This fall, Rewire will be running a series on the "criminalization of sex" worldwide, written by a range of domsestic and international authors.  The series will include a focus on criminalizing sexual activity, specific actions in pregnancy, sexual orientation, and HIV transmission.  Lynn’s post today raises some of the issues evident in the trend toward criminalization of sex in the United States and abroad.

Today a group of 52 Texas and national medical, public health, and child welfare experts and advocates filed an amicus curiae (friend-of the-court) brief with the Texas Court of Criminal Appeals in support of Amber Lovill, a woman who was incarcerated because she was pregnant. The brief urges the Court of Criminal Appeals to affirm a lower court decision finding that the State discriminated against Ms. Lovill by incarcerating her because she was a pregnant woman. 

This case involves Ms. Amber Lovill who became pregnant while she was on probation for a non-violent crime. After successfully serving more than two years of her three-year probation sentence, which included the requirement that she address her drug problem and abstain from drug use, Ms. Lovill experienced a single relapse. Because Ms. Lovill was pregnant, her probation officers departed from normal practice and filed immediately for probation revocation. They contacted the local warrant officer to have Ms. Lovill arrested immediately and incarcerated in the Nueces County Jail.   Probation officers acknowledged that her pregnancy and their alleged concern for the health of Ms. Lovill’s “unborn” child motivated the arrest and imprisonment. 

The amicus brief filed today notes that the State resorts to age-old stereotypes to defend its decision to incarcerate Ms. Lovill. The State attempted to justify her incarceration by arguing that it is “common knowledge” that “pregnancy causes added stress, anxiety, and physical sickness to the expectant mother, which makes it difficult to comply with conditions ofprobation and to maintain the willpower necessary to overcome a drug addiction.” According to this reasoning, pregnancy would also make women unfit to work, continue their education, serve on juries, and perform many other daily tasks. 

The State defended locking Ms. Lovill up in a county jail that provided no drug treatment or specialized health care claiming that doing so would “reduce danger to [the] unborn child” and ensure that “her child,unborn child, can be cared for in an environment where we can have some assurance that it is safe.” 

As a result of the probation revocation, Ms. Lovill spent the duration of her pregnancy in Nueces County Jail, where the Corpus Christi Caller-Times had recently drawn attention to the “squalor” there and describing a pregnant woman forced to sleep on the floor. “Many Texas jails and the Nueces County Jail in particular have a dismal history of failing to provide adequate health care and humane conditions for pregnant women. The incarceration of a pregnant woman is risky for both her and the baby she carries, so the idea that incarcerating a pregnant woman will protect her orher future child is absurd," said Diana Claitor of the Texas Jail Project. 

While the Amici do not endorse the non-medical use of drugs– including alcohol or tobacco – during pregnancy, theses experts and advocates agree that Ms. Lovill’s incarceration is not justified by medical and scientific research and would actually increase danger to the health of pregnant women, mothers and children. “A woman should never be penalized because she is pregnant,” explained Dr. Charles Brown, President of the Texas Association of Obstetricians and Gynecologists.

Moreover, as the amicus curaie brief points out, the State’s assumptions about pregnancy and methamphetamine lack scientific basis and are inaccurate with regard to drug treatment. Research shows that pregnant women are especially motivated to address their drug problems and, when they receive treatment addressing their needs, have good outcomes. 

The case is Ex parte Amber Lovill, PD-0401-09.  Lawyers on the brief include Cori Harbour of the Harbour Law Firm in El Paso and Kathrine Jack and Lynn Paltrowof National Advocates for Pregnant Women. The Amicus Curiae brief of these medical, public health and child welfare experts and advocates can be found onthe National Advocates for Pregnant Women’s website:http://advocatesforpregnantwomen.org/briefs/Lovill_TexasAmicusBrief.pdf

The ACLU and ACLU of Texas also filed an amicus brief:

http://www.aclu.org/reproductiverights/gen/40485prs20090729.html

Ms. Lovill is represented in her appeal by Brian Miller of Royston, Rayzor, Vickery & Williams, LLP of Corpus Christi.

Groups and individuals signing on the amicus curiae brief are: Texas Association of Obstetricians and Gynecologists; American Society of Addiction Medicine; National Council on Alcoholism and Drug Dependence; Central Texas Council on Alcoholism and Drug Abuse; National Association of Alcohol and Drug Abuse Counselors (NAADAC); The International Center for Advancement of Addiction Treatment; American Nurses Association; Association of Reproductive Health Professionals; Center for Children of Incarcerated Parents; Center for Gender and Justice; Chicago Legal Advocacy for Incarcerated Mothers; Child Welfare Organizing Project; Connecticut Women’s Consortium; Drug Policy Alliance; Family Justice; Global Lawyers & Physicians; Institute for Health & Recovery; Harm Reduction Coalition; Interfaith Drug Policy Initiative; Law Enforcement Against Prohibition; Law Students for Reproductive Justice; Legal Services for Prisoners with Children; Mills County, Iowa MOMs Off Meth; National Asian Pacific American Women’s Forum; National Association of NursePractitioners in Women’s Health (NPWH); National Association of Social Workers; National Association of Social Workers, Oklahoma Chapter; National Associationof Social Workers, Texas Chapter; National Coalition for Child Protection Reform; National Latina Institute for Reproductive Health; National Network forWomen in Prison; National Women’s Health Network;  National Women’s Prison Project, Inc.; The Osborne Association; Physicians for Reproductive Choice and Health; SisterSong Women ofColor Reproductive Health Collective; Texas Jail Project; Women’s Prison Association; Whole Woman’s Health; Howard Brody, MD, PhD, Dir. of Institute for the Medical Humanities, Univ Of TX Medical Branch; Fonda Davis Eyler, PhD; Deborah A. Frank, MD; LeslieHartley Gise, MD; Randy Glassman, MD; C. Ronald Koons, MD, FACP; Anna C. Mastroianni, JD, MPH; Howard Minkoff, MD; Lawrence J. Nelson, PhD, JD; EliReshef, MD; Lois Shepherd , JD; Timothy Thorstenson, Ethicist; Elisa Triffleman, MD.