When Pregnancy is Criminal

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By Tracy G. Cassels

An article just came out ahead of print in the Journal of Health Politics, Policy and Law that deserves some discussion.  It is an examination of criminal cases in the United States between 1973 and 2005 in which a woman being pregnant was a necessary factor in depriving a woman of physical liberty; that is, the detention of these women was predicated upon their pregnancy.  Notably, 2005 was only selected in order to highlight cases that had all been completed – they had run their course through the legal system – in no way does it suggest this problem has somehow ceased.

How many cases did they find?  413.  And this is an undercount due to the limitations of obtaining the necessary data for such a review.

Four hundred and thirteen times in which a woman was detained due to some aspect of her pregnancy.

And of course there is the overarching issue that the vast majority of these cases are against women of lower socio-economic status (71%) and of minority ethnic decent (59%; though in the South, African American women alone make up 75% of the cases).

(Are you angry?)

If you told me that pregnant women were being detained and I didn’t read as much about this stuff as I do, I would probably think it had to do with potential harm being caused to the fetus via illicit drugs, right?  I mean, the drugs are illegal and they may only have been discovered due to the pregnancy status and thus the arrest.  But that’s not what these cases all are.  In fact, 20% were cases in which a woman “refused treatment orders” and another 7% were “forced medical interventions”.  And in 64% of the cases there was NO reported complications or adverse outcomes for the fetus or infant.  But moms were charged anyway.

So what are these cases?

One case highlighted in the piece is of a 20-year-old pregnant woman who went to a clinic because she had an addiction to Oxycontin and was looking for assistance.  Instead of assistance, the police were called and she was forcibly taken to a psychiatric ward an hour away from her husband and 2-year-old son under the “cocaine mom” laws in her state.  She was not given treatment there for her addiction, but instead was given multiple other drugs (including Xanax) and received no prenatal care.  Approximately two weeks later, during a hearing about her incarceration, the doctors could provide no status update on the fetus, as no one had bothered to check.  At a later hearing, doctors testified that Oxycontin did not pose a risk to the developing fetus and thus this mother was in fact not harming her child (not to mention the fact that she went to find help).  She was then released from the psychiatric ward, but was monitored for her entire pregnancy (including providing urine samples) and was fired from her job from the instance.  In another drug case, a homeless woman was arrested for reckless endangerment of her unborn child under the claim that she was inhaling pain fumes.  After two weeks in jail, she was given a release to obtain an abortion and then charges were dropped.

A second highlighted case involves a mother who was in labour at home, planning a vaginal delivery after a c-section, when her doctors called the sheriff and arranged an emergency court hearing claiming she was putting her baby at risk by attempting a VBAC.  The mother, in labour, had the sheriff arrive at her house, her legs were strapped together, and she was taken into custody and forced to a hospital.  Her and her husband were given no legal counsel, no one to represent them, and were allowed to present their views as the mother was being prepped for surgery against her will.  She was compelled to undergo the operation and when she tried to sue after the fact in civil court, the court held that she did not have the grounds to do so.  Oh yeah – she later went on to have two successful V2BACs.

(Are you angry now?)

Although some people believe these cases tread solely around the abortion issue, they cross abortion lines.  In some, because a woman obtained an abortion or had what is termed a “self-abortion”, she was deprived of her physical liberty.  In others, she was taken into custody as a way to force an abortion on a woman who was non-consenting.  For many, having had a stillbirth or miscarriage led to their arrest and charges with manslaughter or even murder – even when there were known causes outside of the mother’s control (such as the use of Depo-Provera administered earlier).  One woman whose infant died two weeks after birth was arrested and charged with manslaughter due to a cocaine habit that the state claimed was the cause of her infant’s death.  She plead to criminally negligent homicide and only later did the State reveal that the autopsy was erroneous and in reality, the death was in no way related to cocaine.

Even when drugs are mentioned, they often mask what truly happened.  In the case of one woman, police were called and told that the woman had been drinking (she was allegedly intoxicated when she arrived at the hospital two days before she was “scheduled to deliver her baby”) and smoking cigarettes (both legal activities, even if not recommended during pregnancy) and was charged with attempted first-degree intentional homicide and first-degree reckless injury.  However, the police were only called after the mother refused to consent to fetal monitoring and a caesarean section.

(If you aren’t angry now, this isn’t the site for you.)

We have a problem.  Or rather, one could say the United States has a problem, but hopefully it’s one we all care about.  Laws designed to protect a mother and her baby from unwanted harm by others are being used to control, manipulate, and remove the power women have over their bodies and pregnancies.  Oftentimes when there is no harm to the infant at all.  I admit I struggle with a mother who knows she is pregnant and continues to use drugs that she knows will affect her infant without seeking help.  I think it’s morally repugnant and many times I feel treatment should be forced (treatment, not jail) and even sometimes I think it should be illegal.  But if this is the slope of these laws, then I cannot support them.  At all.

Doctors should have no right to force their opinions on a pregnant mother about what she “needs” in her pregnancy.  They are there to assist.  They should not be allowed to force women into birth interventions and surgeries they do not consent to.  When a woman seeks treatment for a problem, she should be supported to the best of everyone’s capacity, not arrested and thrown to the wolves.  When personhood bills come up in US states and people argue that they can lead to negative effects on pregnant mothers who have miscarried or suffer a stillbirth, proponents of these bills say it’s a scare tactic.  I think not.  I think this study shows us how real and scary the reality is of being a pregnant woman in the United States today.  Especially if you are a poor pregnant woman.

These cases matter to everyone because they instill a collective fear in women.  Refuse your doctor and risk being arrested, thrown into a mental hospital, and even having your child taken away from you.  All in the name of giving rights to unborn children.  Well, how right is it for a child to be separated from his or her mother because she decided to trust herself over a doctor?  Or because she sought help for a problem in hopes of not harming her child down the line?  No mother should be charged for her legal right to abort and no woman should ever be coerced into aborting her child in order to avoid criminal charges.

It’s sick.  It’s wrong.  It’s morally repugnant.  And I hate to say that I have no idea how to fix it.  I hate writing anything when I don’t have some suggestion on how to fix things, no matter how little or impractical to some the idea might be.  In a fit of perfect timing, however, I was reminded last night by Jen over at Our Muddy Boots that sometimes we don’t have to have an answer.  We just need to present the information to people so they can get as outraged as us and hopefully someone in there does have an answer.  So with that, I hope that enough people hear these cases and realize the slope that we are currently on and that someone will find a way to right things.  Someone can find a way to bring balance because many women also need some of these laws.  They need justice when they are harmed by a third party, miscarrying a wanted and cared for child.  But what is happening in the United States is NOT working.

Just because a women is pregnant does not mean she ceases to exist.  Her rights do not cease to exist.  Remember that.

 [Photo credit: Darrell Sapp/Post-Gazette]

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Comments

  1. says

    This is such a great article, thank you so much for writing this. I think people in the midst of the abortion law debates could do with considering how legislature will affect pregnant women in general.

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