Lynn M. Paltrow and Jeanne Flavin published an article in the Journal of Health Politics in which they discuss the consequences of perceived personhood status for foetuses on the rights of women. A number of US states have passed or are considering such legislation and some members of the Conservative Party of Canada would like Canada to move in that direction as well.
This is quite long, and to jump to the conclusion, women’s rights, and disproportionally the rights of women of colour, are being abrogated while the right’s of their foetuses take precedence. In many cases this is both medically unnecessary and harmful to the health of both. In addition, the threat of enforced incarceration can cause women at risk to forgo prenatal, and sometimes postnatal, care altogether.
Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health (pdf). Here are some excerpts from their article:
Methodology: Our study examines cases in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of her liberty in its most concrete sense: physical liberty. Any case in which authority was sought or obtained to restrain a pregnant woman or massively curtail her physical liberty was eligible for inclusion. Thus, whether under cover of criminal or civil laws, all the following fit under the study’s rubric: arrests; incarceration in jails and prisons; increases in prison or jail sentences; detentions in hospitals, mental institutions, and treatment programs; and forced medical interventions, including surgery.
In most cases pregnancy provided a “but for” factor, meaning that but for the pregnancy, the action taken against the woman would not have occurred. In seven cases, efforts to deny women their liberty also included allegations related to actions a woman took after she had delivered a baby and was no longer pregnant.
Inclusion and undercounting: In general, it is not possible to identify and document cases that have not resulted in published court opinions and that were neither reported by the media nor brought to public attention by clients, counsel, or other concerned parties. At least five kinds of cases are not readily identifiable through database or other public records searches:
- Although it is possible to search some criminal databases for certain crimes, no state has statutory criminal law that specifically permits the arrest or detention of women with regard to their pregnancies, making it impossible to identify such cases through criminal database searches;
- Similarly, there is no searchable database that records decisions to sentence a woman to incarceration because she is pregnant;
- Cases in which pregnant women, including teenagers, have been deprived of their liberty through family and juvenile court proceedings or through civil commitment proceedings are confidential;
- Most cases involving hospital detentions and compelled treatment do not result in reported opinions or media coverage, making it unlikely that such cases would be identifiable; and
- There is no comprehensive source that can be searched for decisions from Native American tribal courts, and many of the decisions from those courts are not published.
Also does not include many pregnant women confined to mental institutions for addiction.
Five Illustrative Cases:
1. Regina McKnight:
In South Carolina, Regina McKnight, a twenty-one-year-old African -American woman, unexpectedly suffered a stillbirth. Although it would later be shown that the stillbirth was the result of an infection, McKnight was arrested and charged with homicide by child abuse. The state alleged that McKnight caused the stillbirth as a result of her cocaine use….
To avoid being retried and possibly sentenced to an even longer term, McKnight pleaded guilty to manslaughter and was released from prison. She had already served eight years of her original sentence.
2: Laura Pemberton:
Laura Pemberton, a white woman, was in active labor at her home in Florida. Doctors, aware of this, believed that she was posing a risk to the life of her unborn child by attempting to have a vaginal birth after having had a previous cesarean surgery.
Following a hearing at which she and her husband were denied legal counsel, the procedure was performed. Semberton subsequently gave birth vaginally to three more children, calling into question the medical predictions of harm from a VBAC on which the court had relied.
3: Rachael Lowe:
Rachael Lowe, a twenty-year-old pregnant woman, voluntarily went to Waukesha Memorial Hospital in Wisconsin to seek help for her addiction to the opiate Oxycontin. Some hospital staff responded by reporting Lowe to state authorities under Wisconsin’s “cocaine mom” law, a statute in the Children’s Code that allowed the state to take a pregnant woman into custody if it believed that the “expectant mother habitually lacks self-control in the use of alcohol beverages, controlled substances or controlled substance analogs.”
As a result, Lowe was forcibly taken to St. Luke’s Hospital in Racine, more than an hour away from where she lived with her husband and two-year-old son. At St. Luke’s she was held against her will in the psychiatric ward. While there, she received no prenatal care and was prescribed numerous medications, including Xanax.
When a subsequent hearing was held to determine the legality of her incarceration, a doctor testified that Lowe’s addiction posed no significant risk to the health of the fetus.
As a result of the intervention, Lowe’s husband had to take a leave of absence from his job, and Lowe was fired from hers.
4: Martina Greywind:
Martina Greywind, a twenty-eight-ear-old homeless Native American woman from Fargo, North Dakota, was arrested when she was approximately twelve weeks pregnant. She was charged with reckless endangerment, based on the claim that by inhaling paint fumes she was creating a substantial risk of serious bodily injury or death to her unborn child. After spending approximately two weeks in the Cass County Jail, Greywind was able to obtain release for a medical appointment. At that appointment Greywind obtained an abortion. According to news reports, the prosecutor in the case stated that since Greywind had had an abortion, it was “no longer worth the time or expense to prosecute her”.
5: Michelle Marie Greenup:
In Louisiana, Michelle Marie Greenup, a twenty-six-year-old African American woman, went to a hospital complaining of bleeding and stomach pain. Doctors suspected that she had recently given birth and contacted law enforcement authorities. After repeated police interrogations, Greenup “confessed” that the baby was born alive and it died because she had failed to provide it with proper care. Greenup was charged with second-degree murder and incarcerated. Eventually counsel for Greennup obtained her medical records, which revealed that the fetus could not have been older than between eleven to fifteen weeks and that prior to the miscarriage Greenup had been given Depo-provera, a contraceptive injection that may cause a miscarriage if administered to a woman who is already pregnant. Greenup was finally released, but only after she agreed to plead guilty to a misdemeanor violation of a public health law that regulates disposal of human remains. There is no indication that the human remains law was intended to apply to pregnant women confronted with a miscarriage.
Nearly three-fourths of cases brought against African Americans originated in the South, compared with only half of the cases involving white women. Racial disparities are even more pronounced in particular states. Between 1973 and 2005 African Americans in Florida made up approximately 15 percent of the state’s population and whites comprised 81 percent. Yet approximately three-fourths of Florida’s cases were brought against African American women, while only 22 percent were brought against white women.
In South Carolina, African Americans made up 30 percent of the state’s population, and 68 percent of the population base was white. Yet 74 percent of the cases in the state were brought against African American women and only 25 percent against white women.
Although every pregnancy in this report involved a man, the father or the woman’s male partner was mentioned in only 23 percent of cases. Information available in approximately one in ten cases (n = 36) mentioned violence against the pregnant woman
In South Carolina a twenty-three-year-old African American woman was charged with homicide by child abuse after she experienced a stillbirth. The charging documents, including the arrest warrant and incident report, alleged that her use of drugs and alcohol caused the stillbirth. Further research into her case revealed that she had used a small amount of powder cocaine, consumed alcohol, and taken eight Tylenol in an effort to commit suicide on her twenty-third birthday.
Diane Zimmerman, a thirty-four-year-old white woman from Franksville, Wisconsin, had been drinking alcohol and was allegedly intoxicated when she was brought to St. Luke’s Hospital two days before she was scheduled to deliver her baby. Declining a “biophysical profile” at a prenatal care appointment a week earlier, as well as drinking alcohol and smoking cigarettes while pregnant, all legal activities, were mentioned in the criminal complaint describing the grounds for her arrest on charges of attempted first-degree intentional homicide and first-degree reckless injury. The case received widespread national attention, focusing on Zimmerman’s alcohol use and the claim that she wanted to “kill” her unborn child through her use of alcohol. A review of the case reveals something unreported in the media: medical staff decided to contact the police and characterize her as a criminal only after she refused to consent to fetal monitoring and cesarean surgery. Although Zimmerman “kept talking about a gentleman and how he was abusing her,” neither the nurses nor the doctors apparently saw this information as bearing on why Zimmerman might object to being touched by the strangers who made up the medical staff.
Eighty-four percent (n = 348) of cases involved an allegation that the woman, in addition to continuing her pregnancy, had used an illegal drug. Two hundred and eighty-two cases identified cocaine as one of drugs being used, 51 identified methamphetamine or amphetamines, 23 mentioned heroin or another opiate, and 43 identified marijuana. In 6 cases marijuana was the only illegal drug mentioned. More than half the 348 cases (n = 177) in which a woman was identified as having used an illegal drug also specifically referred to other factors, in addition to the pregnancy, as part of the rationale or circumstances justifying the arrest or detention.
Other factors explicitly described in arrest warrants and other legal documents justifying state intervention in cases that also involved an allegation of drug use included the fact that the pregnant woman had a sexually transmitted infection,28 was HIV positive,29 or gave birth at home or in another setting outside a hospital. In one case the state indicated that it would use the fact that the woman had refused offers of voluntary sterilization in support of its prosecution.
Sixteen percent of the cases (n = 65) involved no allegation that the woman had used an illegal, criminalized drug. These include cases in which women were deprived of their liberty based on claims that they had not obtained prenatal care,34 had mental illness,35 or had gestational diabetes, or because they had suffered a pregnancy loss.37 In fifteen cases alcohol was the only drug mentioned. Thirty of these cases involved efforts to force women to submit without consent to medical interventions. These forced interventions included pregnant women who had diabetes or sought to have a vaginal birth and refused to undergo cesarean surgery or other surgical intervention, those who refused to submit to a
blood transfusion, and one who refused to allow a public health nurse who had been appointed as a guardian ad litem for the fetus to monitor the pregnancy, “check on the welfare of the unborn child,” and provide any medical services that the nurse deemed necessary.
In eight cases pregnant women were alleged to have self-induced an abortion that the state claimed violated the state’s abortion laws. In two cases state action was used to detain women who expressed an intention to have an abortion, and in one of those the woman’s incarceration prevented her from having an abortion.
In two out of three cases no adverse pregnancy outcome was reported. In many cases criminal charges rested on the claim that there was a risk of harm or a positive drug test but no actual evidence of harm. Similarly, in numerous cases where court orders were sought to force medical interventions, a risk of harm was identified that did not materialize.
The lack of scientific evidence was especially clear in the Geralyn Susan Grubbs case. Grubbs, a twenty-three-year-old white woman, gave birth to a son in Alaska. Two weeks after birth, the baby died unexpectedly. The state asserted that Grubbs’s use of cocaine while pregnant caused her son’s death and charged her with manslaughter as well as two drug-related offenses. Facing a potential thirty-year sentence, Grubbs accepted a plea bargain to the lesser charge of criminally negligent homicide. Grubbs’s conviction and sentence remained in full force even though, in response to a separate civil suit, the state admitted that it had since discovered that the autopsy, which had formed the basis of Grubbs’s conviction, was erroneous and that cocaine was not the cause of the infant’s death
Julie Starks, a twenty-five-year-old white pregnant woman in Oklahoma, was arrested in a trailer that was allegedly being used, or that had once been used, to manufacture methamphetamine. In addition to arresting Starks and charging her with manufacturing methamphetamine, the state began proceedings in the Rogers County juvenile court to declare her unborn child deprived (in changes due to parental neglect, abuse, cruelty, or depravity). The juvenile court took emergency custody of Starks’s fetus and also raised her bond from the $25,000 set by the criminal court to $200,000, with the added condition that if Starks posted bond she would be placed in a foster home until she gave birth. While incarcerated in the county jail, Starks experienced dehydration and premature labor, developed urinary tract infections and sinus problems, and lost twelve pounds. She spent more than a month in jail before the Oklahoma Supreme Court ruled that the juvenile court judge’s order raising Starks’s bond to $200,000 was “an unauthorized application of judicial force.
Because there was no evidence to support the state’s claim that Starks was using any illegal drugs while pregnant, the case focused on the argument that while pregnant, she had “inhaled” dangerous chemicals allegedly used in the manufacture of methamphetamine. The state was allowed to rely on testimony from local law enforcement officials to support this claim. For example, a police sergeant agreed with the prosecutor that he did not “need a medical degree” to testify that a pregnant woman should not have been in the environment in which they found her. The prosecutor argued that it did “not take a rocket scientist, so to speak, to figure out that these kinds of chemicals would be harmful to not only the
mother but the unborn child,” and was allowed to make this claim without any scientific experts at all. The jury reached a verdict, later overturned, that the fetus, while still inside Stark, had been “deprived.”
Criminal Charges and Other Efforts to Deprive Pregnant Women of Their Liberty:
Overwhelmingly, the deprivations of liberty described here occurred in spite of a lack of legislative authority, in defiance of numerous and significant appellate court decisions dismissing or overturning such actions,and contrary to the extraordinary consensus by public health organizations, medical groups, and experts that such actions undermine rather than further maternal, fetal, and child health.
The American Medical Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists, for example, have concluded that threats of arrest and punishment deter women from care and from speaking openly with their doctors. The American Medical Association statement also notes that such threats could pressure some women to have unwanted abortions rather than risk being subject to criminal penalties.
The majority relying on interpretations and applications of criminal laws that were never intended to be used to punish women in relationship to their own pregnancies. In 86 percent of the cases (n = 354), the efforts to deprive pregnant women of their liberty occurred through the use of existing criminal statutes intended for other purposes. In those cases the charges most frequently filed were child abuse or child endangerment (n = 204). Sixty-eight cases involved women who experienced miscarriage, still-birth, or infant death. In all but six cases, prosecutors attributed the loss entirely to actions or inactions that occurred during the woman’s pregnancy. In forty-eight of those cases, women were charged under variations of the state’s homicide laws, including such crimes as feticide, manslaughter, reckless homicide, homicide by child abuse, and first d egree murder. In four cases in which a woman’s actions were described as inducing a self-abortion, she was also charged under murder or manslaughter statutes
Identifying the Underlying Legal Theory:
In virtually every case in which we could identify the underlying legal theory, we found it to be the same as that asserted by proponents of personhood measures: namely that the fertilized egg, embryo, or fetus should be treated as if it were completely legally separate from the pregnant woman herself. Prosecutors, judges, and hospital counsel argued that the legal authority for their actions came directly or indirectly from feticide statutes that treat the unborn as legally separate from pregnant women, state abortion laws that include language similar to personhood measures, and Roe v. Wade, misrepresented as holding that fetuses, after viability, may be treated as separate persons.
Today, thirty-eight states and the federal government have passed feticide or unborn victims of violence acts or amended their murder statutes to include the unborn. Such laws make it a crime to cause harm to a “child in utero” and recognize everything from a zygote to a fetus as an independent “victim,” with legal rights distinct from the woman who has been harmed. These laws are generally passed in the wake of a violent attack on a pregnant woman and, as in Texas, are described as creating “a wall of protection for pregnant women and their unborn children” These laws, however, have also been used to provide the purported authority for arresting pregnant women themselves.
In Utah a feticide law was used as the basis for arresting and charging Melissa Rowland. Rowland gave birth to twins, one of whom was stillborn. Rowland was arrested on charges of criminal homicide, a first-degree felony, based on the claim that she had caused the stillbirth by refusing to have cesarean surgery two weeks earlier.
Texas’s feticide law, enacted as the Prenatal Protection Act, was used in precisely this way. As the Austin Chronicle reported, “The bill passed, was signed into law by Gov. Rick Perry, and took effect on Sept. 1, 2003. A mere three weeks later, 47th District Attorney Rebecca King (prosecuting in Potter and Armstrong counties) penned a letter to ‘All Physicians Practicing in Potter County’ — Amarillo — informing them that under SB 319 ‘it is now a legal requirement for anyone to report a pregnant woman who is using or has used illegal narcotics during her pregnancy’. ”
Rather than challenge this demand from the district attorney, health care providers complied. As a result, more than fifty Potter County women were reported, charged with crimes, and in many cases incarcerated. Some of these arrests were challenged. In 2006, a Texas Court of Appeals finally held that the Prenatal Protection Act did not authorize the arrests. In spite of this decision, however, some of the
women were incarcerated for years while their cases worked their way through the court system.
Antiabortion statutes that include statements of separate rights for the unborn, similar to those asserted by personhood measures, are also routinely used to justify arrests, detentions, and forced surgeries on women who had no intention of ending a pregnancy. For example, the 1986 Missouri Abortion Act includes a preamble stating that life begins at conception and that “the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state.” Although the statute contains an explicit provision protecting pregnant women from punishment, Missouri prosecutors have used the law to justify the arrests of scores of pregnant women, including one who admitted to using marijuana once while she was pregnant and another who drank alcohol. An Illinois abortion law stating that “an unborn child is a human being from the time of conception and is, therefore, a legal person for the purposes of the unborn child’s right to life” was cited as authority for forcibly restraining, overpowering, and sedating a pregnant woman in order to carry out a blood transfusion she had refused.
In Roe v. Wade, the US Supreme Court explicitly rejected the claim that fetuses, even after attaining viability, are separate legal persons with rights independent of the pregnant women who carry, nurture, and sustain them. Still, consistent with the goals of personhood measures, prosecutors, hospital attorneys, and judges frequently misrepresent the decision to stand for the opposite meaning. They claim that Roe instead establishes that viable fetuses must be treated as legal persons fully separate from the pregnant woman. This misstatement of Roe’s actual holding has been used in numerous cases as authority for depriving pregnant women of their liberty.
A Massachusetts trial-level court relied on this distortion of Roe when it ordered Rebecca Corneau, a thirty-two-year-old white woman, imprisoned so the state could force her to undergo medical examinations over her religious objections. In Pennsylvania a hospital sought a court order to force Amber Marlowe, a twenty-five-year-old white woman, to undergo cesarean surgery. Counsel for the hospital cited Roe for the proposition that “Baby Doe, a full term viable fetus, has certain rights, including the right to have decisions made for it, independent of its parents, regarding its health and survival.” The court granted the order, awarding the hospital custody of a fetus before, during, and after delivery and giving the hospital the right to force Marlowe to undergo cesarean surgery without her consent.
In other words, where prosecutors, judges, and other state actors have articulated legal arguments for depriving pregnant women of their liberty, they are the same as those made in support of personhood measures; both rely on the idea that state actors should be empowered to treat fertilized eggs, embryos, and fetuses as completely, legally separate from the pregnant women.
Interventions in Health Care Settings and the Role of Medical Professionals
Although it is often presumed that medical information is confidential and rigorously protected by constitutional and statutory privacy protections as well as principles of medical ethics, cases we have identified challenge that assumption. Similarly, the results of those reports, including bedside interrogations by police and other state authorities, likely contradict most medical patients’ expectations of privacy and humane treatment.
Mandated reporting and civil child welfare responses deserve more attention than can be provided here. Instead, we focus on our findings indicating a wide variety of disclosures, some of which are clearly prohibited by law and all of which challenge the idea that medical and public health approaches are distinct from law enforcement approaches addressing drug use and maternal, fetal, and child health issues.
In 112 cases, the disclosure of information that led to the arrest, detention, or forced intervention was made by health care, drug treatment, or social work professionals, including doctors,85 nurses, mid-wives, hospital social workers,88 hospital administrators, and drug treatment counselors (Dube 1998). In at least 47 cases, health care and hospital- ased social work professionals disclosed confidential information about pregnant women to child welfare or social service authorities, who in turn reported the case to the police. Hospital-based health care providers and social workers appear more likely to disclose information about patients of color.
In some cases hospital medical staff have specifically collaborated with police and prosecutors to develop a coordinated system of searching pregnant women for evidence of illegal drug use, reporting women who test positive to the police, and helping the police carry out arrests of the hospitalized women.
In Tennessee, Anita Gail Watkins, a forty-three-year-old African American woman, was reported to the Department of Human Services (DHS) after she confided in her doctor that she had used cocaine before the birth of her son. A doctor at the hospital explained that “our goal from a medical standpoint is the best outcome for the infant. When there is evidence of drug use, we notify DHS. Where the trail goes from there is not up to us.” The disclosure to DHS led to a Clarksville Police Department detective, who arrested Watkins and charged her with the crime of reckless endangerment
Sally Hughes DeJesus, a twenty-eight-year-old white woman from North Carolina, experienced a relapse and used cocaine after eleven months of abstinence. She told her midwife what had happened, reporting that “I told her I needed help. . . . I was afraid for my baby”. According to a news story, the midwife told the hospital where DeJesus was having the baby about her drug use. When the doctors there performed a drug test on the healthy newborn and found that it had been exposed prenatally to cocaine, they called the police. Following this report, “As DeJesus lay recuperating in her hospital room in Henderson County, North Carolina, sheriffs marched in to interrogate her”. She was then charged with felonious child abuse. Cases in this study reveal that women who had recently given birth, suffered a stillbirth, or were believed to have self-induced an abortion were subjected to bedside interrogations. Women have been interrogated while still experiencing the effects of sedatives given during cesarean surgery. In one case, police were called so quickly that they were present when the woman was informed she had lost the pregnancy.
In many cases, hospital staff disclosed information to police and prosecutors despite principles of patient confidentiality and apparently without any court order or other legal authority requiring them to do so.
A Wisconsin obstetrician who was providing twenty-four-year-old Angela M. W. with prenatal care suspected that she was using cocaine or other drugs. When blood tests allegedly confirmed the obstetrician’s suspicion, he confronted Angela about her drug use. She then stopped coming in for scheduled appointments, at which point the obstetrician reported her to the Waukesha Department of Health and Human Services (DHHS). Relying on this information, DHHS petitioned the juvenile court for an order directing the Waukesha County Sheriff’s Department to take Angela’s fetus into protective custody. With the obstetrician’s sworn statement against his patient as the sole source of information about the case, the juvenile court appointed a guardian ad litem for Angela’s fetus and issued an order requiring that the fetus “be detained . . . and transported to Waukesha Memorial Hospital for inpatient treatment and protection.” According to the order, “Such detention will by necessity result in the detention of the unborn child’s mother,
The Angela M. W. case illustrates that threats of punitive responses discourage some women from continuing medical care.103 In the Marlowe case discussed earlier, Marlowe fled the hospital while in active labor rather than submit to unnecessary surgery. She found a hospital that respected her decision making and delivered a healthy baby vaginally. In South Carolina, a thirty-three-year-old biracial woman, Theresa Joseph, was in her first trimester of pregnancy when she was admitted to the Medical University of South Carolina for treatment of a severe foot infection. Because Joseph was pregnant and acknowledged having a drug problem, she was threatened with arrest under the hospital’s policy. Joseph responded to the threat by leaving the hospital against medical advice and avoided both prenatal care and drug treatment for the remainder of her pregnancy. Several other women not only avoided prenatal care and hospital births because they feared child removal or arrest but also delayed seeking, or failed altogether to obtain, medical care for themselves or their newborn babies for the same reasons.
Alma Baker, a thirty-four-year-old white woman in Texas, was arrested on charges of delivering a controlled substance to a minor when her twins were born and tested positive for THC, a chemical compound found in marijuana. Baker squarely addressed how fear of reporting and punishment may have a deterrent effect when she said, “If I would have known that I’d get in trouble for telling my doctor the truth [that she was using cannabis to calm her nausea] I would have either lied or not gone to the doctor” Individual health care providers and social workers have in some instances arguably violated ethical standards by breaching privacy and confidentiality, overriding patient decision making, and facilitating the arrest or other punitive detention of a patient
Our findings also make clear that far more than the right to decide to have an abortion is at stake if such laws pass. All pregnant women, not just those who try to end a pregnancy, will face the possibility of arrest, detention, and forced intervention as well as threats to and actual loss of a wide range of rights associated with constitutional personhood. Indeed, we have identified more than two hundred cases initiated against pregnant women since 2005 that also overwhelmingly rest on the claim of separate rights for fertilized eggs, embryos, and fetuses.
In light of these continued efforts and our findings, we challenge health care providers, law enforcement and child welfare officials, social workers, judges, and policy makers to examine the role they play in the arrests and detentions of and forced interventions on pregnant women. We call on these same people to develop and support only those policies that are grounded in empirical evidence, that in practice will actually advance the health, rights, and dignity of pregnant women and their children, and that will not perpetuate or exacerbate America’s long and continuing history of institutionalized racism.
Finally, our study provides compelling reasons for people who value pregnant women, whether they support or oppose abortion, to work together against personhood and related measures so women can be assured that on becoming pregnant they will retain their civil and human rights.
The entire study is here.