MISCARRIAGE OF JUSTICE AND THE RISING NUMBER OF PREGNANCIES CRIMINALIZED

by | August 17, 2018

Are women going into hiding because of their miscarriage? This isn’t a dystopian novel that we get to put down at the end of the day. It’s reality for American women, and it’s a rising trend that we need to pay attention to. Lest we start living our own Handmaid Tales. 

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Pregnant women have very few legal rights in the United States, and the small number they have managed to hang onto are under constant attack, even their right to choose if they want to be pregnant is a constant fodder for the men who rule the country. 

With the recent new of Brett Kavanaugh nomination to the U.S. Supreme Court with an increasing number of heavy handed TRAP statutes, women in America are facing a grim future with a full repeal of Roe v Wade, or a crippling of any abortion and reproductive health protections. 

There is another issue on the horizon, a more sinister trend, the criminalization of pregnancy.

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Laws being used not as they were intended and legislatures singling out pregnant people to enact new laws that are nothing short of attacking their basic human rights. There has been a steady rise in prosecutions of miscarriage, stillbirths, abortions and drug use during pregnancy. Even, when a medical practitioner has diagnosed the patient, prescribed the medication and willing informs the prosecutor that the drugs do not harm the baby. 

One woman, Katherine Dellis in Virginia suffered a miscarriage in 2016 at home. She passed out on the bathroom floor from the pain and awoke to find the remains on the floor,  which she disposed of and sought out medical care. The hospital called the authorities, who located the remains in her home – a subsequent autopsy found the fetus had died in the womb three days before she suffered the miscarriage. 

For her ‘crime’ of disposing of the remains and seeking emergency medical help afterward, she received five months in jail. 

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Is a miscarriage a crime?

On June 1 of this year, Virginia Gov. Ralph Northam pardoned  Katherine Dellis for a crime that didn’t exist. In 2013, Lynn M. Paltrow and Jeanne Flavin from National Advocates for Pregnant Women released a study in which they cited 413 examples from 1973 to 2005 where a person’s pregnancy contributed to the deprivation of their physical liberty. And in recent years, there have been many new instances across the country according to Babble. 

Amnesty International published a report documenting the “patchwork” of laws across the U.S. that are used to prosecute people when they become pregnant, concluding that “the existence and enforcement of pregnancy criminalization laws are violating of pregnant women’s human rights.” A notable case that caused a lot of public uproar was a woman Purvi Patel from Indiana, who was sentenced to three years in prison for terminating her pregnancy. She was the first woman who was prosecuted for actually ending her pregnancy, however, she is certainly not the first or the 100th woman who has been prosecuted for the outcome of her pregnancy, intentional or otherwise. 

Another woman Anne Bynum from Arkansas had a stillbirth in the middle of the night, she kept the remains and went to the emergency room the next morning with them to seek treatment. She was subsequently prosecuted and sentenced to six years in prison for ‘concealing a birth’. Even though she went to the hospital the next morning. 

NAPW Executive Director Lynn M. Paltrow said, “The concealing birth law and this prosecution will leave pregnant women in Arkansas with extreme confusion about what to do when they have a stillbirth or miscarriage at home. If a woman waits even one minute before calling the authorities, she could potentially be charged with concealing a birth.”

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In Pennsylvania, when Jennifer Whalen‘s sixteen-year-old daughter became pregnant and wanted to terminate the pregnancy. Jennifer obtained abortion pills and they safely terminated the pregnancy at home. Mainly in part due to the lack of access, cost and regulations that were designed to make it difficult for women to get abortions. What she didn’t know, was that buying the pills was illegal. She received eighteen months in jail.  

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One of the women’s stories, that of Bei Bei Shuai, truly shone a light on the cold-hearted and ruthlessness of prosecutors to criminalize pregnancy.  An immigrant from  China, living in Indiana. She tried to commit suicide during her pregnancy due to depression. by eating rat poison. She survived the suicide attempt, but her baby died a few days after birth. Initially charged with murder, then pleased down to criminal recklessness. She was sentenced to 178 days in jail and given credit for 89 she actually spent at the Marion County Jail and for another 89 days of “good time.”

While all these cases are different in circumstances, one aspect that unites them all is the refusal of the courts to see women as having autonomy over their own bodies. 

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As executive director of the National Advocates for Pregnant Women, Lynn Paltrow, cautioned in a New York Times interview in 2012, “there is no way to treat fertilized eggs, embryos and fetuses as separate constitutional persons without subtracting pregnant women from the community of constitutional persons.”

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Associate Editor, USA | Contactable via [email protected]

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