Tuesday, August 20, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Article Index

Criminal Charges and Other Efforts to Deprive Pregnant Women of Their Liberty

Overwhelmingly, the deprivations of liberty described here occurred in spite of a lack of legislative authority, in defiance of numerous and significant appellate court decisions dismissing or overturning such actions, and contrary to the extraordinary consensus by public health organizations, medical groups, and experts that such actions undermine rather than further maternal, fetal, and child health (American College of Obstetricians and Gynecologists 1987, 2005, 2011; National Perinatal Association 2011; American Psychiatric Association 2001; American Nurses Association 1991; American Academy of Pediatrics 1990; Cole 1990; March of Dimes 1990; National Council on Alcoholism and Drug Dependence 1990). The American Medical Association, the American Academy of Pediatrics, and the American College of Obstetricians and Gynecologists, for example, have concluded that threats of arrest and punishment deter women from care and from speaking openly with their doctors (Cole 1990; American Academy of Pediatrics Committee on Substance Abuse 1990). The American Medical Association statement also notes that such threats could pressure some women to have unwanted abortions rather than risk being subject to criminal penalties.

Due in part, no doubt, to the strong public health opposition to such measures, no state legislature has ever passed a law making it a crime for a woman to go to term in spite of a drug problem, nor has any state passed a law that would make women liable for the outcome of their pregnancies (Paltrow, Cohen, and Carey 2000; National Abandoned Infants Assistance Resource Center 2008; Guttmacher Institute 2012a). Similarly, no state legislature has amended its criminal laws to make its child abuse laws applicable to pregnant women in relationship to the eggs, embryos, or fetuses that women carry, nurture, and sustain. No state has rewritten its drug delivery or distribution laws to apply to the transfer of drugs through the umbilical cord. To date no state has adopted a personhood measure, and no law exists at the state or federal level that generally exempts pregnant women from the full protection afforded by federal and state constitutions. In 1997, as a result of a judicial ruling (not legislation), South Carolina became the only state during the time period covered by our study (1973-2005) to authorize the prosecution of pregnant women.

Nevertheless, our study documents hundreds of arrests or equivalent deprivations of liberty, with the majority relying on interpretations and applications of criminal laws that were never intended to be used to punish women in relationship to their own pregnancies. In 86 percent of the cases (n = 354), the efforts to deprive pregnant women of their liberty occurred through the use of existing criminal statutes intended for other purposes (see table 1). In those cases the charges most frequently filed were child abuse or child endangerment (n = 204).

Sixty-eight cases involved women who experienced miscarriage, stillbirth, or infant death. In all but six cases, prosecutors attributed the loss entirely to actions or inactions that occurred during the woman's pregnancy. In forty-eight of those cases, women were charged under variations of the state's homicide laws, including such crimes as feticide, manslaughter, reckless homicide, homicide by child abuse, and firstdegree murder. In four cases in which a woman's actions were described as inducing a self-abortion, she was also charged under murder or manslaughter statutes.

Some of those statutes did not require any intent to end the pregnancy. For example, Regina McKnight, the African American woman from South Carolina discussed above, was convicted of homicide by child abuse even though all parties in the action, including the state, agreed that she had no intention of ending the pregnancy.

The vast majority of women (n = 295) were charged with felonies, which are offenses punishable by more than one year of incarceration. African American women were significantly more likely than white women to be charged with felonies (see table 2). Eighty-five percent of African American women were charged with felonies, compared with 71 percent of white women.

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