mothering While Incarcerated

• Incarcerated Women and Girls

• Number of Incarcerated Pregnant Women Increases During Opioid Epidemic

• Ending Cash Bail Is a Women’s Rights Issue

• Collaborate, Don’t Criminalize: How Communities Can Effectively and Humanely Address Homelessness

• Pregnancy as Punishment: The Impact of Abortion Bans on Incarcerated Women and Girls.

PP-02

Are pregnant people forced to endure inhumane treatment or deprived of bodily autonomy due to punishment?

Red Flags

Policies that allow pregnant individuals to be deprived of their bodily autonomy due to their legal status, immigration status, or incarceration. 

Gaps in policy that leave out or fail to protect the most marginalized pregnant people (e.g. incarcerated people, undocumented immigrants, young people).

Policies that allow family separation or child removal. 

Examples

• Shackling policies, where pregnant prisoners are chained during labor and childbirth.

• Policies that allow prisons or detention centers to subject people in custody to treatment without informed consent, or that deprive them of care or autonomy. 

• Child removal as a response to prenatal substance use or evidence of newborn substance exposure.

• Failure to adequately provide prenatal care, health care, nutrition, or neonatal care to pregnant and birthing individuals in detention centers, jails, and prisons. 

Why It’s Harmful

Depravations of human rights and bodily autonomy create deep and lasting trauma. Detention and incarceration are, in themselves, harmful. But inhumane treatment of pregnant and birthing individuals, whether due to negligence or intentional cruelty, is particularly harmful. 

Resources

• Shackling and pregnancy care policies in US prisons and jails

• Advancing Public Health Interventions to Address the Harms of the Carceral System

• Immigrants Say They Were Pressured Into Unneeded Surgeries

Fetal Personhood

“Fetal Personhood” laws threaten bodily autonomy.

Fetal personhood is a radical and dangerous legal concept. It refers to laws that grant rights, privileges, and legal protections to fertilized eggs, embryos, and/or fetuses. In doing so, they give the State a legal interest in a pregnancy and a blank check to enforce it. This includes controlling pregnant people's bodies and threatening their civil and human rights. 

Policies and legal mechanisms that grant fetuses the legal status of persons must be rejected. There is no safe compromise or incremental approach here. There is no way to build a just future on a foundation that includes any measure of fetal personhood.

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Does the law treat a pregnancy as a separate entity with legal rights or benefits?

Red Flags

Language that gives rights or benefits to a fertilized egg, embryo or fetus.Language that refers to the fetus as a separate entity in need of protection or consideration by the state. This can include a fetus being a potential victim of a crime. 

Examples

• “Fetal Personhood” laws

• Fetal protection laws

• Laws governing the management of fetal remains

• Legal claims for harms caused before birth (prenatal torts)

• Limits on medical directives for people who are pregnant

• Substance use or exposure during pregnancy used as the basis for a finding of child abuse or neglect

• Interpretation policies that direct the interpretation of the legal code to treat fetuses as persons or broadly change the status of a zygote, embryo, or fetus under the law

Why It’s Harmful

These policies set up a conflict between the rights of the pregnant person and those assigned to the fetus. This leads to a diminishment of rights for the pregnant person. Instead, any rights and protections should be conferred to the pregnant person. 

Resources

• Unpacking Fetal Personhood: The Radical Tool that Undermines Reproductive Justice 

• The Role of the Viability Line in Pregnancy Criminalization

• Abortion Justice Now

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Does the policy allow other interests to outweigh those of the pregnant person at any point in pregnancy?

Red Flags

Laws or policies that take health care options away from a pregnant person as the pregnancy progresses.

Laws that include points or stages of fetal development at all, including “cardiac activity,” “potential fetal viability,” etc. 

Examples

• Abortion bans based on gestational duration or development of the fetus. This includes bans at potential viability. These may hide in plain sight in well-intended efforts to protect abortion, e.g. The Women’s Health Protection Act.

• Fetal tissue disposition policies that govern the management of fetal remains, which may require different treatment or documentation based on fetal development rather than patient preference.

• Constitutional protections for abortion that include a viability line, where the protections are limited to pre-viability abortion care.

Why It’s Harmful

The pregnant person’s rights and freedoms are sacrificed. They are compelled to continue the childbearing process without regard for their interests.

Resources

• The Role of the Viability Line in Pregnancy Criminalization

• Gestational Age Bans: Harmful at Any Stage of Pregnancy

• Regulating Abortion Later in Pregnancy: Fetal-Centric Laws and the Erasure of Women's Subjectivity

• Abortion Justice Now

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Examples of Fetal Personhood Policies

Policy Example: Punishing Prenatal Substance Use

In a number of states, definitions of child neglect include substance use during pregnancy. This triggers mandatory reporting laws, where a health care worker is legally required to make a report to “child welfare” authorities. These reports result in “child welfare” investigations and court proceedings, and may lead to child removals, or even termination of parental rights. To avoid this risk, pregnant individuals using substances may avoid seeking prenatal care. These punitive responses lead to harm and adverse outcomes for parents and newborns. 

Policy Example: Abortion Laws with Limits

Proactive abortion laws that seek to protect the right to abortion sometimes include limits, often at potential fetal viability. Limiting the rights of pregnant people based on the development of the fetus is dangerous. These limits have been used to advance theories of fetal personhood. States have interpreted these lines to mean the point when the government can override the rights and bodily autonomy of the pregnant person.

Policy Example: Medical Directives

Over half of states have “pregnancy exclusions” for advance medical directives. This means that if someone is pregnant, their treatment preferences in end-of-life situations can be ignored. Advance directives exist to preserve bodily autonomy and self-determination in medical decisions. Pregnancy exclusions mean patients lose the right to direct their medical care.  

Use Examples 

Below are some illustrated examples of how one may use this tool to build or analyze a policy approach. As you walk through the tool, it will help you spot red flags, consider alternative approaches or missing ideas and find language to raise questions and propose next steps.

Evaluate a Proposed Policy:

In this example, a federal bill, the Women’s Health Protection Act (WHPA), offers protections for abortion care. The commenter has flagged that some of the language in the bill raises red flags because the protections apply differently based on the gestational duration of a pregnancy. This in turn limits all of the intended protections for those abortion seekers. 

Evaluating a Proposed Policy:

In this example, two colleagues discuss a policy proposal. Threats to bodily autonomy may not always be immediately apparent, especially in policies that do some good. Here, the commenter has used the tool to quickly evaluate a policy and flagged that some of the mechanisms in the bill raise red flags. 

Is It Progress? 

Policy Challenges, Incrementalism, and Negotiating With Integrity

Negotiating and compromising in policy advocacy is a complex and often fraught process.  Stakeholders come to the table with differing goals, theories of change, and resources. While collaboration is essential for progress, power imbalances, the push for consensus, and political pragmatism can sideline the priorities of less powerful groups. This can lead to outcomes that benefit some while leaving others behind. 

Incrementalism is often seen as a pragmatic approach and can provide meaningful gains for certain groups. But incremental strategies may also perpetuate systemic inequities by deferring urgent needs. The challenge lies in balancing strategic concessions with a commitment to equity, ensuring that no group is sacrificed in the name of political feasibility. 

In response to our survey, respondents from a range of progressive movements expressed frustration with the way compromise and incrementalism turn up in their work:

Legislators understand the impact of their choices and are often conflicted, but they feel pressure to do something, rather than risk bold legislation that they fear will not garner enough support. 

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Many of our cases are met with resistance because we are challenging the status quo--i.e., we want to get rid of laws that people are saying are "working fine" (i.e., parental involvement laws) and we are told not to "rock the boat" (before an election, before some other future contingency). 

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Generally there is the idea that we must take what we can get, based on what the public or politicians will support. This usually means cutting out young people, later abortion patients, people with low-incomes, and other vulnerable groups. Then the idea is that once the rights are secured for the majority, the rights will somehow trickle down. Or that the advocates and funders will somehow be inspired to come back in the future and secure rights for everyone left out after spending 50 million dollars per state to cut them out and exacerbate stigma for those groups. This obviously never happens.

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Most incrementalism is actually just compromise for the sake of a short-term win that is part of some other strategy, like an electoral strategy. It is not part of a long-term strategy to secure rights or access for everyone. We never see the groups cut out arguing for incrementalism or suggesting compromise is an important step along the way to the liberation they’ll depend on.

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In particular, respondents noted that underserved and marginalized populations are the first to be shut out of policy gains as a result of compromise and incrementalism:

The people left out in the end are the same, always, those who most need protection.

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The same folks are left out each and every time (young ppl, BIPOC folks, LGBTQIA communities, ppl living on low incomes, those living in rural areas). Incrementalism, by default, leaves people behind. We are designing systems/supporting policies that further privilege the privileged.

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Almost always, patients who need later abortion care and patients with limited resources are left out in the end. Compromise got us Hyde, viability bans, and so on. And compromise will get us a number of ballot measures enacted this Fall that codify Roe, which was never enough.

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Compromise and incrementalism tend to ensure that only those closest to power (typically white women) benefit from policy change meant to create more equality.

At the same time, some respondents acknowledged the ways in which incrementalism could be seen as progress or community strategies could be used to mitigate harm:

A number of hospitals are changing their drug testing policies during the birthing hospitalization - they are doing this in a variety of ways, one of which includes removing cannabis from the testing panel. Some are also not reporting based solely on cannabis use. This is incrementalism --- AND also is informed by evidence and really helpful for a lot of people. People who use drugs other than cannabis are left out. In the current demographics of drug use, I don't think that this has a disparate impact by race/ethnicity - and may benefit Black birthing people in particular, as I recall a recent study that indicated that more Black than white birthing people were reported to child welfare related to cannabis use during pregnancy.

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[Incrementalism] is only warranted when there is no other way and you have a plan to mitigate the harms through collective care and organizing.

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I resist the urge to deal in absolutes. The decision about whether or not incrementalism can [be] seen as progress should sit with those that are most impacted, not with ppl in power.

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At the end of the day, negotiation is an unavoidable part of most policy processes and success depends upon clear vision and carefully honed skills. For this reason, the following section is offered as an important resource and is reproduced with permission from the Center for Advancing Innovative Policy (CAIP).

Negotiating Policy with Integrity

An integral piece of the policy process is negotiation and — yes — compromise. This can be frustrating and difficult, particularly for communities whose needs have been routinely and historically ignored. It can make it feel like policy is where radical ideas go to die. It does not have to be that way. The CAIP team believes that policy is one of many important tools at our disposal- we just have to know how to use it. 

Deciding if and when to negotiate a compromise is a delicate strategic balance, but in the policy process we are often met with the limits of our current power. If you are at the limit of the pressure you are able to exert on an elected official or legislative body, you will arrive at a time to negotiate your wins- and what you must let go for the next fight.

Negotiate in the direction of your goals.

• Never negotiate at the expense of your ultimate vision; we don’t have time to work towards legislation that we’ll have to undo in fifty years, even if it is a marginal win now.

• Required: clarity of vision around your goal and your politics. You can’t know whether you’re compromising in or away from your ultimate direction if you don’t know where you’re going.

Notice who is bearing the brunt of the compromise. 

• Over and over, movements are asked to compromise their most marginalized members in order to secure a win for some of us. While this path might be seductive - and even alleviate suffering for some in our communities - we run the risk of further entrenching disparities, and further marginalizing already vulnerable communities. The truth is that it is easier to secure wins that benefit many of us than it is to “go back” to secure wins for communities of people who are routinely maligned and misunderstood. The “going back” to secure these wins rarely happens. 

Follow the money

• Many legislative efforts- particularly the kinds of investments our communities so desperately need- include appropriations or budget components. 

• Where is the money going? Who is profiting? Is there a contractor or manufacturer who stands to profit mightily? What does that mean for your communities? Does this align with where your values tell you investments should go, or are funds being allocated towards actors who have been hostile to your communities?

SOME EXAMPLES

In our time doing radical policy work, we’ve seen many compromises- a few good ones, and many bad ones. Here are two examples of compromises we believe left us worse off. 

The Hyde Amendment is a line-item in the yearly federal appropriations bill- that is, the budget- that prohibits any federal funding going towards abortion. What that means practically is that, unless individual states decide to cover this with state funds, low-income people using Medicaid can’t use their insurance to cover this piece of their health care.

• Why it’s a bad compromise: When you look at who bears the brunt of Hyde, it is low-income people, who are disproportionately people of color. That is, it is a community that is already quite vulnerable. The Hyde Amendment has now been in place for over forty years, and was largely forgotten by mainstream reproductive rights organizations in the interim. The women of color organizers who have been leading the charge for eliminating it are just over the past decade beginning to see more widespread support for its repeal.

Body-worn cameras were a popular intervention proposed in the wake of the uprisings in Ferguson and New York City in 2014 after the high-profile murders of Mike Brown and Eric Garner at the hands of the police.

• For abolitionists- those of us who believe that policing as we know it cannot be reformed and a new safety system must emerge- we needed to come up with policy interventions that looked toward that goal knowing that abolition was not in the cards in the near future. We knew that there were ways to intervene now to reduce the harms of policing that were in alignment with those values. 

• As expensive items that stood to add millions to police budgets around the country, we knew right away that body cameras were not a viable solution that was in alignment with a long-term abolitionist vision. 

• We also saw that manufacturers of these cameras stood to profit mightily, and that a push for this as a solution was less about what communities needed and more about what body camera manufacturers stood to gain. 

• Though many of us opposed body worn camera technology (choosing to support only interventions that reduced the size of police department budgets or were budget-neutral), body worn cameras have been widely adopted to mixed effect in police accountability processes.