Implications
The hundreds of cases this study documents raise numerous concerns about the health and dignity afforded to pregnant women in the United States. Pregnancy and childbirth continue to carry significant life and health risks (Centers for Disease Control and Prevention [CDC] 2000, 2008; Amnesty International 2010; Save the Children 2010; Raymond and Grimes 2012). In many of the cases, women experienced those risks (often voluntarily undergoing cesarean surgery to bring forth life) only to find that doing so provided the basis for being charged with a crime. Some affidavits in support of the arrest describe giving birth as part of the alleged crime. For example, one affidavit explained that the woman “did willfully and unlawfully give birth to a male In some cases the criminal charges filed and comments made by arresting officers, prosecutors, and judges were explicit in denying dignity to both women and their children. Accordingly, the woman did not give birth to a child but rather to a “victim,” a “bastard,” or a ““delinquent.”
Our findings challenge the notion that arrests and detentions promote maternal, fetal, and child health or provide a path to appropriate treatment. Significantly, detention in health and correctional facilities has not meant that the pregnant women (and their fetuses) received prompt or appropriate prenatal care. Our research into cases claiming that arrests and detentions would ensure that pregnant women were provided with appropriate drug treatment or that only women who had refused treatment would be arrested or prosecuted overwhelmingly found that such claims were untrue. In some cases women were arrested despite the fact that they were voluntarily participating in drug treatment. Our findings also lend support to the medical and public health consensus that punitive approaches undermine maternal, fetal, and child health by deterring women from care and from communicating openly with people who might be able to help them (Roberts and Pies 2011; Roberts and Nuru-Jeter 2010; Jessup et al. 2003; Poland et al. 1993; Gehshan 1993; US General Accounting Office 1990). Cases documenting pregnant women's unwillingness to seek help for themselves, and in some cases for their newborns, provide compelling anecdotal evidence that punitive measures and the legal arguments supporting them will undermine rather than advance state interests in public health.
Our study also challenges the idea that arrests, detentions, and forced interventions of pregnant women are extremely rare and occur only in isolated, exceptional circumstances against a narrowly definable group of women. Quite to the contrary, cases documented in this study make clear that arrests, detentions, and forced interventions have not been limited to pregnant women who use a certain drug or engage in a particular behavior. Our research shows that these state interventions are happening in every region of the country and affect women of all races.
At the same time, disturbing patterns emerge from our data, which show that the majority of cases have included an allegation relating to the use of an illegal drug (overwhelmingly cocaine), that low-income women, especially in some southern states, are particularly vulnerable to these state actions, and that pregnant African American women are significantly more likely to be arrested, reported by hospital staff, and subjected to felony charges.
These findings are consistent with investigative news articles reporting that African Americans are more likely to be subjected to drug testing and reporting (Rotzoll 2001; Anderson 2008); studies finding racial disparities in drug testing and reporting of African American women (Chasnoff, Landress, and Barrett 1990; Ellsworth, Stevens, and D'Angio 2010; Roberts and Nuru-Jeter 2011), and previous research concerning court-ordered interventions (Kolder, Gallagher, and Parsons 1987). They are also consistent with well-documented racially disproportionate application of criminal laws to African American communities in general and to pregnant African American women in particular (Roberts 1997; Flavin 2009; Alexander 2010; Tonry 2011).
A full discussion of the implications of our research with regard to race, gender, and the war on drugs is beyond the scope of this article. It is important to note, however, that the clear racial disparities identified cannot be explained as the consequences of “color-blind” decisions to exercise state control over pregnant women who use drugs or more specifically those who use cocaine. Although which substances are most likely to be used may vary with population subgroups and geography, rates of drug use and dependency are similar across races (Mathias 1995; Hans 1999; National Institute on Drug Abuse 2003; Substance Abuse and Mental Health Services Administration 2009, 2011; Roberts and Nuru-Jeter 2011).
Moreover, the risks of harm from prenatal exposure to cocaine are not qualitatively different from risks posed by other factors (legal and illegal), and the harms that have been associated with prenatal exposure to cocaine are not easily distinguishable from other contributing and often correlated factors (Zuckerman et al. 1989; Mayes et al. 1992; Little, Wilson, and Jackson 1996; Slotnick 1998; Addis et al. 2001; Chavkin 2001; Lewis et al. 2004; Ackerman, Riggins, and Black 2010). In 2001 the Journal of the American Medical Association published a comprehensive analysis of the developmental consequences of prenatal exposure to cocaine that concluded:
Among children aged 6 years or younger, there is no convincing evidence that prenatal cocaine exposure is associated with developmental toxic effects that are different in severity, scope, or kind from the sequelae of multiple other risk factors. Many findings once thought to be specific effects of in utero cocaine exposure are correlated with other factors, including prenatal exposure to tobacco, marijuana, or alcohol, and the quality of the child's environment. (Frank et al. 2001: 1613-14)
The authors of the study condemned as “irrational” policies that selectively ““demonize” in utero cocaine exposure (ibid.: 1620). Indeed, the US Sentencing Commission (2007), in adjusting the penalties associated with crack-related offenses, did so in part because it concluded that “the negative effects from prenatal exposure to cocaine, in fact, are significantly less severe than previously believed” and that those negative effects are similarly correlated with the effects of prenatal exposure to other drugs, both legal and illegal.
Finally, as has been compellingly argued by historians, sociologists, legal scholars, and others, the willingness to believe that cocaine, and especially crack cocaine, required uniquely punitive responses was derived in large measure from racist assumptions about African Americans in general and African American mothers in particular (Gomez 1997; Morgan and Zimmer 1997; Reinarman and Levine 1997; Roberts 1997; Humphries 1998, 1999; Collins 2000: 69-96; Zerai and Banks 2002; Hart 2012). The harsh treatment imposed on the pregnant women in our study, including being taken straight from their hospital beds and arrested shortly after delivery, being taken in handcuffs, sometimes shackled around the waist, and at least one woman being shackled during labor, is consistent with a long and disturbing history of devaluing African American mothers (Roberts 1997; Ocen 2011; Roth 2012).
Our review of the legal authority articulated in support of the actions taken against the pregnant women identified in this study found that it rested on the claim that state authorities should have the power to arrest, detain, and forcibly intervene on pregnant women in order to protect the fertilized eggs, embryos, and fetuses inside them. We believe the implications are clear: if feticide statutes that purport to protect pregnant women and fetuses from third-party attacks and existing laws that declare separate rights for eggs, embryos, and fetuses are already being used as the basis for justifying depriving pregnant women of their liberty, we must expect that personhood measures will be used this way, too. Thus, far from being a scare tactic, our findings confirm that if passed, personhood measures not only would provide a basis for recriminalizing abortion, they would also provide grounds for depriving all pregnant women of their liberty.
Our findings also make clear that far more than the right to decide to have an abortion is at stake if such laws pass. All pregnant women, not just those who try to end a pregnancy, will face the possibility of arrest, detention, and forced intervention as well as threats to and actual loss of a wide range of rights associated with constitutional personhood (Gallagher 1987; Johnson 1989; Roberts 1991; Daniels 1996; Boyd 1999; Campbell 2000; Solinger 2002; Roth 2003; Fentiman 2006; Cherry 2007). Indeed, we have identified more than two hundred cases initiated against pregnant women since 2005 that also overwhelmingly rest on the claim of separate rights for fertilized eggs, embryos, and fetuses (see, e.g., James 2010; Pilkington 2011; Robinson 2012; Calhoun 2012; ABC News 2 2012).
While voters in Colorado and Mississippi defeated personhood ballot measures three times (Colorado Secretary of State 2008, 2010; Mississippi Secretary of State 2011b), Personhood USA, the organization sponsoring these measures, has promised to continue its efforts to get them passed (Pesta 2012; Vanderveen 2012). Similar bills, including the so-called Sanctity of Human Life Act (H.R. 212, 112th Cong. [2011]), have been introduced in Congress. In light of these continued efforts and our findings, we challenge health care providers, law enforcement and child welfare officials, social workers, judges, and policy makers to examine the role they play in the arrests and detentions of and forced interventions on pregnant women. We call on these same people to develop and support only those policies that are grounded in empirical evidence, that in practice will actually advance the health, rights, and dignity of pregnant women and their children, and that will not perpetuate or exacerbate America's long and continuing history of institutionalized racism. Finally, our study provides compelling reasons for people who value pregnant women, whether they support or oppose abortion, to work together against personhood and related measures so women can be assured that on becoming pregnant they will retain their civil and human rights.
