For more on the criminalization of pregnancy, check out our special edition.
When news broke that Brittney Poolaw, a 20-year-old Native woman, had been convicted of manslaughter because prosecutors claimed drug use had caused her to deliver a stillborn fetus, it felt wrenchingly familiar. A birthing person, often nonwhite, miscarries. They are investigated for it. Then they are prosecuted.
It happened to Purvi Patel, a then-33-year-old Indian American woman who was sentenced to 20 years in prison for feticide and child neglect after she delivered a stillbirth and put the products of pregnancy in the trash, unsure of what else to do. She was convicted largely due to the results of a “lung float test,” which posits that the lungs of the fetus would float if it had taken a breath, though the procedure has been largely discredited by forensic experts.
Patel was imprisoned for a year and four months before the conviction was overturned on appeal. In the aftermath, a New York Times headline read: “Purvi Patel Could Be Just the Beginning.”
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Still, her case wasn’t the beginning, nor was it the end. She was in the middle of a long history of pregnant people who have been criminalized for their pregnancy outcomes. There was also Bei Bei Shuai, a Chinese immigrant who attempted suicide while pregnant in 2011. She was imprisoned for 435 days. Anna Yocca, a white woman in her early 30s who had been working a Kroger deli counter in Tennessee, was imprisoned for 13 months after she attempted to manage her own abortion using a coat hanger. Even as far back as the ‘90s, this was happening: In 1999, a South Carolina Black woman named Regina McKnight was arrested on homicide charges for a pregnancy loss. The case was a direct result of the “crack baby” panic of that time, which largely targeted Black families. (Nearly a decade later, the South Carolina Supreme Court ruled that the trial was unfair and threw out the case.)
The number of these cases is increasing. A study by National Advocates for Pregnant Women, a reproductive justice organization, found that between 1973 and 2005, there were 413 cases in which a pregnant person’s civil liberties were denied on the basis that they were endangering a fertilized egg, an embryo, or a fetus. NAPW has said that between 2006 and 2020, they pinpointed 1,254 such cases.
Poolaw miscarried at home. She called 911, and an ambulance brought her to the Comanche County Memorial Hospital, where she told staff that she had recently used marijuana and methamphetamines. She was arrested two months later, jailed for a year and a half because she couldn’t afford the $20,000 bond, and eventually convicted of first-degree manslaughter. Despite expert witness testimony that it would be nearly impossible to prove that drug use caused the miscarriage, she was convicted, similarly to the use of the dubious “lung-float test” in Patel’s case. The legality doesn’t quite work either: As Rewire News Group’s Caroline Reilly points out, the fetus was at about 17 weeks’ gestation, which is not considered viable, and viability is a necessary component in Oklahoma law for manslaughter charges.
As long as abortion bans continue to pass through state legislatures, the potential for birthing people to be surveilled for their pregnancy outcomes will continue, for reasons of control and a dedicated campaign levied by anti-abortion policymakers to embed language that personifies an embryo in our culture.
“In a landscape where we are controlling people’s bodies and their reproductive choice, and where we think self-managing or making decisions about your own care is something you shouldn’t be allowed to do, we will continue to punish people for those decisions, because we don’t think they should have the space to make them,” said Rafa Kidvai, Legal Defense Fund director at If/When/How, which launched the Repro Legal Defense Fund in June. In other words, criminalization of pregnancy outcomes is directly connected to stigma around self-managed abortion and reproductive care. “It is probably terrifying to the patriarchy and capitalism and a culture of white supremacy if people are suddenly deciding that they get to do what they want to do with their bodies,” Kidvai said.
To be sure, the burgeoning legal trend of criminalization did not spike overnight. It is the result of policing that is rooted in white supremacy and in the subjugation of Black and brown bodies in the United States under white authority.
“This has been a long way coming,” said Michele Goodwin, the chancellor’s chair in law at the University of California, Irvine School of Law and the author of Policing the Womb: Invisible Women and the Criminalization of Motherhood. “This is not a sprint—it’s been a very purposeful marathon.”
She pointed out that the language of “personhood,” which policymakers who seek to bolster pregnancy outcome criminalization essentially feed on, is disturbingly present in abortion bans. Take Texas SB 8, for example, which bans abortion before six weeks on the basis that around that time, a “heartbeat” appears, despite the fact that there is no heart present at that point in pregnancy. Personhood language is ever-present in Mississippi’s 15-week abortion ban as well, which is set to be argued before the Supreme Court on December 1. The text repeatedly refers to “an unborn human being” in embryonic and fetal stages of development, and “heartbeat” language similar to that found in the Texas law is referenced near the top of the bill.
Goodwin said this also signals a shift in power toward what once was fringe orthodoxy that considered men to be the natural heads of household and that women are to be their subordinates, essentially stripping women of their personhood. And so, she said, it’s time to take the threat we once considered regressive and largely outside the mainstream more seriously.
“This really is about a war of the womb, a war of the uterus, a war of who gets to control the ideology of the household,” Goodwin said.
At If/When/How, a legal organization supporting reproductive justice, lawyers and organizers are preparing to meet a future in which the criminalization of pregnancy outcomes continues to increase.
“The political scope right now means that there’s gonna be a lot more people having to self-manage [abortions] because of a lack of access, and that’s going to lead to more criminalization of self-managed abortion,” If/When/How’s Kidvai said. “In terms of the general culture of surveillance and control that we have of pregnant people, I feel like that’s what shows up in all of these cases, right? We fundamentally believe that pregnant people are worthy of suspicion and therefore control, and obviously, that’s laden with all sorts of misogyny around people’s reproductive choices.”
The law, Kidvai said, too often reduces pregnant people to carriers of potential life, rather than human beings with their own sets of rights and needs. Kidvai and their colleagues seek to change that in their legal advocacy work. “I want people to know that we’re prepared, and that we have expertise and knowledge [to help],” they said.