The Imperative to Challenge Public Policies that Criminalize Pregnancy Outcomes

| May 27, 2015

By now, most reproductive rights, health and justice activists have heard of Purvi Patel, the Indiana woman sentenced to decades behind bars after what she maintains was a miscarriage. Her case is still being fought in the courts, but supporters have recognized it as a wake-up call about what a post-Roe America might look like, with bedside interrogations and trials that pry into emotional responses to pregnancy loss. Even as public awareness that pregnancy outcomes can lead to imprisonment is growing, threats to pregnant people are quietly working their way through courthouses and statehouses across the country.

People may have heard of the cruel case against Purvi Patel, but it’s less likely that they’ve heard of Melissa McCann Arms, sentenced to 20 years in prison for giving birth to a baby who tested positive for controlled substances. She is waiting for the Arkansas Supreme Court to decide not only her fate, but that of every other pregnant Arkansan. If the court rules against her, using any amount of a controlled substance that can pass through the placental barrier could be the crime of Introducing a Controlled Substance into the Body of Another Person. Even prescribed opioids would mean prison time.

Most people also probably haven’t heard of Stephanie Louk, a West Virginia woman who suffered a heart attack and gave birth by emergency cesarean surgery to a baby who died after 11 days. She was charged with Child Neglect Resulting in Death based on a theory that she caused her own heart attack by using criminalized drugs, and she was sentenced to up to 15 years in prison. She, too, is waiting for vindication from the state high court, which will decide whether anyone who takes a risk during pregnancy — from climbing a stepladder to disagreeing with medical recommendations — can be charged with a crime if something goes wrong.

The unfortunate truth is that it is becoming increasingly common for police to be called into hospital rooms to question pregnancy losses and interrogate or even arrest women who give birth to healthy babies. This is the result of a dangerous intersection of policies. Feticide and so-called “unborn victims of violence” laws have established that pregnancy outcomes are the jurisdiction of law enforcement. Policies that target abortion perpetuate misinformation about fetal development. And drug war rhetoric foments stigma that leads people to turn a blind eye to this growing human rights crisis. The results are devastating and, because of the way legal precedent works, the impact won’t be limited to pregnant women who use criminalized drugs.

Fortunately, the news isn’t all bad. The Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR) and allies stood firm against formidable opposition and long odds and defeated a feticide bill in the state legislature this year. Healthy and Free Tennessee and SisterReach beat back an expansion of a disastrous 2014 law permitting assault charges against women who give birth to babies who show symptoms related to narcotics exposure at birth. Activists in five states stopped copycat bills that would have followed Tennessee in the race to the bottom.

The courageous resistance from activists in Indiana, Colorado, Tennessee and elsewhere should give us hope that we can protect the human rights of pregnant people, even when the threat seems insurmountable. But the essential first step is recognizing the threat.