The drama of women imprisoned in the US for having miscarriages

When a 21-year-old indigenous woman from Oklahoma was convicted of manslaughter after miscarriage, people were outraged. But his case was not unique.

Brittney Poolaw was approximately four months pregnant when she lost her baby in the hospital in January 2020.

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In October of this year, she was found guilty and sentenced to four years in prison for the first degree murder of her unborn child.

How she went from having a miscarriage to being incarcerated for killing her fetus has become a topic of much discussion online and in the press.

Some highlighted on social media that their convict coincided with pregnancy loss awareness month in the United States.

Others compared the case to Margaret Atwood’s dystopian novel The Handmaid’s Tale (“The Handmaid’s Tale”).

When he arrived at the hospital seeking treatment, Poolaw admitted to using illicit drugs during pregnancy.

Later, the medical examiner’s report, obtained by the BBC, found traces of methamphetamine in the liver and brain of your unborn child.

The coroner did not determine the cause of death of the fetus and noted that genetic abnormality, placental abruption, or maternal methamphetamine use could have been contributing factors.

Abortion is one of the issues that most divides Americans. (GETTY IMAGES)

Poolaw’s attorneys say they will appeal the ruling. The prosecutor who took her case to court has declined to comment while the proceedings continue.

However, Poolaw’s story is just the tip of the icebergsays Dana Sussman, deputy executive director of the National Defenders of Pregnant Women (NAPW), an advocacy group for the right to choose.

“The Brittney case really touched a sensitive topic,” Sussman said. “It is not as uncommon as people assume.”

The organization is assisting with Poolaw’s appeal and has been tracking arrests and “forced intervention” cases against pregnant women in the US.

Between 1973 and 2020, the NAPW has recorded 1,600 such cases. Around 1,200 occurred in the last 15 years alone.

Although some involved women who were arrested after falling or giving birth at home, the vast majority involved drugs and women of color they were overrepresented.

The recent explosion of criminal cases is part of a “uniquely American phenomenon” at the crossroads of the US “war on drugs” and the movement. [antiaborto] Personhood, afirmó Sussman.

What’s a human being?

The issue of fetal drug exposure came to the fore in the cultural debate in the 1980s, when the term “baby crack”Began to be used to describe children born to addicted mothers.

Drug use during pregnancy is associated with many negative outcomes, including an increased risk of miscarriage and stillbirth, but the actual impact of drug use on the fetus varies widely.

Studies from the 1980s that claimed that the children of mothers with cocaine addiction suffered from extreme developmental defects were later debunked.

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Since then, subsequent drug epidemics, from methamphetamine use to the opioid crisis, have kept the issue in the limelight.

At the same time, several US states have passed laws making abortion difficult.

While people oppose abortion for different reasons, often moral or religious, one part of the argument has focused on the notion of person.

“The concept of person is pretty simple,” says Sarah Quale, president of the Personhood Alliance Education, a pro-life organization.

“We are human and our equality is based on our humanity. Nothing changes the scientific fact that we are biologically human from start to finish. Therefore, as human beings we deserve the same protection under the law because we have inherent natural rights ”.

The Personhood movement has helped promote laws that go beyond regulating access to abortion, to extend the rights and protections to the fetus as if it were a citizen of the State by birth.

The Personhood Alliance Education also rejects issues such as medically assisted dying, research that destroys embryos, and human trafficking.

While the organization does not take a position on whether the law should prosecute mothers who use drugs, Quale said it personally supports measures that “protect unborn children from the harm that occurs when a mother uses drugs during pregnancy.”

“But our legal system must not only consider questions of responsibility and accountability, it must also focus on the restoration and recovery of drug addicts,” he added.

Laws that protect or harm?

Substance use during pregnancy is considered child abuse under the civil child welfare statutes of 23 states., according to the Guttmacher Institute, a research center in favor of the right to decide to abort or not.

In half the US states, healthcare workers must report pregnant women suspected of using drugs.

In 2006, the state of Alabama passed a “chemical hazard” law that made it a felony for a child to be “exposed to, swallowed or inhaled, or come in contact with a controlled substance, chemical, or drug paraphernalia.”

An investigation of the environment ProPublica found that more than 500 women were charged in the decade since the law was passed.

For its part, Tennessee tried to do the same and passed a similar law in 2014, although it expired two years later and was not renewed.

In one California county, two women were jailed for experiencing stillbirths and testing positive for illicit drugs. The murder charges against Chelsea Becker were dropped this year, after she spent a year and a half in jail because she was unable to post a $ 2 million bond.

Meanwhile, Adora Pérez has served a third of an 11-year manslaughter sentence after pleading guilty to avoid the murder charge. He is currently trying to appeal.

A woman in El Salvador was found guilty of an illegal abortion after suffering a miscarriage. He died in jail. (GETTY IMAGES)

Both women were prosecuted using what is known as “Fetal assault laws”, which exist in at least 38 states.

These were meant to help punish abusers who harm pregnant women, many of them prompted by a 2004 federal law passed after the murder of Laci Peterson, who was pregnant, at the hands of her husband.

But many of these laws are ambiguous and they leave the door open for prosecutors to charge women whose behaviors may have contributed to a miscarriage or stillbirth.

Some states have explicit rules about how many weeks a fetus must be to be viable; others don’t. Most doctors place viability around 20-24 weeks.

Poolaw was between 16 and 17 weeks pregnant when she had a miscarriage. Approximately 10-15% of pregnancies at this stage end in miscarriage.

A more draconian future?

If Poolaw had undergone a pregnancy termination instead of miscarriage, she would not have been charged not at all, since abortion is legal in Oklahoma.

But with the Supreme Court poised to rule on the legality of a near-total ban on abortions in Texas and tighter restrictions on abortion in several other states, reproductive justice advocates fear the future may be more draconian.

In countries where abortions are illegal, women have been arrested and charged with murder for having a miscarriage. Local authorities can accuse them of deliberately terminating your pregnancy.

One such case, in The Savior, which has one of the strictest abortion bans in the world, has reached the Inter-American Court of Human Rights, where a ruling is expected later this year.

Manuela, a 33-year-old woman who went to the hospital to seek treatment after a miscarriage, was sentenced to 30 years in prison for murder. He died in jail in 2010.

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His lawyers say that El Salvador’s laws that require doctors to report women suspected of having an abortion or the possibility of being imprisoned themselves if they fail to do so violate international human rights law.

At the root of these cases is the idea that once women become mothers, they must prioritize their fetus no matter whatsays Emma Milne, a law professor specializing in gender and crime at Durham University, UK.

But the reality is much more complex, says Milne. Women are often desperate and vulnerable, and in need of help and support.

“The fact that the State has not provided them with help and support during their pregnancy and before their pregnancy is the State’s fault”, said.

According to a 2012 survey, about 6% of American pregnant women admit to using illicit drugs, while 8.5% drink alcohol and 16% smoke cigarettes.

American medical associations oppose classifying drug use during pregnancy as child abuse, arguing that women with addiction problems should receive treatment rather than jail sentences.

“Drug addiction is a treatable disease rather than criminal activity”according to the American Medical Association, which represents American physicians.

Giving equal rights to the unborn under the law is not simple, says I. Glenn Cohen, a medical ethicist and vice dean of Harvard Law School.

“Nobody disputes that fetuses are members of the human species. [La pregunta es] if they are people [ante la ley] or not”, said.

Even if the law grants the fetus the status of person, should those rights that correspond to it as a person prevail over the mother’s right to self-determination?

“There is a lot to analyze here but it is almost never done in terms of politics and how it happens in court,” he said.

Women’s rights advocates worry that it is a “slippery slope” that could lead to pregnant women being stripped of their autonomy.

If a woman can be arrested for harming her fetus due to drug use, what if she has a beer? What happens if you accelerate while driving?

“If we do it for drugs, the question is: what’s next?” Milne questions.

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