Liberty for Pregnant Women in the “Land of the Free”
Originally posted, in excerpt, on the White Ribbon Alliance for Safe Motherhood's Respectful Maternity Care Blog.
NAPW was recently asked by the White Ribbon Alliance, a global movement to improve maternal and infant health outcomes through policy change and research, to serve on a multi-stakeholder working group and provide a legal analysis of a groundbreaking document they were drafting, the Respectful Maternity Care Charter. This document brings to light the many human rights treaties protecting the right of pregnant women to respectful maternity care. In November, after several months of work, the Charter was first unveiled to the group tasked with bringing its message to communities worldwide. At that meeting, I noticed more than one person puzzling over Article 7: Every woman has the right to liberty, autonomy, self-determination, and freedom from coercion.
“Liberty -- what a peculiarly American word,” noted one person. Another nodded in agreement. Is it? I wondered, searching my memory banks, Would the concept of liberty lack resonance in other countries and cultures? As a civil and human rights attorney in the United States, I may be precisely the wrong person to make that determination. Liberty, along with equality and due process of law, is one of the few tools I am given to defend the health, rights, and dignity of pregnant and parenting women.
From a historical perspective, the U.S. is a relative newcomer to the idea of liberty. Even the iconic statue that the United States so proudly displays as a tribute to liberty is a gift from the French, a depiction of Libertas, a Roman goddess of freedom. The history of liberty traces even further than that, appearing in ancient texts from Persian, Chinese, and Indian cultures. But what about the present day? The term “liberty” appears in international human rights documents, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, but does the United States have the market cornered on liberty? What does liberty look like for childbearing women in the Land of the Free?
In its most literal meaning, liberty is a freedom from bondage and restraint. Even on this most fundamental level, incarcerated women in many U.S. states are denied this right and are forced to give birth in chains and shackles. Despite a widespread recognition that a woman’s ability to move freely is important not only to her ability to cope with labor but to her health and that of her baby, only a handful of U.S. states have passed laws that ban or limit the practice. The Anti-Shackling Coalition, a group of state-based human rights activists coordinated by the Rebecca Project for Human Rights, works to challenge policies that allow such deprivation of women’s liberty and dignity with the idea that all people—regardless of whether or not they are incarcerated—are entitled to human rights.
But liberty runs much deeper. Decisions by the Supreme Court of the United States tell us that the concept means more than mere freedom from restraint. Certain rights, including the right to make decisions about one’s body and the right to start and maintain a family, are considered so “implicit in the concept of ordered liberty” that “neither liberty nor justice would exist if they were sacrificed.” For most Americans, it is unfathomable that women could be forced to undergo surgery or held against their will in a hospital for court-ordered bed rest, or that giving birth or suffering a poor birth outcome could lead to imprisonment or the destruction of a family. For others, it is an unfortunate reality.
As of this writing, Bei Bei Shuai, an immigrant from China, has been sitting in an Indiana jail for over 300 days. Her crime? She survived a suicide attempt but lost the baby she was expecting. She was fortunate that a friend rushed her to the hospital when she revealed that she had taken rat poison in a bout of intense depression to end her shame after being abandoned by the father of her child. Hospital staff saved her life, and even managed to stabilize her baby. But after fetal monitors showed that the baby was in distress, an emergency cesarean was performed, and it was discovered that the baby was suffering from brain hemorrhage that would certainly be fatal. Despite pain from the cesarean surgery, Ms. Shuai held her baby, whom she named Angel, for hours on end. The hospital staff, outwardly kind to Ms. Shuai as they advised her to remove life support, called the coroner’s office to report a homicide before Angel had even passed away. When Angel finally died in her mother’s arms, it was only a matter of minutes before the hospital turned Ms. Shuai’s personal and privileged medical records over to police without a warrant, subpoena, or Ms. Shuai’s consent. Even though neither suicide attempts nor pregnancy loss are crimes, and even though suicide has been recognized as the second leading cause of maternal mortality in the U.S., Bei Bei Shuai now awaits her trial for murder.
Over fifty new mothers in Alabama have been arrested and charged with the crime of “chemical endangerment” (a crime intended to punish people responsible for children for bringing them into environments contaminated with the toxic chemical byproducts of methamphetamine production) for giving birth to babies who tested positive for an illegal substance. Most of these women were reported to authorities by their maternity care providers, some of whom actually told their patients that the urine samples they had collected under the guise of prenatal care would be saved and used for the purposes of criminal reporting, contrary to the legal and ethical requirements for health care providers. There is a very important reason for the separation between provision of health care and criminal investigation and prosecution. Medical and public health experts agree: as surely as slaps and verbal abuse, the threat of criminal prosecution or loss of child custody drives women away from prenatal care and drug treatment, both of which are crucial to maternal and infant outcomes.
The right to freedom from coercion bears directly on the enjoyment of other rights highlighted by the Charter. In 2007, a New Jersey woman declined to pre-authorize a cesarean section before it became medically necessary. Unhappy with her exercise of informed refusal (Article 2 of the Charter), the hospital reported her to child protective services, tipping off proceedings which led to a termination of her parental rights. The termination was overturned by a state appellate court, but the case is still being litigated, and the family has yet to be reunited. Many people are shocked and literally disbelieving that the child welfare system has been used against women in this way, but this is merely a more overt and widely publicized example of a form of coercion many women report experiencing. While no state grants child protective authorities jurisdiction over children prior to birth, most women don’t have access to legal counsel when they are in active labor.
In spite of the deprivations of liberty that we see across the United States, the landscape is not necessarily bleak. We honor the maternity care providers and organizations who speak out on behalf of the women who give birth under less-than-ideal circumstances. Respectful maternity care is about more than surviving childbirth. It is also about more than being treated with kindness and dignity. It is about ensuring that no woman loses her liberty at any point during her pregnancy, not even during birthing. It is an idea that transcends borders.