Policing Pregnant Women

The Pregnancy Justice organization (formerly National Advocates for Pregnant Women) released their updated report on the criminalization of pregnant women in September.  Kavattur, Purvaja S, et al. (Somjen Frazer, Abby El- Shafei, Kayt Tiskus, Laura Laderman, Lindsey Hull, Fikayo Walter-Johnson, Dana Sussman, and Lynn M. Paltrow) The Rise of Pregnancy Criminalization: A Pregnancy Justice Report, New York: Pregnancy Justice (2023). 

Things have not improved.  From Roe in 1973 to Dobbs in 2022 more than 1,800 women have been criminally penalized and lost their rights on the pretext of protecting “unborn life” which is obviously more valuable than the already born life in front of the cops.  Since 2013, the pace has increased.  Women have been arrested and jailed for miscarriages, for self-induced abortions when abortions were legal, for using medical herbs for abortion (as women have done for centuries), and for having a birth at home. (Confronting Pregnancy Criminalization: A Practical Guide for Healthcare Providers, Lawyers, Medical Examiners, Child Welfare Workers, and Policymakers, Pregnancy Justice (June 23, 2022), https://www.pregnancyjusticeus.org/wp-content/uploads/2022/12/202211-PJ- Toolkit-Update-2.pdf)

Three-quarters of the cases occurred in a small number of states that had expanded their definition of child abuse to fetuses, fertilized eggs, and embryos: Alabama (46.5%), South Carolina (13.0%), Tennessee (9.4%), Oklahoma (8.1%), and Mississippi (2.6%).

More than half the states require reporting to authorities about women’s use of alcohol or drugs, even legal drugs, during pregnancy as being civil child abuse or neglect thus leading to women’s surveillance.   We have known for decades that reporting harms women because they then do not seek treatment in order to avoid criminalization. Ninety percent of the cases involve allegations of substance use – the “war on drugs” has been expanded to be a war on women – Black, Brown, and poor.  The percentage of white women has increased (related to the opioid epidemic) and white women are now overrepresented in those arrested. Almost 85% of the women in total were “indigent.” One-quarter of cases involved legal drugs such as nicotine, alcohol, or prescription drugs.

It doesn’t matter if the child had any negative health impact – 66% did not. No science shows that “crack babies” in fact had negative outcomes or that methamphetamine use during pregnancy harms fetuses or the pregnancy, nor does cannabis.  Withdrawal symptoms may occur, but they do not cause long term developmental problems.

Alabama is the leader in arresting women with almost half the arrests.  Arizona had 3 in this time span while Alabama had 649.  Over half the arrests were of women in the age bracket of 30-39.  Reports made by medical professionals or hospital-based social workers were the most common route to arrest.  The problem with that is then women stay away from medical care when they most need it.

Most of the charges were felonies ranging from child abuse to drug possession to failure to report.  Four of five women were charged with criminal child neglect, abuse, and/or endangerment including the scientifically unfounded claim of drug delivery via the umbilical cord or breast milk.  In Oklahoma, a 19-year-old had a miscarriage and though the doctor testified to six potential reasons for the miscarriage, she was convicted for use of methamphetamine as the cause and sentenced to four years.  In South Carolina, a woman went to the hospital due to pain and delivered a stillbirth. She was charged with homicide because she had a small amount of cocaine in her body even though cocaine does not cause pregnancy loss. In Georgia, a woman took the abortion pill and was charged with murder.  It was later dropped since there was no law to charge a pregnant woman with abortion.  But she had to go through the criminal process for several years.  In Arkansas, a woman had a stillbirth at home and in a panic put the twins in a suitcase by the side of the road.  She was sentenced to four years. Another woman in Arkansas took the fetal remains to the hospital after a stillbirth at home and she was arrested too.  She was charged with “concealing a birth” which was reversed on appeal. Damned if you do; damned if you don’t.

In 95.5% of the cases, substance abuse was given as the reason for arrest.  The three top drugs of choice were meth, cannabis, and cocaine.  Meth was most prevalent among indigenous women; cocaine more prevalent among Black women; and cannabis equally prevalent among white and indigenous women. One-third of the woman remained in jail unable to meet bail.  The average bail was $10,000 – an amount few poor women can summon. In two-thirds of the cases the women pleaded to the original or lesser charge.  But 16% went to trial and lost. The remaining 18% went to trial and won – sooner or later.  Four of five cases resulted in her being jailed between 12-48 months. Three in five of the arrests resulted in a prison sentence for the woman.

The problem of jailing for substance use is that rather than treatment, she gets jail. In a Michigan case, the judge revoked her probation and jailed her claiming the fetus had a better chance of not encountering drugs in jail.  Apparently, he lives in some delusional world if he thinks there are no drugs in jail.  She won on appeal, but she had already spent her entire pregnancy in jail.

Racism in medical settings is well documented and results in horrific mortality rates for pregnant Black women.  The U.S. maternal mortality rate is the highest among peer nations, and it is getting worse. Not only is the U.S. maternal mortality rate unacceptably high, but it is also marked by severe racial disparities. Black women are three times more likely to die in pregnancy than a white woman.  During a pregnancy they are more likely to be drug tested, surveilled, and separated from their children.  I have had cases where a Scottsdale hospital routinely blood tested Black women for illegal drugs but did not blood test white women for cannabis or alcohol.  Yet one-fourth of the cases involved legal drugs. 

The states with the highest criminalization also have the worst maternal mortality rates – the Bible belt does not care about women or children.  All five states with the most arrests rank among the top 11 highest maternal mortality.  Medical groups have opposed this practice for years because it makes care harder to get and means women do not trust providers.  

Yet forty-four states and D.C. have laws granting fetuses more rights than women. Five states allow civil detention for pregnant people accused of substance use.  Four of those states — the Dakotas, Oklahoma and Minnesota — require “clear and convincing evidence.” Wisconsin requires only “probable cause.” That standard means courts need only the “suspicion” of drug use to order commitment. An attorney is appointed for the fetus but not the confined woman who can be forced into drug treatment.

In the Loertscher case, the mother fought them to the end and won her point that the law was unconstitutional – but she had moved out of state to avoid the horrific Wisconsin system so they mooted the judgment and the law continues.  I’m from Wisconsin and went to law school there and find this contrary to everything I learned. But when I grew up, Wisconsin was a progressive state.  Then the Republicans got ahold of it and destroyed it.

Today Wisconsin investigates about a case a day regarding pregnant women using drugs including calls from a batterer husband or boyfriend seeking to punish her and make her lose her job, her apartment, and her freedom.  One woman was in shackles even after she tested negative. I guess the guards were afraid she was contagious.  One public defender called it kidnapping by the state for women who have struggled with addition.

On May 2, 2023, a teen and his mother were in fact charged with kidnapping in Idaho when they took a teen girl, K.B. to another state to have an abortion.  The mother of K.B. reported the “crime.”  The “abortion trafficking law” that was passed in Idaho is up on appeal, so they used the language but not the number or name of that bill as a “test case.”  

Of course this violates the right of the girl to make up her own mind about her own body, and her constitutional right to travel.  Washington, Colorado, and Oregon have shield laws to prevent collaboration with the police from a state chasing down a woman exercising her right to control her own body.  But the Idaho police used geo-location data from corporate data harvesting to find her location. That is why cell phones and GPS are so dangerous in today’s hyper surveillance society. 

The law supports none of this. As early as 1891 in Union Pac. Ry. Co v. Botsford, 141 U.S. 250 (1891) the Supreme Court said that, “No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley: ‘The right to one’s person may be said to be a right of complete immunity; to be let alone.’”  So the Supreme Court lied in the Dobbs decision when they said there is no history in the U.S. of women having autonomy over their own bodies.

Botsford had been injured in a train and the company wanted her to undergo a medical examination in the presence of her own doctor and the attorneys.  She said no. The court agreed. The court said it was an indignity, an assault, and a trespass to compel someone, especially a woman, to submit her body without her permission to a stranger to be touched.  That happens during pregnancy and birth. The court said such a rule has never existed in the U.S. and lists several cases that confirm that. Yet these cases were not mentioned in the Dobbs decision.

Nearly a hundred years later, a Pennsylvania court (McFall v. Shimp, 10 Pa. D. & C. 3d 90, (1978), held that a man who suffered from a rare bone marrow disease could not compel his relative, the only possible donor, to donate bone marrow to save his life. The common law has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save another human being or to rescue anyone. While embryos are not humans, even if they were, a woman is not obligated to give aid or take actions for them.

The court said that while this may sound cruel, it’s not because if we found that the individual did not possess control over the sanctity of their own body, then we have no rules where we can draw the line of what a person must sacrifice for another or for society.  Powerless people would be forced to submit to medical procedures of all kinds – such as the gynecological experiments done without anesthesia on Black women, twin experiments in Nazi concentration camps, sterilization without consent done on Black and Hispanic in Los Angeles in the 1970s.  “For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence….  Such would raise the spectre of the swastika and the Inquisition, reminiscent of the horrors this portends.” Unfortunately the U.S. has already sunk its teeth into the jugular veins of women and is doing it again.

Likewise in 1996, the Supreme Court of Connecticut (The Stamford Hospital v. Vega, 674 A. 2d 821, 236 Conn. 646, (1996) ruled that a Jehovah Witness who gave birth and then hemorrhaged could not be forced to accept a transfusion even if it saved her life. The court did not rule on the constitutional question but said that she had a common law right of bodily self-determination.  

The hospital argued that the baby, who was healthy, was also its patient and they had a legitimate interest in protecting the welfare of that third party apparently by keeping the mother alive.  In the abortion case, some medical people argue that they must protect the zygote.  But the court in Stamford found that the interest of the medical establishment does not go that far.  It does not outweigh the living persons right to bodily self-determination that is rooted in the fundamental legal tradition of a person’s self-determination.  Yet this is not applied today to pregnant women. The question of whether women are persons was decided long ago – we are.

The court said that deeply personal decisions of obvious and overwhelming finality should be left up to the woman (citing Cruzan v. Director 497 U.S. 281).  Under common law there is a right to refuse medical treatment and a right to informed consent. The state has no right to override a woman’s decision and must respect and protect her right of bodily self-determination.

The Dobbs decision was a purely political one based on deeply flawed arguments and false historical analogies.  But it makes its stark point that fascism is based on control and control of women is one of the first objectives. We cannot let it happen.