By Camille Landry (Program Coordinator)
The United States of America is a nation – the first nation-state – that was founded on principles of genocide, racism, hatred and misogyny. Despite limited actions to recognize the basic human rights of Black, Brown, Indigenous, female and LGBTQI people, this nation persists in denying fundamental human rights to people who are anything other than cisgender, heterosexual white males who are not poor.
For every inch of progress women make in reaching a position of equity with white males, they are snatched backwards several feet by those who are determined to uphold the misogynistic status quo. In this nation, this society, despite years of struggle and incremental progress, a significant portion of the adult population holds the attitude that women exist to be submissive, available, and useful to men, primarily as sexual objects, child-producing vessels, and “helpmeets” – not fully autonomous human beings in their own right. Silly girls! Why strive for equality? Women are placed on earth by a patriarchal deity with the intention of being sources of pleasure and progeny for men.
The ongoing campaign to limit women’s power, autonomy and reproductive rights has turned to criminalizing pregnancy. As the American College of Obstetrics & Gynecology explains:
“Criminalization of pregnancy is the punishing or penalizing of individuals for actions that are interpreted as harmful to their own pregnancies, including enforcement of laws that punish actions during pregnancy that would not otherwise be criminal or punishable. Criminalization also occurs when laws not specific to pregnancy are either applied in a discriminatory way against pregnant people or have a disproportionate effect on pregnant people. Criminalization has taken many forms including, but not limited to, the passage of fetal assault laws, policies that punish or penalize pregnant people for substance use during pregnancy, and the practice of judicial intervention or legal attempts at coercion for refusal of care during pregnancy.”
Since 1973, there have been more than 1,200 documented cases in the United States alone of women who have been arrested or charged because of their pregnancy outcomes. These women are overwhelmingly Black and working class or poor.
The criminalization of pregnancy is closely aligned with conservatives’ crusade to overturn Roe v. Wade, the United States Supreme Court case that legalized elective abortions in 1973. The Supreme Court ruled that the Constitution of the United States protects a pregnant woman’s liberty to choose to have an abortion without excessive government restriction. Even before the Supreme Court’s recently leaked decision to overturn Roe vs. Wade, a host of laws and regulations have been enacted by state and federal governments that limit a woman’s right to autonomy over her own body. One of these strategies is to declare the fetus a person under the law, and then prosecute anyone who is suspected of causing harm to it. This opens the door to prosecution of women who have abortions and anybody who participates in an abortion. In Texas and some other states, this would include even Uber drivers who transport people to abortion clinics, or pharmacists who fill prescriptions associated with abortion.
In the United States, pregnant people have been charged, arrested, convicted and jailed for:
- Having a miscarriage (a “spontaneous abortion” in medical language).
- Using drugs or alcohol while pregnant.
- Being the victim of violence that has or may have harmed a fetus.
- Engaging in behaviors that the court deems risky but that are otherwise legal.
- Attempting suicide while pregnant.
- Refusing medical procedures that the pregnant person does not want or consent to, such as bed rest or cesarean sections.
- Giving birth to a dead or medically compromised child.
It should be a no-brainer that the rights that every human is heir to should apply to everyone, regardless of whether they are playing host to a fetus. Yet, in a vicious intersection of misogyny, racism, classism and hubris, these rights are often denied.
Pregnant people have often suffered suspicion over pregnancy loss. Historically some have been accused of witchcraft or other crimes and murdered – burned at the stake, stoned to death – for having successive or suspicious miscarriages. Inability to carry a child to term constitutes grounds for divorce in many societies. A common charge against women accused of witchcraft is that witches kill babies – inside and outside of the womb. This persists today in some parts of the world. There is apparently no greater crime than for a woman to refuse her assigned position as an inferior but necessary vessel for reproduction and a relief valve for male lust.
Many of the laws affecting pregnant people are “loophole laws” that were written because the courts cannot technically arrest someone for pregnancy loss. States therefore write laws that can charge the pregnant person under different statues but still serve the purpose of criminalizing pregnancy. Concealing a birth and concealing a death are felonies or misdemeanors in several states, and many people arrested after miscarriage or stillbirth are often charged under these laws. Also, many of the laws that have convicted them are those that give fetuses, and sometimes mere fertilized eggs, “personhood.” When a fetus is considered a person in the eyes of the law, the rights of the pregnant person are often swept away. Opponents of elective abortion make no attempt to conceal that overturning Roe is the reason these laws were written.
Fetal protection laws
These laws make it illegal to harm a fetus during the commission of a crime. A drunk driver or assailant who harms a pregnant person and their fetus can be charged with manslaughter. It is obvious that fetal demise that results from an assault or reckless behavior is physically and emotionally harmful to the pregnant person. It is equally obvious that existing laws that punish those who injure another person through drunk driving or assault are more than sufficient to protect the public. What is the rationale for having separate laws that apply only to pregnant people, unless there is a hidden agenda?
“Fetal protection” legislation would criminalize all abortions if Roe is overturned. Even with Roe intact, laws that consider the fetus a human being are dangerous to anyone who terminates a pregnancy. Several states have passed or are trying to pass into law statutes that forbid termination of pregnancy because the fetus has developmental issues, genetic problems, or for purposes of gender selection.
Some states require that all abortions be carried out by licensed physicians in a fully-staffed and equipped surgery center, not in a doctor’s office or procedure room. Note that abortion is an extremely safe procedure that can be (and typically is) appropriately performed in the same clinical setting as many other simple procedures such as cervical biopsies, endometrial ablation to control heavy, prolonged vaginal bleeding, endometrial biopsy or hysteroscopy (a technique used to look inside the uterus).
Non-physician practitioners such as nurse practitioners or physician assistants can and do safely perform these procedures in clinical facilities all over the world that are not equipped as full-fledged surgical centers. These fetal protection laws could result in the prosecution of licensed non-physician caregivers who are acting according to their profession’s standards and protocols. The laws could also result in prosecution of women who opt for self-managed (medication) abortions because they are not physicians.
Policing of pregnancy
Fetal protection bills can result in women being prosecuted for behavior that is criminalized only because they are pregnant. People have been prosecuted for opting to have a home birth, for refusing to submit to invasive medical procedures, or for drinking, smoking or using drugs during pregnancy. In some cases, children have been allowed to sue their mothers for injury caused during pregnancy. Other people have been prosecuted for “failure to protect” when their pregnancy produces a child with birth defects.
In other instances, laws have allowed discrimination against women – which is otherwise illegal – because they have the capacity to become pregnant. Women are excluded from jobs that could cause fetal harm. Typically these job categories have been male-dominated in the past. It is ironic that there have been no attempts to bar pregnant or potentially pregnant women from jobs in fields such as healthcare, childcare, education and housekeeping that might be hazardous to pregnancy but are considered traditional female roles.
These laws are serious violations of a pregnant woman’s constitutional rights to privacy, equal protection, and due process. They treat them differently simply because they are pregnant and subject them to standards that do not apply to anyone else.
Recently an infamous case in Oklahoma resulted in a woman being arrested, held and sentenced to prison. Brittany Poolaw, a 19-year-old Indigenous woman, was charged and convicted of manslaughter for having a miscarriage in her fourth month of pregnancy. When she presented at the emergency department after she started bleeding, she admitted that she had used methamphetamine. She subsequently miscarried. Prosecutors charged her with manslaughter despite the fact that the medical examiner noted that a genetic problem or a condition known as placenta previa could have caused the loss of her pregnancy. The nation’s leading group of obstetricians went on record stating that methamphetamine use does not cause pregnancy loss. Nonetheless, Brittany Poolaw was convicted and sentenced to four years in prison for the first-degree manslaughter of her unborn son.
The group National Advocates for Pregnant Women reported on a client in NYC who wanted a vaginal birth but was taken into police custody, had her legs strapped together, and was forced to undergo a C-section – because doctors believed that would be safer for the fetus and a federal court ruled that her rights were secondary to the state’s interest in preserving the life of the fetus.
In Alabama Kim Blalock was arrested and charged with fetal endangerment after she filled a legal prescription for pain medication, prescribed by her doctor to treat an injury she had suffered.
Marshae Jones was five months pregnant when she was shot in the stomach. Her fetus did not survive the shooting. Ms. Jones was charged with the death. Police said it was her fault because she started the fight that led to the shooting.
Pregnancy and the War on Drugs
It is not coincidental that Oklahoma, the state that jailed Brittany Poolaw, has few slots available for substance use treatment. Two-thirds of people who seek treatment for substance abuse disorders are unable to obtain it. The same system that prosecutes people for drug use deliberately fails to provide treatment and support for people struggling with substance use.
The situation is similar in the other states that have enacted fetal protection laws. The obvious conclusion is that laws that penalize pregnancy and the use of illegal substances are designed to police female bodies, not to protect either pregnant people or the children they bear.
Miscarriages are extremely common, despite public perception that pregnancy loss is rare. Approximately 10-20% of pregnancies confirmed by testing result in a miscarriage by 13 weeks gestational age, but estimates are as high as 31% to 50% when including individuals who miscarry before knowing they are pregnant. The March of Dimes, a nonprofit focused on prevention of birth defects and pregnancy loss, informs us that a significant number of “late” or “heavy” periods in sexually active women are, in fact, spontaneous abortions. In total, almost half of all conceptions end in spontaneous abortion. The true number is unknown because so many pregnancies end before the person knows they are pregnant.
The “War on Drugs” that started under the Reagan Administration in the 1980s has worsened pregnancy outcomes in the name of preventing them. Prosecutors across the country have targeted pregnant people accused of drug use, supposedly in the interest of protecting their fetuses.
According to the Drug Policy Alliance:
“19 states and the District of Columbia define prenatal exposure to drugs as sufficient evidence to make a finding of child maltreatment. Seven states consider prenatal exposure grounds to terminate parental rights when there was a prior child with prenatal exposure or when the pregnant person/parent does not participate in drug treatment.”
Pregnancy and immigration
Tactics used by the U.S. government against immigrants, both at the border and within the country, often result in the arrest, detention and deportation of pregnant people. Because the U.S. confers citizenship on anyone born within its borders or territories, if a child is born while in detention, that child is automatically a U.S. citizen. So, pregnant people are routinely turned away at the border when seeking asylum in the U.S.
U.S. Immigration and Customs Enforcement (ICE) detained pregnant women more than 4,600 times from 2016-2018. These highly vulnerable people often do not get adequate medical care (if they receive any care at all).
A lawyer described a case where a woman who was seven months pregnant was detained by Border Patrol. Her medication for high blood pressure was confiscated and she was held for over 24 hours without medical attention, despite repeated complaints and requests. Once transferred to the custody of the U.S. Marshals Service she was taken to a hospital, where staff noted the poor condition that she was in. Hospital staff protested the use of shackles on the woman during and after labor. Shackling during labor can cause complications such as decreased fetal heart rate or a hemorrhage. The presence of shackles may cause a delay if a caesarian section or other emergency procedures are indicated; a delay of even five minutes is sufficient to cause permanent brain damage in the baby and increased harm to the mother.
Causing greater harm
The criminalization of pregnant people puts both parent and fetus at greater risk by creating barriers to child custody, drug treatment, and prenatal care. It tears children from their mothers and thrusts them into the unique hell that is the U.S. foster care system, which costs billions of dollars per year – far more than safely reuniting families. The U.S. spent more than $9 billion last year on foster care and related expenses. This is money that could have been used to provide vital support to struggling families that could keep family units intact – rather than tearing families apart.
Inside U.S. prisons and jails, pregnant people are routinely shackled to the bed while they labor and give birth, a violation of established standards of obstetric care. They are denied the opportunity to hold or bond with their infants. Prisons and jails deny mothers the ability to breastfeed or express and store breast milk for their infants.
During the 1980s and 1990s, medical and social service personnel panicked over the number of children who were born to mothers who used drugs during their pregnancies. These children were said to be doomed to lives of physical and mental disability. But, 20 years later, many of the children who were perceived to be “at-risk” are proving the predictions wrong as young adults. The myth of the “crack baby” has been disproven by scientific research. Prenatal exposure to most drugs does not guarantee that a child will be developmentally disabled or require special services. The drugs most likely to cause pregnancy loss are legal medications that are routinely prescribed and administered by physicians.
Far from protecting women and fetuses, these laws have the opposite effects. They make women – particularly poor women of color – hesitant to seek medical care. The majority of people who have been charged under fetal protection laws are poor, Black, Indigenous or Latine. These are the same people who are at the highest risk of maternal and infant death, the very same women who have less access to prenatal care than white middle-class women.
Pregnancy and race
Adverse pregnancy outcomes differ by race. Research has shown that Black women are more likely to experience all types of pregnancy loss; including miscarriage, stillbirth, preterm birth and infant death; more often than white women. In addition to their babies being at increased risk of adverse outcomes, Black mothers themselves are three to four times more likely than white mothers to die of pregnancy-related complications.
The underlying causes that make Black women more susceptible to these risk factors are also related to various issues of racism and systemic inequality in healthcare. Even wealthy, famous Black women are at higher risk of maternal and infant death. Beyoncé and Serena Williams, two of the best-known and most affluent women in the United States, both suffered life-threatening pregnancy complications. They both relate stories of how they begged, pleaded and fought for medical personnel to pay attention to the problems they were having. Despite their money and fame, both women came close to death from very preventable issues. This is not unusual. Statistically, even affluent, highly-educated Black women have worse pregnancy outcomes than poor, uneducated white women.
Quality of care differs between racial groups. The medical care that Black women receive is not comparable to that of white women. In other words, there is a higher likelihood that white women will receive more effective medical care than Black women.
Writing in the California Law Review, Michele Goodwin states:
“Increasingly, state statutes are the primary means through which legal norms affecting low-income pregnant women’s autonomy, privacy, and liberty are introduced and shaped. Arrests, forced bed rests, compelled cesarean sections, and civil incarcerations of pregnant women in Alabama, Florida, Indiana, Iowa, Mississippi, New Mexico, South Carolina, Texas, Utah, and Wisconsin merely scratch the surface of a broad attack on pregnant women. This recent era of maternal policing reshapes physician and police interactions with pregnant women accused of violating fetal protection laws (FPLs); inspires (and sometimes requires) medical officials to breach confidentiality when treating pregnant women; motivates selective prosecution against poor women, particularly those of color; and evinces improper judicial deference to medical authority rather than law.”
Despite these widely known, scientifically proven facts, Black and Brown women are still disproportionately prosecuted for pregnancy loss. Black and white people use drugs at approximately the same rate, yet Black women are 10 times more likely to be reported by their doctors to child welfare agencies for drug use as compared to white women.
What we know
- Abortion rights are human rights.
- Pregnancy is more dangerous than abortion. Banning abortion nationwide would lead to a 21% increase in the number of pregnancy-related deaths overall and a 33% increase among Black women.
- Theocracies (societies whose laws are based upon religious principles) are anti-democratic and violate human rights.
- Laws that criminalize pregnancy and the postpartum period result in higher rates of mortality and morbidity for pregnant people and the children they bear.
- Instead of criminalizing pregnant people and sending them to prison, drug rehab could save billions of dollars and lives. Drug abuse education, prevention and treatment are more effective and far cheaper than criminalizing drug use, incarcerating people and removing children from their families to be placed in the expensive, dangerous and destructive foster care system.
- Fetal protection laws violate the Equal Protection Clause of the U.S. Constitution. They discriminate by:
- Imposing criminal liability on a pregnant person for actions that would not be criminal but for their pregnancy;
- Increasing the punishment for an offense based on how far along the pregnancy has progressed; and
- Treating the fetus as a person under the law and then charging the pregnant person with child endangerment or feticide.
The criminalization of pregnancy violates the most basic human rights: the right to freedom; equality under the law; protection from unjust laws; and health care, mental health care and appropriate care for an unborn child. Its laws are created and applied in a way that discriminates against people based on their race, gender and class. These practices represent a miscarriage of justice.
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