Gender, Pregnancy, Prison: Legal And Ethical Tangles

After being arrested in 2005 for forging checks, Amber Lovill failed multiple drug tests while on probation. After failed yet another drug test while pregnant, she was jailed for the good of the child. Activists say this constitutes gender discrimination.

[Lovill's] cause has been taken up by civil liberties and women's rights groups who complain that Lovill was treated more severely than a man or nonpregnant woman in the same situation.

"Women should not be incarcerated because of their pregnancy. It's not healthy for pregnant women or the fetuses or future children that they carry," said Kathrine Jack, staff lawyer at National Advocates for Pregnant Women. "This is just another example of very old stereotypes being used to punish or discriminate against a woman."

Prosecutors say Lovill was targeted for violating her probation, not for being pregnant. But probation officers also were entitled to take action to protect the fetus from Lovill's drug use, said Doug Norman, Nueces County assistant district attorney.

"The use of illegal drugs during pregnancy clearly has an impact on the health of the unborn child that is beyond serious dispute," Norman told the Texas Court of Criminal Appeals in a brief. "The state clearly has an interest in healthy children."

Oral arguments in Texas v. Lovill, PD-09-0401, will be Wednesday in the appeals court's downtown Austin courtroom.

Women's Take, a site run by the National Women's Law Center, points out flaws in the state's reasoning:

Jill offered a presentation called "Prosecuting Pregnancy," where she talked about state actions that criminalize the medical decision-making and drug use of pregnant women. For example, women have been criminally prosecuted with such charges as child endangerment, neglect, or fetal homicide when their newborn infants test positive for drugs at birth. Jill posed the question: Is it right to prosecute pregnant women when they (or their newborn children) test positive for illegal drugs while we don't prosecute anyone else for who tests positive for illegal drugs? And she answered it for us, too: No, she said, because having illegal drugs in your body is not a crime — even for a pregnant woman. Jill explained that the Supreme Court has held that it is unconstitutional to criminalize a person's status, including the status of being an addict. A person can be charged with possession of a drug, but the appearance of that drug in their system can't be a crime.

Now, obviously, the issue is a complicated and contentious one. I think that most people are uncomfortable with the notion of pregnant women using drugs.[...]

However, there are two questions that must be asked when looking at the way we currently punish pregnant women. First: Is it constitutional to criminalize pregnant women's actions during their pregnancies? Jill asked. The answer, is no. It is not equitable, legal, or constitutional to apply the law differently to pregnant women than anyone else. A recent example of this unconstitutionality in action is the State of Texas v. Amber Lovill. When Amber Lovill tested positive for drugs while pregnant and on probation, the state moved to revoke her probation and incarcerated her for the duration of her pregnancy. As the Webwire story on this subject notes, officers in the trial acknowledged numerous times that if Ms. Lovill were not pregnant, "less restrictive alternatives would have been the typical response to a positive drug screen."

The second question that must be asked when looking at the prosecution of pregnant women for their drug use: Is it an effective public health strategy to criminalize pregnant women's actions during their pregnancies? And the answer to this question is also a resounding no. First of all, it can sometimes in fact be more dangerous to the fetus for a pregnant woman to stop using certain drugs suddenly than it would be for her to continue using them. As the National Center on Addiction and Substance Abuse at Columbia University has shown, "It is important for the health of both a pregnant woman and her fetus to be under close medical supervision when she stops her drug use, particularly if she is addicted and if the drug to which she is addicted causes withdrawal symptoms." More broadly, as Jill has said, threats of prosecution just scare women away from drug treatment and prenatal care.

The ACLU has filed an amicus brief in support of Lovill.

This conversation is most certainly complicated. After all, I, like many on this site, am staunchly pro-choice and so I do not believe that a fetus should have rights, particularly if those rights trump the mother's. In addition, I am against the incarceration of non-violent offenders. However, memories of the 1980s crack epidemic are quite haunting, and I know of too many people who ended up wards of the state because their mother never could manage to get her addiction under control. If incarceration is helping to protect the child for exposure to harmful drugs and could possibly lead to treatment, is this a better way? If this child is intended to be carried to term, does it make things different? Is there ever a "right" to intervene?

Jailed for being pregnant? [American Statesmen]
A Lesson On Prosecuting Pregnancy [Women's Take]
State Of Texas V. Lovill - ACLU Amicus Brief In Support Of Respondent [ACLU]