Circumstances of Arrests and Other State Actions

In this section we describe the circumstances in which the arrests and other state actions took place. These circumstances often defy simple categorization. Research into cases that were widely reported in the news media as involving a pregnant woman and her use of an illegal drug or alcohol often revealed that other actions, inactions, or circumstances, in addition to pregnancy, were the primary reason for the state action. These include a pregnant woman who had been in a location while pregnant that exposed her unborn child to dangerous “fumes that permeate in the and another case in which the woman did not follow her doctor's medical advice to rest during her pregnancy and did not get to the hospital quickly enough on the day of delivery.

In several cases a woman's efforts to seek help after having been physically abused resulted in her arrest, although factors such as drinking alco hol or using an illegal drug while pregnant were cited as grounds for those arrests. 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.

Another case provides a particularly good example of one that defies simple categorization and characterization. Deborah 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.

According to the criminal complaint, “Once at St. Luke's Hospital, Deborah Zimmerman was combative and refused monitoring and 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 (Terry Eventually, however, staff performed an ultrasound on Zimmerman. Based on their interpretation of the results, medical staff believed that cesarean sur gery was necessary because of “fetal intolerance to labor and suspected intra-uterine growth retardation.”According to testimony from a surgical technician in the labor and delivery unit, Zimmerman refused to consent to the surgery:

Q. What did you and the hospital personnel do as a result of her refusal to consent to the C-section?

A. Well, I was assisting the RN ... and as I recall when we said we, we told her she needed a C-section, she said no one is doing this f-ing thing to me and I don't want to be here. Like I said, she did threaten to leave quite a bit, got up out of bed a few times. We then realized we had to do something, so we consulted the physician again and our nurse supervisor, who then decided to call in the police after [Zimmerman] had made a statement to me.
Q. What sort of statement did she make?
A. ... I was in the room alone with her, trying to talk to her, explained to her the situation, that she needed a lot of help here, that she had to cooperate, it wasn't just for her health, it was for the baby's health, and she had said if--at this time there was talk about that she might not be staying and, I recall her saying to me, if you don't keep me here, I'm going to go home and keep drinking and drink myself to death and I'm going to kill this thing because I don't want it anyways.
The first half of this hearsay statement has been interpreted by some as an explicit suicide threat made in the presence of doctors and nurses--one that generated no psychiatric consultation, evaluation, or treatment (Armstrong 2003: 2). The second half of the statement became the excuse for the arrest and the subject of national news. The fact that her refusal of cesarean surgery prompted the idea to call the police did not make the news at all.

The difficulty of categorization notwithstanding, we found that the majority of cases identified in this study focused on women who became pregnant, sought to continue to term, and were believed to have used one or more illegal drugs, with cocaine most often identified as one of them. 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 the 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. Regardless of whether there was a drug-related allegation, refusal to follow treatment orders was identified as part of the justification for the arrest, detention, or forced medical intervention in nearly one in five cases. In 41 cases alcohol was mentioned. Lack of prenatal care was identified as a factor in 68 cases. The fact that the woman smoked cigarettes was mentioned in 12 cases.

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, was HIV positive, 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. In numerous cases the fact that a pregnant woman had other children, some of whom were identified as having been exposed to alcohol or another drug, was referenced as part of law enforcement officials' explanation for the arrest (Rizzo 2002; Murphy

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, had mental illness, or had gestational diabetes, or because they had suffered a pregnancy loss. In fifteen of these 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 and provide any medical services that the nurse deemed necessary (Sealey

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.

Although deprivations of women's liberty are often justified as mechanisms for protecting children from harm, we found that in a majority of cases the arrest or other action taken was not dependent on evidence of actual harm to the fetus or newborn. As noted earlier, 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.

In cases where a harm was alleged (e.g., a stillbirth), we found numerous instances in which cases proceeded without any evidence, much less scientific evidence, establishing a causal link between the harm and the pregnant woman's alleged action or inaction. In other cases we found that courts failed to act as judicial gatekeepers to ensure, as they are required to do, that medical and scientific claims are in fact supported by expert testimony based on valid and reliable scientific evidence (Neufeld 2005; Paltrow and Jack 2010).

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.

In re Unborn Child of Starks provides a clear example of a judicial proceeding in which witnesses were allowed to express opinions about medical and scientific facts even though they were not qualified to do so. 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 danger 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

The lower court, however, continued its emergency order, giving custody of Starks's fetus to the Oklahoma Department of Human Services. A jury trial in the juvenile court went forward to determine if the fetus was “deprived” under the state's Children's Code. The state alleged that Starks had placed “the unborn child at risk of injury, serious bodily injury, with defects or death.”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 Starks, had been “deprived.”