Criminalizing Pregnancy: How Feticide Laws Made Common Ground for Pro- and Anti-Choice Groups

Ask Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women (NAPW) what reproductive justice means to her and the answer is immediate: The right to have a child, as well as the right to end an unwanted pregnancy.

This dual focus differentiates NAPW from other pro-choice groups. Since its 2001 founding, the organization has not only worked to keep abortion legal, but has also organized against fetal protection and chemical dependency laws that pit women against the fetuses they carry and the babies they deliver. As it does so, it calls into question attitudes about race, class and parenting. NAPW further challenge policymakers to offer more than punitive solutions that most often penalize low-income women of color instead of addressing social problems that affect everyone.

One of NAPW’s most pressing cases is that of Bei Bei Shuai, a 34-year-old Chinese immigrant who came to the United States more than ten years ago. Shuai was held in an Indiana jail for more than 14 months before being released on $50,000 bail in mid-May. Her crime? Attempting suicide when she was eight months pregnant. Shuai’s story is a large-scale tragedy and begins with her betrayal by Zhiliang Guan, the man she’d hoped to marry. When Guan confessed to having lied to her – he was still married, not divorced as he’d told her, and planned to return to his wife despite having gotten Shuai pregnant – Shuai became so despondent that she ingested rat poison.

But she did not die. When friends discovered what she’d done, they took her to the hospital, where she was treated and the fetus was monitored. “She consented to everything the hospital suggested,” Emma Ketteringham, NAPW’s director of legal advocacy, reports. “She agreed to have a C-section and to let the hospital do whatever tests they wanted to do. On December 31, 2010, a baby, who Bei Bei named Angel, was born.”

“At first it seemed like the child was okay, but after a few hours it became clear that she wasn’t,” explained Ketteringham. “Angel was put on life support and Bei Bei was counseled that the baby could not live without the machines. Angel died on January 3, in her mother’s arms.”

Shuai later learned that the hospital workers she’d trusted had been speaking to homicide detectives and the coroner’s office about her suicide attempt; shortly after Angel’s death, she was charged with attempted murder and feticide. If convicted, she could serve up to 65 years in prison.

Shuai is not an anomaly. According to the National Conference of State Legislatures, 38 states have fetal homicide laws on the books; 23 apply at every stage of gestation, from fertilization to delivery. The remainder apply only after quickening – the point at which the fetus can be felt moving – or in the third trimester. What’s more, the 2004 Unborn Victims of Violence Act, signed into law by George W. Bush, reinforces the separation between women and fetus, making a child in utero a legal victim if he or she is injured or killed during the commission of a federal crime. While these laws were promulgated to punish third parties who hurt expectant mothers, NAPW notes that, more often than not, they’ve been used to prosecute pregnant women. Similarly, anti-drug chemical endangerment laws have led to numerous convictions for delivering a controlled substance to a minor.

NAPW staff – three lawyers, two researchers, several interns and an office manager – quickly reel off a roster of cases ranging from the surreal to the unbelievable.

There’s Christine Taylor, a pregnant mother of two, who went to an Iowa emergency room after falling down a flight of stairs in her home. During the course of the examination, she spoke with the nurse and confided that she had not initially wanted another baby since she was separated from her husband and was already extremely stressed out. She also told the nurse that she’d debated abortion and adoption, but had ultimately concluded that she would carry to term and raise the child herself. After listening to Taylor’s account, the nurse went to law enforcement authorities, telling them that she believed Taylor had intentionally tried to end her pregnancy. Taylor’s confidential medical records ended up in the hands of the police, and she spent two days in jail before the charges were dropped for lack of evidence.

Then there are the 60 Alabama women – almost all of them low income – who have been arrested under the state’s Chemical Endangerment Act of 2006. According to activists, the law was passed to deter people from bringing children into meth labs, but they report that it has been used against pregnant women who test positive for drugs. “The vast majority of these women have given birth to healthy babies,” Ketteringham says. But apparently, that’s beside the point.

According to the Substance Abuse and Mental Health Services Administration of the Department of Health and Human Services (SAMHSA), [www.SAMHSA.gov] slightly more than five percent of pregnant women use illegal drugs – the figure rises to 12.8 percent for those ages 15-17 and declines with age. Eleven percent drink, and 16.4 percent use tobacco. While SAMHSA’s web site makes clear that all of these substances are counter-indicated during pregnancy, it highlights the fact that cigarettes can be as damaging to a developing fetus as illegal drugs, increasing the risk of miscarriage, separation of the placenta from the uterine wall before delivery and low-birth-weight babies.

So, here’s the question: Should pregnant women who use these products be locked up until they deliver and monitored to ensure that they abstain? What about those who refuse to wear seat belts? How about women who defy doctor’s orders and don’t stay in bed, or continue to have sex after being told not to?

Stop snickering and rolling your eyes – it’s not as preposterous as it sounds.

Meet KP, a Maryland woman arrested for shoplifting when she was seven months pregnant. After she tested positive for cocaine, KP was sent to a state detention facility for two months. The rationale? It was in the state’s interest to make sure she remained clean in order to “protect the health of her fetus.”

Hundreds of similar examples – NAPW concedes that as a small, underfunded group, they have no idea how many cases have actually been brought nationwide – have led to a dossier of anecdotes. There’s the New Jersey woman who refused to pre-authorize a Caesarian section only to be charged with “reckless endangerment of fetal life” as a result of the refusal. And there’s Jennie Linn McCormack, an Idaho woman who used to Internet to order RU-486, an FDA-approved abortifacient, and was subsequently arrested under an archaic state statute barring “self abortion.”

As they reel off case after case, Paltrow, Ketteringham and others at NAPW strenuously contend that using criminal prosecution to deal with drug addiction, mental illness or violations of law or policy is both ineffective and inhumane. While they’re not underestimating the toll of drug abuse, they assert that the money expended on prosecuting users would be better spent on improving rehab facilities so they can accommodate mothers who want to keep their children with them. More than 100 groups – from the March of Dimes to the American Medical Association and the Drug Policy Alliance – agree, and have signed onto amicus briefs in support of arrested or incarcerated women.

Several anti-abortion groups are also on board. “A lot of people who call themselves pro-life are really pro-lives,” Paltrow says. “They’ve grown up in a community or culture that genuinely values pre-born lives, and they’d love to see an end to abortion. At the same time, they value the lives of pregnant women and do not want to see them go to jail because they’ve given birth.”

A small, two-year-old anti-choice group called All Our Lives [www.allourlives.org] is leading the pack in denouncing feticide and chemical dependency laws. As they see it, if a woman – whether drug addicted, mentally ill or simply poor – opts to carry a pregnancy to term, she should be assisted, not condemned or arrested. Women will abort if they know they’ll be charged when they deliver, All Our Lives concludes. “This criminalization is being pushed in the name of establishing rights of unborn children. Punishing children and pushing up the abortion rate doesn’t accomplish this,” their web site states.

NAPW wholeheartedly agrees. “Eighty four percent of women will become pregnant and will have given birth by the time they’re in their 40s,” says Paltrow. “Sixty-one percent of those having abortions are already mothers. They don’t articulate it as, ‘my body, my choice.’ When they talk about their abortions, they talk about values, responsibility, and taking good care of themselves and their families.”

These facts, Paltrow continues, suggest a way to reach people who have never before taken a stand on reproductive rights. “If pro-choice advocates acknowledge that the vast majority of women who have abortions are the same women who have babies, they have the opportunity to reframe the debate,” she wrote in a 2011 issue of New York University’s Review of Law and Social Change. “They will find many more potential allies to work with to ensure not only the right to choose abortion, but also to advocate for the social and economic conditions necessary to enable pregnant women to make real choices.”

After all, she concludes, “If you support a culture of life, don’t you have to support the women who bring that life into the world?”