The Policing of Native American Pregnancies Has to Stop

Photo: Comanche County Jail

Last month, a 21-year-old Oklahoma woman was convicted of first-degree manslaughter after losing a pregnancy in her second trimester. Brittney Poolaw, who’s Native American and a member of the Comanche Nation, experienced a miscarriage and stillbirth in January 2020 and was sentenced in October to four years in prison.

Poolaw’s sentencing came after a medical examiner confirmed that her 15-17 week fetus had congenital abnormalities and tested positive for methamphetamine. Her story is part of a rising trend of people being criminalized for the outcomes of their pregnancies across the country, and especially in Oklahoma, which notably has the second highest population of Indigenous people in the country.

In 2017, Oklahoma’s district attorney announced heightened measures to prosecute pregnant people who are alleged to have used criminalized drugs, including weaponizing its felony child neglect laws. And just as data shows that non-white people experience higher rates of stillbirths, miscarriage, and pregnancy complications than white people, state surveillance and criminalization of these outcomes — especially where drug use is alleged to be a factor — isn’t race-neutral, either.

People of color and especially Native American people like Poolaw have historically faced higher rates of pregnancy- and drug-related criminalization, often stemming from particularly cruel use of feticide and child abuse laws by prosecutors. Nicole Martin, who is Laguna Pueblo and Navajo and a co-founder of the reproductive justice group Indigenous Women Rising, sees this phenomenon as a modern extension of colonization. “All of the United States infrastructure was founded on stolen land, the genocide of Native people, the enslavement of Black people,” Martin told Jezebel. “And those are two of the groups who face the highest rates of criminalization, maternal mortality, infant mortality — that’s the way that the system was intended to work.”

According to Martin, pregnancy criminalization, particularly around substance use, builds on a persistent history of white supremacist standards for “good parents” and “bad parents” being used to isolate Indigenous pregnant people from their communities. “There’s always been a history of Indigenous people being criminalized for not being fit parents, if you look at the Indian Child Welfare Act, separating youth from their families and putting them in non-Indigenous households, as a way to overturn tribal sovereignty and culture,” Martin said. “Brittney Poolaw, all of this, this is part of that — it’s taking people away from their communities with criminalization.”

Twenty-three states and the District of Columbia have laws that equate drug exposure during pregnancy with child abuse, while 25 states and DC require health professionals to report suspected prenatal drug use, according to Guttmacher. In 38 states, “fetal assault” laws define an embryo or fetus as the potential victim of a crime.

Native American women and pregnant people are more likely to be impacted by these laws, as their communities struggle with disproportionately high rates of drug addiction and severely strained access to health care, resources and support. Per a 2012 report, about 2.5% of American adults in addiction treatment are Native American, though Native American people account for about 1% of the total population. One study of 342 Native American patients at a hospital near the Great Lakes found 34.5% of their pregnancies were “substance-exposed.”

Martin notes the insidious policies that criminalize substance use during pregnancy can also be traced to the anti-Black War on Drugs. The myths and propaganda of the racist, 1980s public health panic known as the crack epidemic saw Black pregnant people routinely subjected to mandated drug-testing, with positive drug tests treated as proof of child neglect and grounds to separate parents from their newborns, or criminalize rather than offer help to struggling pregnant people.

“Addiction or substance use doesn’t mean [someone is] disposable, or they should be denied dignity or humanity,” Martin said. “The hardest thing to witness right is when others have internalized this, and will use this as a reason to punish or deny rather than give people actual care.”

Criminal charges for miscarriages and stillbirths have tripled in recent years, from 413 prosecutions between 1973 and 2005, to about 1,200 between 2006 and 2020, according to National Advocates for Pregnant Women. While Poolaw’s case may have shocked many, Martin and IWR have been organizing for pregnancy and abortion decriminalization in her home state of New Mexico for years, recognizing the disparate threat this poses to Indigenous people and other people of color. Martin and IWR helped lead the movement to pass a bill that formally repealed an outdated law criminalizing abortion in the state earlier this year.

“There were so many community members, Indigenous community members, Black folks, migrants, trans folks, who showed up for this, and we got it repealed,” Martin recounted. “It was like a breath for a moment — but then there was so much more we’ve had to be proactive about.”

Even with progress like New Mexico’s decriminalization bill, pregnant Indigenous people remain exposed to greater risk of criminalization across the country, as they’re more likely to use state-sponsored public health and social services programs, most of which have mandated reporting policies for suspected drug use. Tribes across the US also have their own legal approaches and policies to address substance use during pregnancy, and a 2020 review of available tribal laws from the AMA Journal of Ethics found substance use during pregnancy is criminalized in most tribes, with varying responses or penalties. The Journal notes that tribes like Navajo Nation and White Earth Nation mandate substance use treatment programs, while tribes like the Little River Band of Ottawa Indians and Standing Rock Sioux Tribe treat substance use during pregnancy as child abuse.

Consequently, pregnant people who may have used substances or are struggling with addiction are discouraged from seeking any kind of health care out of fear of jail time. Martin notes many pregnant Indigenous people already choose home births, not just due to concerns about drug testing, but also persistent mistreatment in the health system. Indigenous people are twice as likely to die from pregnancy-related causes as white people, according to federal statistics.

Martin says IWR, which offers abortion funding, midwifery services, sex education, and other reproductive health resources primarily to Indigenous communities, emerged to challenge the enduring “legacy of white supremacy in the health system.” She notes that the recent rise in legislative attacks on abortion rights could contribute to a rise in pregnancy criminalization, too— particularly for Black, Indigenous, and people of color. Without the legal right to abortion, all pregnancy losses would be subject to even further criminal suspicion and surveillance.

As pregnancy criminalization for substance use continues to disproportionately impact and endanger Native American pregnant people, some Indigenous spaces and pregnancy and maternal care providers are modeling compassionate approaches that support rather than dehumanize people who may be struggling.

Melissa Rose, an Akwesasne Mohawk midwife who works with Indigenous Women Rising’s birthing fund to provide care to Native American women across New Mexico, tells Jezebel she became a midwife following her own experiences with racism from white health care providers.

“So many times I’ve been told, ‘Oh Native Americans are predisposed to addiction and substance-abuse disorders.’ I’ve been disrespected and had assumptions made about me that have delayed care and led to misdiagnosed illnesses,” Rose said. “I’ve flat-out been told by a doctor that [alcoholism] it’s genetic, and I’m predisposed because of my heritage to have a struggle with alcohol.”

Rose says when she asked her doctor to point to “the gene that causes this,” her question “led to a whole conversation, and me advocating for my own humane treatment with someone I depended on for medical care.”

“It was an unsafe situation because of the power dynamics involved, and it happens over and over again when I and other Native people attempt to access medical, mental health, and substance use services,” Rose said. “I didn’t drink because I’m Native. I drank to survive colonialism. I learned coping mechanisms to all of the layers of experienced and inherited trauma from my family.”

Rose also recounts being “dismissed and disrespected” when she gave birth at 16-years-old in a military hospital in Oklahoma, at one point having her newborn taken away from her for four hours. “The lack of a culturally matched provider, whether in reproductive health care choices, medical care, mental health, or substance use treatment, really contributes to adverse health outcomes, and constant retraumatization,” she said.

As a midwife serving Native pregnant people and families today, Rose is guided by her own experiences to “meet people where they are” — quite literally, as she often drives across New Mexico to visit clients at their homes in both urban and rural areas, and on reservations across the state. Her visits range from prenatal to postpartum appointments, and general checks on mothers, their babies, and their families. Phone consultations over FaceTime have sometimes been more difficult, as Rose says “internet access can be a struggle for a lot of Indigenous people in rural communities, so it’s sometimes just easier sometimes to go there.”

Rose says that the disproportionate threat of criminalization that Indigenous pregnant people face compounds with a range of other existing issues, and cases like Poolaw’s and others don’t happen in a vacuum. “In general, access to health care for our communities is already not great, so add on top of it, these fears for criminalization that create barriers,” she said. “It does contribute to these unsafe outcomes.”

Rose has previously met with members of Congress about issues like the inaccessibility of prenatal care and especially midwifery services for Indigenous pregnant people, overly long wait times for pregnancy-related appointments with the Indian Health Service, and the Hyde Amendment, which prohibits coverage of most abortion services by the IHS. But in addition to these important demands, Rose emphasizes the importance of “culturally matched providers of care” for Indigenous pregnant people, which can make “a drastic difference in pregnancy outcomes.”

“Your client doesn’t need to have the language to explain all of the histories and traumas that they’re having to navigate, because it’s in our bones,” she said. When it comes to meeting the needs of her clients who may struggle with substance use, Rose stresses the importance of ensuring the care she provides “is trauma-informed, tailored towards the most vulnerable, which probably would be Indigenous people struggling with different forms of trauma or substance use.” It’s her goal to ensure her clients “can feel safe” coming to her for care, no matter what conditions they may be struggling with.

In Blackfeet Nation in Browning, Montana, one of the largest reservations in the US, Blackfeet Community Hospital is also determined to put care over criminality, Dr. Kendall Flint, director of the hospital’s Women’s Health Center, told Rewire in 2018. Dr. Flint noted that “urine drug screening doesn’t improve or positively affect patient outcome,” and the decision to reject universal drug screening was guided by input from their patients.

“Our patients told us repeatedly that they don’t come and their friends don’t come for prenatal care, because of their belief that we would do urine drug screening on them, and would share that information with law enforcement, and become part of a punitive rather than a caregiving team,” he said.

One of the primary goals at the Women’s Health Center is to raise awareness that it doesn’t practice universal, nonconsensual drug testing, to encourage pregnant patients to seek prenatal care before giving birth, and consequently improve maternal health outcomes. “The relationship we have with our patients is among the most important interventions we can work with,” Dr. Flint said. “Whether it’s a long relationship we had the chance to nurture through many visits, or situations where that’s the first time we meet the patient, that relationship is critical.”

In not requiring drug screenings, Blackfeet Community Hospital aims to reach and serve patients who might otherwise not have sought prenatal care. This is a model that can work—especially in conjunction with improving the overall political treatment of Indigenous people in America.

As the threat of pregnancy and abortion criminalization rises for all people, Rose stresses that Indigenous groups will always be disproportionately affected, and that they’re safer and experience better health outcomes when they “have access to all the different variations of sovereignty, like food sovereignty, land sovereignty, cultural reclamation, body sovereignty.”

“We need access to our sacred sites, to our plant medicines, to our cultural teachings around pregnancy,” she said. “This is about sovereignty.”