'Every Pregnancy Is a Risk of Harm': How Criminalizing Miscarriage Could Play Out

By Molly Osberg | May 16, 2019 | 7:30pm

Justice Politics

'Every Pregnancy Is a Risk of Harm': How Criminalizing Miscarriage Could Play Out

In the early ’90s, Dara Michelle Luster, a 28-year-old mother of three, was struggling with a cocaine addiction, and state prosecutors decided to make an example out of her. This was 1991 when the “crack baby” panic, based on a handful of flawed studies, had become the central vehicle for many Americans’ racial paranoia. Experts spoke to the New York Times about drug-addled children who lacked the “central core of what it is to be human,” flooding America’s schools and society as a whole.

Luster had attempted to seek treatment for her addiction twice, but found she could only afford seven days out of a 28-day program. Around the same time, she became pregnant. When she gave birth, that March, the baby was healthy. A social worker asked if Luster had taken drugs while she was pregnant. She responded that yes, she had. “Because I wanted to tell the truth. I wanted to get help,” she would later claim.

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By the time Luster had been formally charged by the state, she would be referred to “Georgia’s most famous crack mom” in the local press.

Instead of getting help, according to press reports, a detective handcuffed Luster shortly after she admitted to having taken drugs. She spent four months in prison, where she was so depressed she was placed on suicide watch. One of the charges levied against her was that she’d distributed drugs to her child while it was still in utero.

Luster’s lawyers argued, successfully and again upon appeal, that Luster’s child wasn’t a legal entity, and thus could not be “furnished” with drugs, according to state law. The precedent upheld in Georgia, albeit uneasily: Six years later, an 18-year-old woman shot herself in the stomach while pregnant and was preliminarily charged with feticide. The case was dismissed when the state was unable to find a statute that “would appropriately address the seriousness” of her act. In 1998 Kenlissa Jones, unable to afford an abortion, bought misoprostol, a drug sometimes used off-label to induce miscarriages, online. She had her baby in the car on the way to the hospital—it lived for 20 hours—and was charged with malice murder and possession. After a legal review from the court, the murder charge was similarly dismissed.

“That precedent was clear” in all these cases says Lynn Paltrow, the executive director of National Advocates for Pregnant Women, a nonprofit that provided legal assistance to some of these women. “Now, in Georgia, it’s been upended.”

Last week, Georgia Governor Brian Kemp signed one of the nation’s most restrictive abortion laws, effectively prohibiting abortion after the moment “embryonic or fetal cardiac activity” is detected. On Wednesday, Alabama Governor Kay Ivey passed a law that would punish doctors who perform abortions with life in prison. Legislatures in at least 16 states are considering or have already passed similar laws, most of which have been interpreted as direct challenges to Roe v. Wade.

But in addition to its abortion restrictions, the Living Infants Fairness and Equality Act in Georgia legally defines a fetus as a “natural person” with “full legal recognition”—meaning, for instance, that Luster could very feasibly have been charged with “delivering” drugs to her unborn child, even after she gave birth to a healthy girl. Or, as others have suggested, a woman could be penalized for unintentionally miscarrying, though it’s likely the justice system will be picky about which classes of people are slapped with that particular charge.

Paltrow’s group has been tracking the criminalization of pregnant women for decades: The National Advocates for Pregnant women have tracked and analyzed over 1,000 cases since the mid-70s in which state-level “fetal rights” provisions have been invoked to punish women who have become pregnant. Black women and low-income women are more likely to be arrested for these pregnancy-related charges. In many instances, drugs—or the suggestion of drug use—is prominently involved.

“One of the frustrating things for us, with the Georgia laws and others, is that it kind of perpetuates this fraud on the public,” Paltrow says. “It makes people think it’s taking away one right, the right to abortion. But it’s creating precedent for subtracting women from the constitutional community.” Technically, she says, under the Georgia law, a woman could be punished for doing any harm, broadly defined, to her unborn child: continuing to work, refusing bed rest, refusing a C-section. And as has been her experience in decades of litigation, these punishments are usually selectively doled out.

“The point of prohibition—with alcohol, with drugs, with abortion—is to give the government more power to control certain groups of people,” she says.

Since the law was signed, there has been some debate over whether women who miscarry for any reason could be questioned or prosecuted under the new Georgia statute. Slate suggested women who lost a pregnancy could theoretically be held responsible and imprisoned for up to 30 years, a claim a Planned Parenthood representative told the Washington Post was overblown. Eric Segall, a law professor at Georgia State University, told the New York Times that technically, the law suggests “women who ‘cause the death’ of a fetus, with or without malice, could be charged with second-degree murder.” It would largely be up to prosecutors to decide, he added: “Though one would hope that there would be a political cost if they did.”

This is, of course, a horrifying prospect: Nearly one million pregnancies end in stillbirth or miscarriage annually, and it’s often nearly impossible to divine their cause. That prosecutors would fear a “political cost” in the current environment is optimistic to the point of being absurd, though it does suggest that a law criminalizing, say, the loss of a pregnancy would be most likely applied to a woman already considered somewhat undesirable: Like a mother who took drugs while she was pregnant, or someone who miscarried because of what was perceived as some prior fault. Paltrow likens this to Nixon-era legislation and some of the legislation to emerge from the so-called the war on drugs: laws that could effectively criminalize an entire class of people, under the guise of “protecting” a country’s vulnerable citizens from violence and crime.

That a woman who is going through what can be a deeply traumatic experienced can theoretically be punished for an unintentional loss of a pregnancy reflect a broader—and crueler—indifference about women’s bodies and how they work.

As many as 50 percent of miscarriages are simply the product of an extra or missing chromosome. Being under- or overweight or being over the age of 45 have been associated with higher chances of experiencing the loss of a pregnancy. Chronic conditions liked diabetes—which in itself most often afflicts black and low-income Americans—increases the chances of a miscarriage. Some studies suggest women working long hours, or overnight shifts, are more likely to lose a pregnancy as well. The inevitability of miscarriage, combined with these environmental factors, makes it a particularly stark example of how this law may be used to punish women for things they—and the medical community—can’t control.

Previous cases give us the best idea of how Georgia’s law will play out in local courts, and who may be targeted first. In Indiana, feticide laws put Chinese immigrant Bei Bei Shuai in prison in 2010 after she attempted to commit suicide while pregnant. She was there for a year before eventually taking a plea deal. In 2016, Purvi Patel, an Indian American, was sentenced to 20 years after she delivered what she claimed was a stillborn fetus and disposing of it in a dumpster. That sentence was later overturned. Still, the Patel sentenced spooked so many people that Rewire News interviewed a pregnant woman who was carrying around a ziplock bag in case she miscarried.

If she miscarried, she hoped to catch whatever blood came out of her and bury it, in accordance with Indiana’s at-the-time recent fetal remains law.

“All of a sudden I felt like I was a walking attempted murder,” she told the publication. And Paltrow maintains that criminalizing miscarriage is only one piece of the larger problem, which is that every conception is now an opportunity for murder in the eyes of Georgia law: That every woman is carrying a massive legal liability inside her body until she delivers a healthy child.

These laws are really about “whether pregnant women can be held legally accountable for harming [their child], or creating the risk of harm–which is breathing,” says Paltrow. “We know that every pregnancy has a 15 to 20 percent chance of ending in miscarriage.”

“From the personified, fertilized egg’s perspective, every pregnancy is a risk of harm.”