Criminalizing pregnant women

November 20, 2013

Increasingly, states are using existing ornew laws to criminalize the behavior of pregnant women, with the claim that fetuses might be in danger. This poses a serious threat to women like Alicia Beltran--who, while pregnant, was sent to a rehab facility by the state of Wisconsin against her will, even though she wasn't using drugs at the time.

Rachel Cohen spoke with Lynn Paltrow, executive director of National Advocates for Pregnant Women, about Beltran's case and the wider attack on the rights of pregnant women.

CAN YOU talk about the Alicia Beltran case and how it fits into trends in the treatment of pregnant women?

THE ALICIA Beltran case was reported quite well in the New York Times. She's a woman who, early in her pregnancy, sought prenatal care, which is what most people hope pregnant women will do. She was honest with her doctor and found that being pregnant and honest can result in your arrest.

She shared that before she became pregnant, she had worked to overcome some perceived problem with Percocet use, and that she had been using Suboxone, a drug used to prevent withdrawal symptoms. She'd been using Suboxone, as is recommended for pregnant women, but had been doing so by obtaining it from a friend or some other individual, rather than a doctor, because she didn't have health insurance and couldn't afford it otherwise.

By the time she switched to a new ob-gyn practice, she was no longer taking any controlled substances, but the response to the information she provided about her medical history--her personal information--was that they reported her to state authorities. Shortly thereafter, she was met at her home by five law enforcement officials who arrested her and put her in handcuffs.

A pregnant woman under arrest
A pregnant woman under arrest

Later that day, they brought her to a courtroom in handcuffs and shackles, where she discovered that her 12- to 14-week fetus already had a lawyer appointed for it--while she herself was not entitled to counsel at all during the hearing to decide her physical liberties.

At that hearing, the state commissioner ordered her to go to a residential drug treatment program for 90 days--without any qualified, confident evaluation of the need for that level of treatment, if any at all, and without any current evidence of drug use, much less drug use that by some standard would fit the statutory definition of habitual lack of self-control in the use of alcohol or controlled substances to a severe degree.

So National Advocates for Pregnant Women (NAPW), along with lead counsel Linda Vanden Heuvel and the Reproductive Justice Clinic at New York University, have been representing Ms. Beltran in a challenge to her detention and the constitutionality of the law they used to arrest her and hold her captive for nearly 80 days of her pregnancy.

Since we filed the lawsuit and received national attention, the state voluntarily dismissed the case against her. At first, they argued she should be under state control and surveillance throughout her pregnancy, and then forced to go to trial as to whether she was entitled to custody of her newborn. But then they chose to voluntarily dismiss the case, so they are also arguing, therefore, that the federal constitutional challenge to her case should also be dismissed.

ALICIA BELTRAN isn't alone in the manner in which she was treated. I understand there are 17 states with similar laws on the books that have been used to target pregnant women in these punitive ways.

THERE REALLY only are four states that specifically have laws that permit locking up pregnant women--that specifically target pregnant women for arrests and their equivalent. Oklahoma, South Carolina and Minnesota have specifically amended their state civil commitment laws to permit taking pregnant women who use some amount of alcohol or controlled substance into custody--not because they're a danger to themselves or other persons, but because of a perceived danger to their future child.

Wisconsin has a similar law, but they did it by amending their Children's Code, by adding the phrase "unborn child" over 400 times--the child as existing from the moment of fertilization--and giving the court control of the pregnant woman at all stages of the pregnancy, as if by becoming pregnant the woman becomes a child subject to state control under the Children's Code.

I READ your report with Jeanne Flavin about more than 400 cases of detention or forced medical intervention, just up to 2005 ("Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005"). It does seem there are so many parallels between Alicia Beltran's case and those of other women who have had their rights set aside in favor of the perceived rights of their fetuses, but also have been denied medical services and really treated in ways that were...



OUR STUDY looks at every case we could document, and we suspect there's a very large undercount. The study only analyzed cases between 1973, when Roe v. Wade was decided, and 2005. Since 2005, we know of more than 300 cases around the country, of which Alicia Beltran's case is one.

IT'S INTERESTING, too, which states have these laws and which ones don't. I remember reading that most instances took place in the South, but certainly not all. I wonder if that in your mind connects to what might be some of the underlying causes for the targeting of pregnant women--the relationship to racism and poverty.

THE CASES that we report are disproportionately from the South, disproportionately--overwhelmingly--targeted to low-income women, and very disproportionately targeted towards women of color, specifically African American women.

Certainly there has been a concerted effort to undermine, disrespect and destroy Black motherhood going back to slavery. Part of the reason people were so quick to believe the media myths around the impact of cocaine use on pregnant women was that it was associated with African American women.

There was a good piece in the New Republic about how the pro-life movement is using the drug war to advance their cause, and it noted that this law, called the "cocaine mom law," was passed in Wisconsin a decade after the so-called crack baby epidemic. That's a decade with the benefit of research saying that the risk of harm from prenatal exposure to cocaine is about the same or less than the risks of exposure to cigarettes.

In terms of race and class and intersecting issues, the majority of these cases do involve an allegation that a woman became pregnant, stayed pregnant and used a criminalized drug. And as Michelle Alexander, in The New Jim Crow, so brilliantly elucidates, the war on drugs has been used as a tool to advance racism and the legacy of slavery and Jim Crow.

We've been seeing what we call a "New Jane Crow," in the sense that the way in which these arrests, prosecutions and interventions are carried out is one that would empower states to create an entirely separate-and-unequal system of law for all pregnant women. We know this would be disproportionately applied, particularly in the South, to women of color.

However, in January of this year, the Alabama Supreme Court reached a ruling in the Ankrom and Kimbrough cases.

In 2006, Alabama passed a chemical endangerment of a child law. It was designed to punish adults who took children to dangerous places like methamphetamine labs, but it began to be used by prosecutors to arrest almost exclusively women who became pregnant and used a controlled substance--the argument being that a pregnant woman's womb was no different than a meth lab.

These prosecutions were challenged, and this year, the Supreme Court actually upheld this blatant misinterpretation of the law, saying that in Alabama, the meaning of the word "child" includes fertilized eggs and embryos and fetuses. More than 100 women have been arrested in Alabama, and most of them are poor white women. Grace Howard, a graduate student at Rutgers, has posited that this is a legacy of the eugenics movement in the U.S., which was about trying to ensure the purity of the white race.

HOW DO you see this trend of increasing criminalization of pregnant women's activities connecting to the increase in legislative attacks on access to abortion and other reproductive health care?

WHEN YOU say the "criminalization" of pregnant women's conduct, I'd like to break that down. One, as a society we generally do punish certain conduct--that's not a shocking concept. But none of these cases are simply about conduct. The fact that the woman became pregnant, her status as a pregnant person, is itself an element of the crime.

In most of the 400 cases we documented, and all the ones since 2005, pregnancy is a "but for" element of the crime. Most places, for example, do not punish drug use itself. They punish possession, so that if you're a man who turns up in an emergency room, and you've got a positive drug test, you aren't turned over to the police, unless you've got pockets stuffed with drugs. There are a few states that do punish use, but the vast majority don't. So you're creating a separate-and-unequal law for women who become pregnant.

It's not criminalization of pregnant women's conduct--it's punishment of women who become pregnant and may or may not do something else, and in some way are believed to be risking harm to their future children.

Even in the cases where drugs are alleged, South Carolina is one of the only other states besides Alabama that, through judicial activism, has legitimized these kinds of arrests. So what happened in South Carolina is a woman, Cornelia Winter, gave birth to a healthy newborn who tested positive for cocaine. They said she could be charged with the crime of child endangerment.

The crime of child endangerment is not targeted to women who use illegal drugs. It just says you are guilty of a crime if you endanger your child. And they started by prosecuting an African American woman who used cocaine.

So they established the principle that a criminal child abuse law can be applied to pregnant women in relation to their fetuses. Then a woman who uses marijuana is arrested. Then a woman who uses alcohol is arrested. Then a woman who attempts suicide and loses her pregnancy is arrested. A woman who suffers a stillbirth is arrested--all of them for homicide by child abuse.

Then we get a call from a midwife who says, "I went to an ob-gyn with a patient who was in breach, and the doctor said, 'You know, we can't force you to have a c-section, but if you don't and something goes wrong, you can be arrested in our state.'"

I've used that phrase, too--"the criminalization of pregnant women." But as frightening as that concept is, it's actually not frightening enough. Because once you use these laws to treat fertilized eggs, embryos and fetuses as if they're entirely separate from a pregnant woman, every law and every mechanism of state power and control is used.

As for the connection that you asked about, the fact that a state has a feticide law that says fetuses are separate persons means they use all of those post-Roe, anti-abortion laws as the reason why courts should allow them to also apply the child abuse homicide delivery of drug laws to pregnant women.

WHAT SHOULD be the priorities for people who want to challenge these laws and their application to women's lives. Are there ways to frame these issues politically that we should talk about more?

FIRST OF all, most states already have feticide laws, but there should absolutely be a moratorium on them. State legislatures should be called on to commission studies as to whether those laws have reduced violence against pregnant women--because that's what's been claimed these laws will do, but not a single state has been called upon to prove it, in any way shape or form.

I think that legislators should be asked to vote on a resolution stating that, upon becoming pregnant and through all states of labor and delivery, pregnant women retain their human rights. Let's see how many legislators vote for that. Because the anti-abortion laws, the feticide laws and all of the others that are being passed in the guise of outlawing abortion and adding fetuses, eggs and embryos to state constitutions--what they are, in fact, doing is something that has never happened in the history of the U.S., which is subtracting a group of people, pregnant women, from the community of constitutional persons.

IN LIGHT of that, what do you see as the significance of the case of Alicia Beltran, and what does the timeline look like in her case?

FIRST OF all, as a result of the cost of her arrest and detention--not to mention she might have taken a bed away from a woman who actually needed it--one of the expert doctors said that if they were looking at this court-ordered treatment and the fact that the taxpayers paid for it, they would think this might be Medicaid fraud. There's just no reason this woman should have been in residential treatment, under any imaginable diagnosis.

The proper role of the state is not to force women to accept bad medical advice and get treatment they don't need. It should be to try to make the Affordable Care Act work and insure that women who need and want treatment can get it.

As for the next steps in the case, she lost her job over this arrest. It's been unbelievably stressful. We're very happy that the state dismissed the case against her. She's adamant about making sure the law is never applied to her again, and that an unconstitutional law not remain on the books.

But personally, I take seriously one of the conclusions of Michelle Alexander's book The New Jim Crow, which is that we're fooling ourselves if we think any single piece of litigation, even if we win it, is going to change much in the country as it exists today.

So any case we bring must be in the service of movement-building and increasing people's understanding of what's really going on and what they should be expecting of their government--which is to support pregnant women and take the steps provide access to health care, housing and adequate nutrition.

The state should not be the enemy of pregnant women, threatening with them arrest or preventing them from getting the health care they need--whether that means ending a pregnancy or deciding to continue it to term.

Transcription by Leela Yellesetty

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