Criminal Cases and Issues
The first effort to document the arrests of women based on their pregnancy, drug use, conditions and behaviors was published in 1992. This report documented over 160 incidents of arrest of women based on their status as pregnant people. The report also documented a significant disproportionality in the race of those women targeted for arrest and criminal prosecution finding that approximately 70% of the cases were brought against women of color. A majority of these cases involve allegations that the woman was using an illegal drug while pregnant. Although drug use crosses all race and class lines, African American women, were particularly targeted for harsh and punitive responses. Scores, if not hundreds of new arrests have occurred since 1992. This section provides information about select cases as well as articles and reports concerning an increasing trend toward viewing pregnancy as a proper subject of the criminal law.
State v. Greywind, No. CR-92-447 (N.D. Cass County Ct. Apr. 10, 1992).
On February 7, 1992, Martina Greywind, a twenty-eight-year-old homeless Native American woman from Fargo who was approximately twelve weeks pregnant, was arrested. She was charged with reckless endangerment based on the claim that by inhaling the vapors of paint fumes, she was creating a substantial risk of serious bodily injury or death to her unborn child. The complaint alleged:
[The] defendant willfully created a substantial risk of serious bodily injury or death to another, to-wit: . . . MARTINA GREYWIND, while pregnant intentionally inhaled the vapors of a volatile chemical in violation of North Dakota Century Code 12.1-31-06 and thereby willfully created a substantial risk of serious bodily injury or death to her unborn child.
On February 10, 1992, Ms. Greywind, without a lawyer, initially pleaded guilty. She was sentenced to nine months at a state prison farm and ordered to participate in a chemical dependency program. After an attorney took her case, however, Ms. Greywind was allowed to withdraw her plea on February 12, 1992.
During this time, members of the Lambs of Christ were active in Fargo attempting to disrupt the Fargo Women's Health Clinic, the only abortion clinic in North Dakota. The Lambs of Christ is a loosely organized group of Roman Catholics who "focus on the rescue of unborn children." They had been in North Dakota since March and members of their group had been repeatedly jailed. News stories about the case reported that members of the group who had been arrested attempted to befriend Ms. Greywind while they were in jail together.
According to court records and the press, Lambs of Christ spokesperson Ronald Maxson posted $100 for a $1000 personal recognizance bond for Ms. Greywind. Nine hours after her release on bail, Ms. Greywind was re-arrested because police allegedly caught her sniffing paint again. She pleaded guilty to illegal inhalation of chemical vapors and was transferred to the state mental hospital. The State's Attorney said Ms. Greywind was to spend thirty days in the hospital or jail as her sentence. On February 20, 1992, a lawyer for the Lambs of Christ filed a petition seeking to have the woman's brother, Ken Greywind, appointed her legal guardian, apparently in an effort to prevent Ms. Greywind from having an abortion. According to an affidavit filed by Mr. Greywind, "I believe she is contemplating an abortion in order to have the charge of reckless endangerment dismissed and get out of jail so she can continue to abuse her body." The court denied Mr. Greywind’s petition.
On February 21, 1992 the State and Ms. Greywind entered a stipulation -- an agreement between the parties -- that Ms. Greywind “be released from the Cass County Jail for the following medical and/or psychological appointment: February 22, 1992, at 11:00 A.M.” According to press reports, this release enabled Ms. Greywind to obtain an abortion at the Fargo Women’s Health Clinic. Ms. Greywind obtained the abortion, despite widely-publicized efforts by abortion opponents to persuade her to carry the pregnancy to term including a financial offer conveyed by the Lambs of Christ of at least $10,000. Ms. Greywind expressed a desire to have the abortion, but also her inability to pay the cost of the procedure. North Dakota law prohibited state funding of abortion. According to the press, anonymous donors offered to pay for the $300-400 cost of her abortion. On February 24, 1992, Mr. Maxson of the Lambs of Christ requested that the $100 bail be returned to him. The request was granted.
On March 30, 1992, Ms. Greywind filed a motion to dismiss the charges arguing that “the State in this case [was] seeking to criminalize the pregnancy of a drug-addicted woman by applying a strained and unforeseen construction of the North Dakota reckless endangerment statute," as well as other grounds including the fact that the abortion rendered the case moot. Assistant Cass County Prosecutor Steve Dawson then filed a motion to dismiss with prejudice stating:
On February 10, 1992 [Martina Greywind] was charged with the offense of Reckless Endangerment, a class A misdemeanor. The defendant has recently undergone treatment at the North Dakota State Hospital and is presently in custody at the Cass County Jail on a subsequent and pending charge of Inhalation of Volatile Chemicals in violation of N.D.C.C. Section 12.1-31-06. Defendant has made it known to the State that she has terminated her pregnancy. Consequently, the controversial legal issues presented are no longer ripe for litigation. Further, the likelihood of this extreme factual situation recurring is limited. In the interest of preserving limited prosecutorial and judicial resources, Plaintiff hereby moves to dismiss the Complaint in this action with prejudice.
According to news reports, the prosecutor in the case stated that since Ms. Greywind had the abortion, it was “no longer worth the time or expense to prosecute her.” On April 10, 1992, the child endangerment charge was dismissed.
Supreme Court of New Mexico Strikes Down State’s Attempt to Convict Woman Struggling with Addiction During Pregnancy.
Leading Physicians, Scientific Researchers, and Medical, Public Health, and Child Welfare Organizations Applaud Court’s Order
New Mexico Supreme Court to Hear Oral Arguments in Case Involving Prosecution of Woman Struggling with Addiction During Pregnancy
Leading Physicians, Scientific Researchers, and Medical, Public Health, and Child Welfare Organizations Oppose Treating Pregnant Women Who Give Birth in Spite of a Drug Problem as Felony Child Abusers
Women's eNews features a commentary, Jailing Pregnant Women Raises Health Risks by former NAPW legal intern/NYU law student Julie Ehrlich and Lynn Paltrow.
Charges Rejected for Moms Who Bear Babies Exposed to Illegal Drugs
By Susan Kinzie
Washington Post Staff Writer
Friday, August 4, 2006; B06
Maryland's reckless endangerment law cannot be used to prosecute women who give birth to babies exposed to illegal drugs, the state's high court ruled yesterday, overturning the convictions of two Eastern Shore mothers.
Prosecutors said such charges were needed to protect children, but some advocates for pregnant women welcomed the decision by the Maryland Court of Appeals as an affirmation that such cases could make pregnant women vulnerable to prosecution for an array of potentially dangerous behaviors -- such as smoking cigarettes and driving without a seatbelt -- and that drug-using mothers need treatment, not punishment.
"Imprisonment is not only the most costly thing the state could do," said Lynn Paltrow of the New York-based National Advocates for Pregnant Women. "It's the most family-destructive thing the state could do."
Kelly Lynn Cruz, seven months pregnant and belligerent, arrived at an Eastern Shore hospital in the middle of the night in January 2005. The three-pound boy she gave birth to tested positive for cocaine. Last August, she was convicted of reckless endangerment.
Regina Kilmon, whose case was similar, was also convicted in 2005 of reckless endangerment. She was sentenced to four years in prison.
The cases were clear-cut for prosecutors. "We're talking about unlawful activity, use of a narcotic substance," Scott Patterson, the longtime state's attorney in Talbot County, said last summer.
But Talbot was the only jurisdiction in Maryland to bring such charges against women for using illegal drugs while pregnant. Elsewhere in the country, such cases have often turned into emotional debates over the rights of the unborn.
The American Civil Liberties Union of Maryland stepped in to defend Cruz, who was the fifth woman to face similar charges in Talbot.
In the 1980s and early '90s, public horror over crack use coincided with early reports of babies damaged by drugs. Arrests followed, and legislators debated how to control the problem. But most cases were struck down, and medical research tempered the earlier fears.
A National Institutes of Health study has found that maternal cocaine use can cause slightly lower birth weights and intellectual and behavior problems later in childhood. Alcohol and tobacco can be just as damaging. An array of public health, drug treatment and medical organizations filed briefs supporting the women, arguing that such prosecutions are more likely to harm than to help mothers and babies.
The court ruled that allowing such prosecutions could open the door to so many potentially dangerous behaviors that "criminal liability would depend almost entirely on how aggressive, inventive, and persuasive any particular prosecutor might be."
Some experts say they believe there have been more such cases in recent years, driven perhaps by the increase in methamphetamine use in some parts of the country and by recent laws that allow prosecutors to treat some crimes against pregnant women as cases with two victims.
This year, a similar case was dismissed in Virginia, and in Hawaii, the state Supreme Court overturned a manslaughter conviction of a woman who smoked methamphetamine while pregnant.
Of the Maryland Court of Appeals ruling, Patterson issued a statement saying his office "fully accepts its decision as a definitive statement of the law of Maryland" and would continue to work with public health and social services employees "toward the common goal of assisting women in their fight to defeat drug addiction and in their efforts to deliver children who will be born without illicit drugs in their systems."
© 2006 The Washington Post Company
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In a society that values children, it's striking how frequently our public policy falls short of our rhetoric. Too often, the notion of collective responsibility for the nation's children translates into collective demonization of pregnant women. Collective responsibility for our children should mean support for policies that help pregnant women get the care they need to have healthy babies. Instead, states and localities are increasingly blaming individual women, exaggerating the harms from individual behaviors.
In Arkansas' recent special spring session, Hot Springs Rep. Bob Mathis followed up his successful proposal to make it illegal for someone to smoke in a car with children with a proposal to ban pregnant women from smoking.
For those who subscribe to the view that pregnant women are vessels, treating them like cars makes perfect sense.
The Court of Appeals will consider tomorrow the opinion of more than 50 national medical, public health, child welfare, and drug treatment experts that prosecution of addicted mothers is counterproductive to the mother, the welfare of the child, and the interests of society.
Tex. Court Overturns Convictions Under 'Fetal Rights' Law
by Michelle Chen . . .
Pointing to a stark imbalance between punitive measures and health
resources, Paltrow of National Advocates for Pregnant Women said that
pregnant women with substance-abuse problems too often lack access to
appropriate treatment facilities in their communities. Prosecutions
based on fetal-rights laws, she said, "create the illusion that there is
treatment... when in all sorts of healthcare areas, patients of all
kinds, and particularly ones... who have drug problems, are completely
MEDIA ADVISORY Contact: 917-921-7421
FOR TUESDAY, May 27th
Petition filed Today Seeking U.S. Supreme Court Review of Unprecedented South Carolina Decision Treating a Woman Who Suffered A Stillbirth as a Murderer
On May 27, 2003 counsel for Regina McKnight filed a petition with U.S. Court Supreme Court requesting review of a South Carolina Supreme Court decision that effectively rewrote the state's homicide by child abuse law to permit prosecution and conviction of pregnant women who experience stillbirths.
For Immediate Release
Contact: Wyndi Anderson
November 6, 2002
SC Supreme Court Hears Appeal:
Don't Punish Women for Stillbirth
Medical Groups Challenge Evidence, Express Fears About Consequences of Policy
COLUMBIA, SC – Today, the South Carolina Supreme Court heard oral arguments in a case that will help determine how stillbirths are handled in the state. McKnight v. State challenges the May 2001 conviction of Regina McKnight on charges of homicide by child abuse for suffering a stillbirth. In convicting McKnight, the Horry County Court extended the application of South Carolina’s 1997 Whitner ruling, which allows for the prosecution of pregnant women, under the state’s child endangerment statute, for conditions or actions that risk harm to a viable fetus.
COURT TACKLES ISSUE OF FETAL DRUG DEATHS
Thursday, November 7, 2002 Associated Press
COLUMBIA-South Carolina's Supreme Court heard arguments Wednesday in a case aimed at overturning the state's unique law that prosecutes women for homicide if they kill their fetus by taking drugs. Defense lawyers are trying to throw out the conviction of Regina McKnight of Conway, who's serving 12 years in prison after a jury took 10 minutes to convict her last year in the death of her stillborn daughter.
DPA PR: 26 Public Health and Medical Groups to U.S. Supreme Court: Women Who Suffer Stillbirths Are Not Murderers
26 Public Health and Medical Groups to U.S. Supreme Court: Women Who Suffer Stillbirths Are Not Murderers
South Carolina Prosecutors Want Homicide Trials for Stillbirths That Follow Any Conduct "Publicly Known" to be Harmful to Fetus
To the Editor:
Re "Woman Is Convicted of Killing Her Fetus by Smoking Cocaine" (news article, May 18):
There are numerous causes of fetal demise. Many are related to what pregnant prosecution of Regina McKnight was an outrage, and her conviction (after 15 minutes of deliberation) a travesty. Beyond having a devastating impact on her and her children (one as yet unborn), this case seriously undermines the legitimate societal goal of insuring the best maternal and child health. The threat of prosecution for murder based on medical or behavioral factors of pregnant women will cause those who need prenatal care the most to avoid it.
ROBERT G. NEWMAN, M.D.
New York, May 18, 2001
The writer is director, Edmond de Rothschild Foundation Chemical Dependency Institute, Beth Israel Medical Center.
Advocates Will Continue To Fight For Regina McKnight's Release And Against Criminalizing The Behavior of Pregnant Women
Source: The Augusta Chronicle (Georgia)
Pubdate: June 2, 2003
S.C. Law To High Court
The U.S. Supreme Court is being asked to review an extremely controversial South Carolina legal issue involving women who destroy their advanced pregnancy by taking addictive substances.
As is often the situation in precedent setting new cases, prosecutors chose as their test case one in which there would be little sympathy or support for the woman they targeted. In this case they picked Regina McKnight, an indigent African-American woman with numerous health problems, a limited education, and a drug problem that began after her mother was killed in a hit and run accident.
** BREAKING NEWS **
Wed. March 21, 2001
Statement of Lynn Paltrow, Esq., on Ferguson v. City of Charleston, 99-936
It is safe to say that South Carolina has imposed the most punitive policies toward pregnant drug using women of any state. On October 27, 1997, in a case called Whitner v. State, the South Carolina Supreme Court declared that viable fetuses are "children."
South Carolina leads the nation in the punishment of pregnant women. A chief advocate and architect of the policy is former South Carolina Solicitor and Attorney General Charels Condon. Mr. Condon has repeatedly claimed that the State's policy of arresting pregnant women who endanger the health of their fetuses is a “last resort” that “was not punitive…not designed to put people in jail,” but designed to promote treatment of pregnant women with drug problem. The record, however, makes clear that punishment was and continues to be the first and only response for many South Carolina women seeking medical help for themselves and their children.
"If you want to hurt babies, you pass this law," said Lynn Paltrow, the executive director of National Advocates for Pregnant Women. "Drug abuse is a health problem. Health care in prisons is hideous."
This documents the cases of an estimated 167 women who have been arrested on criminal charges because of their behavior during pregnancy or because they became pregnant while addicted to drugs. The cases are from twenty-four states. A disproportionate number of these cases come from just two states, Florida and South Carolina, and are concentrated in two counties in each of those states. This article is posted here with the permission of the American Civil Liberties Union.