Troubling number of women denied constitutional rights based on pregnancy
Hundreds of women have been arrested, convicted, jailed, detained in mental institutions or forced to endure medical procedures as a result of the “criminalisation of pregnancy” over the last four decades, a new report has found.
In the first study of its kind, to be published on Tuesday, researchers from the National Advocates for Pregnant Women (NAPW) identified 413 criminal and civil cases across 44 states involving the arrests, detentions and equivalent deprivations of pregnant women’s liberty between 1973 and 2005. NAWP said that it is aware of a further 250 cases since 2005. Both figures are likely to be underestimates, it said.
The report, which will appear in the Journal of Health Politics, Policy and Law, found that women were denied a wide range of basic human rights, including the right to life, liberty, equal protection and due process of law “based solely on their pregnancy status”.
It found a wide range of cases in which pregnant women were arrested and detained not only if they ended a pregnancy or expressed an intention to end a pregnancy, but also after suffering unintentional pregnancy loss.
The cases of detention and forced medical intervention varied widely and included one in which a judge in Ohio kept a woman imprisoned to prevent her having an abortion.
Another involved a woman in Oregon who refused a doctor’s recommendation for additional testing for gestational diabetes. She was held in a locked psychiatric ward. Another case involved a court in Washington DC, which ordered a critically ill woman to undergo caesarian section over her objections. Neither she nor the baby survived.
Lynn Paltrow, executive director of NAPW and lead author of the study said: “Our analysis of the legal claims used to justify the arrests found they relied on post-Roe measures such a feticide laws and the same arguments made in support of so-called ‘personhood measures’ – namely that state actors would be empowered to treat fertilised eggs, embryos and foetuses as completely legally separate from the pregnant women.”
She said: “It is not just the criminalisation of pregnant woman, that almost minimises the scope of what we are talking about. They are using civil statues to keep women committed. Right we’re ordering the foetus to be committed and you have to come too.”
The study found that police, prosecutors and judges relied directly and indirectly on feticide statues that create separate rights for the unborn, claiming to protecting pregnant women and the eggs, embryos and foetuses they carry from third-party violence, on state abortion laws that include language similar to personhood measures and to “misinterpretation of Roe v Wade as holding what personhood measures propose – that foetuses may be treated as separate legal persons”.
Paltrow warned that if personhood measures pass, it would create a “Jane Crow system of law in which pregnant women have a second class status.”
The study spanned a four decade period beginning in 1973, the year the US supreme court recognised a woman’s right to choose to have an abortion in the landmark Roe v Wade case. However, NAPW said the 413 cases represented a “substantial undercount” and that the denial of fundamental rights of pregnant women was ongoing.
Earlier this month, Maria Guerra, of Memphis, Tenessee, was charged with child endangerment and driving under the influence after she was found to be four months pregnant, even though her blood alcohol level was under the legal limit. In Oklahoma, this month, Jamie Lynn Russell, 33, died in agony from a ruptured ectopic pregnancy in jail. Police, who were called to a hospital where Russell sought help for severe abdominal pain, charged her with drug possession after finding two prescription pills that did not belong to her.
Last year, prosecutors in Indiana classified the failed suicide attempt of Chinese-born Bei Bei Shai, as the murder of her foetus. The case is ongoing.
Jeanne Flavin, Fordham University professor of sociology and co-author of the report, said: “The public debate about personhood and other anti-abortion measures tends to focus narrowly on abortion. Our study makes clear that all pregnant woman are threatened by such measures.”
The study, believed to be the most systematic account of its kind, relied mostly on public records such as police and court documents, although a small number of cases were taken newspaper accounts. The women were aged between 12 and 43, and two were minors.
It found that low-income women and African American women were more likely to be deprived of their liberty. The largest percentage of cases of the 413 – 56% – came from the southern states, followed by 22% in the midwest.
South Carolina had 93 cases, the highest number in any state, followed by Florida, which had 56 cases.
The study concludes: “As personhood measures continue to be promoted in state legislatures and in Congress, and as we observe the 40th anniversary of Roe v Wade, this study broadens the conversation form just one abortion to one about health policy and the legal status of pregnant women.”
[Woman in prison via Shutterstock]