Punishment of Pregnant Women
National Advocates for Pregnant Women plays a vital role in challenging so called "personhood" measures. Our commentaries How Personhood USA Will Hurt All Pregnant Women and PersonhoodUSA: Promoting a Radical, Fetal-Separatist Agendaexplains why it is that you can't add fertilized eggs, embryos, and fetuses to the constitution without subtracting pregnant women.
Our video explains How Personhood USA & The Bills They Support Will Hurt ALL Pregnant Women
The American Life League was apparently so freaked out by the video that they made a very posh video response to ours. Our answer provides documentation for all of the examples we give of the kinds of harm "personhood" measures would do: American Life League: Anti-Abortion "Personhood" Measures Really Will Hurt All Pregnant Women
Colorado activist Indra Lusero and NAPW talked about the harm the Colorado version of the Personhood measure would do in that state: Amendment 48: It's dangerous to women
Our law review article about Mississippi's version, Proposition 26: The Cost to All Women gives even more detail.
Below is a discussion of some ways in which "personhood" measures in disguise have been pushed around the country:
For the past 30 years, as concerted campaigns to restrict abortion rights has captured public attention, an insidious, but less widely recognized effort, has been underway to deny pregnant women their rights to bodily integrity and their humanity. By combining claims of fetal rights with the war on drugs, new laws that punish pregnant women and families are being enacted and enforced. There is consensus in the medical community that addiction is a public health issue and that treating drug use during pregnancy as a crime undermines the health of both women and children. Yet, fetal rights advocates in some states have convinced police, prosecutors, judges that addiction itself may be punished if the addict or drug user is a pregnant woman and that a pregnant woman’s addiction should be treated as a form of civil child abuse. These cases and statutes are having a devastating effect on women’s reproductive and human rights as well as public health, drug policy reform efforts, family life, and efforts for racial equality.
In the name of fetal rights and under the guise of the war on drugs, hundreds of women have been arrested for being pregnant and continuing to term in spite of a drug or alcohol problem. One state, South Carolina, by judicial fiat has declared that viable fetuses are legal persons and that pregnant women who use illegal drugs or engage in any other behavior that jeopardizes the fetus can be prosecuted as a child abusers or murders. Indeed, the arrest of pregnant women is not limited to those using illegal drugs. In Utah, a woman was charged with murder based on the claim that she caused a stillbirth by refusing to have a c-section earlier in her pregnancy. These arrests are taking place in spite of the lack of authorizing legislation and in spite of overwhelming opposition from medical, public health and child welfare organizations.
While hundreds of women have been arrested, thousands more have been subjected to punitive and counterproductive child welfare interventions that treat what women do or experience during pregnancy as evidence of civil child neglect or abuse. An increasing number of states are using a single, unconfirmed, positive drug test on a new mother or baby as a basis for involving child welfare authorities. In some cases resulting in the removal of the newborn from family custody. Women who have tested positive for drugs administered during labor, women in federally approved methadone treatment programs, and women whose drug use in no way compromises their parenting ability have had their children taken from them.
These punitive responses are taking place in a context in which women often have little or no access to appropriate family drug treatment. The National Association for Addiction Professionals begins one of its briefing papers by stating: “Women are second-class citizens when it come to treatment for drug addiction and alcoholism.” Not only are women denied access to this health care, they are then punished for having a disease for which they cannot get treatment.
This section contains articles, research and links on a number of areas adressing these and related forms of punishment and control of pregnant women. The section on Pregnancy and Drug Use: The Facts includes information from leading medical researchers debunking many of the destructive myths that help fuel and justify the punitive approaches. The subsection on Court-Ordered Interventions under Pregnancy, Childbirth and Parenting addresses other kinds of assaults on pregnant women and families that are closely related.
If what you want to do is judge pregnant, drug-using women, then you probably should not keep reading. But, if you actually care about pregnant women and babies you might want to continue reading and find out what the experts have to say.
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.
Emma Ketteringham, NAPW's Director of Legal Advocacy, discusses how laws in the state of Alabama are being unlawfully applied to jail and prosecute pregnant women.
Locking up Alabama Mothers is Bad for Babies
Leading Medical, Public Health and Child Welfare Organizations Ask Alabama Supreme Court to Stop Prosecuting and Punishing Pregnant Women
NAPW has, for some time, been encouraging attorneys who represent mothers in civil child neglect proceedings ("family defense lawyers") to challenge neglect and abuse charges based on positive drug tests.
On February 7, 2012, National Advocates for Pregnant Women, Legal Voice and the Center for Reproductive Rights filed an amicus (friend of the court) brief in the case of Jennie McCormack v. Hiedeman. We are very grateful to Legal Voice for finding counsel, Kathleen M. O’Sullivan, Breena M. Roos, and Ashley A. Locke, of Perkins Coie LLP to work with NAPW and to file this amicus brief on behalf of our organizations. The McCormick case is discussed in this Daily Beast article.
50 Leading Medical, Public Health and Child Welfare Organizations and Experts File Brief Insisting on Science not Stigma in Child Welfare Decisions Involving Pregnant Women and Allegations of Drug Use
21-year-old was arrested and sent to forced treatment. Jan Egeland, the Human Rights Watch calls on three cabinet ministers to ensure that she regains freedom.
Lynn M. Paltrow
NOVA Law Review
Vol 13. No. 2, Spring 1989
Lynn M. Paltrow
New York University Review of Law & Social Change
Vol.35, No. 1, 2011
This article uses the McCorvey v. Hill case to illustrate how the pro-choice movement and traditional lawyering approaches have missed critical opportunities to use attacks on Roe and other anti-abortion cases as a way to build alliances across the range of issues and movements necessary to protect the right to choose abortion, and more fundamentally the personhood of pregnant women. It not only describes the history of the McCorvey case but also outlines what can be done to more effectively counter abortion recriminalization efforts and to truly advance Reproductive Justice.
Praise for the article: here
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
The Ohio Middletown Journal
By Lynn T. Singer and Tiloma Jayasinghe
Sunday, November 26, 2006
Three-year-old Marcus Fiesel's life was cut tragically short when he was murdered, allegedly, by his foster parents. He was placed in foster care by Butler County. Now some Ohio officials are seeking to distract attention from how the foster care system failed by focusing attention instead on drug- and alcohol-using pregnant women. These officials want to make it a felony offense for a woman to continue her pregnancy to term in spite of a drug or alcohol problem. It would be criminal for a woman to give birth to a child who tests positive for drugs or who evidences developmental delays as a result of alcohol use.
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.
Recent Arrests and Convictions
• July 2006, Gaffney: Hannah Lauren Jolly, 20 was charged with “unlawful child neglect” based on the claim that her newborn baby tested positive for marijuana and cocaine. Jolly relinquished her newborn to nurses at a hospital and was therefore protected from prosecution for abandonment by Daniel’s Law, also known as the Abandoned Babies Act. Nevertheless, after the child tested positive for drugs, police tracked Ms. Jolly down and arrested her.
• March 2006, Clearwater: Betty L. Staley, 28, was charged with “unlawful neglect” after her daughter allegedly tested positive for cocaine at birth.
• February 2006, Aiken: Carolyn Michelle Wright, 27, was charged with “unlawful neglect” based on the claim that she tested positive for cocaine use when she went to a hospital.
• January 2006, Easley: Jennifer Lee Arrowood, 38, was arrested for “homicide by child abuse” after suffering a placental abruption and giving birth to a stillborn son. The state claimed that Ms. Arrowood’s drug use was the cause of this pregnancy loss. Charges were reduced to unlawful neglect of a child. Ms. Arrowood was convicted January 23, 2006, and received a 10-year prison sentence.
Wyndi Anderson of National Advocates for Pregnant Women told me via email that this kind of law isn't exactly a new idea: "[Similar bills have] been shot down in other states because in the end it is bad for the very infants they say they want to help. If we really want to provide an opportunity for women to have healthy pregnancies then we need to think about ways we can support women and their families. These type of measures are almost always someone trying to further their career because no one who understands addiction and cares about children and women would dare to pass such a law."
By: Sheigla Murphy and Paloma Sales
In this paper we present analyses of two National Institute on Drug Abuse-funded studies entitled, "An Ethnographic Study of Pregnancy and Drug Use" (Rosenbaum and Murphy 1991-94) and "An Ethnography of Victimization, Pregnancy and Drug Use," (Murphy 1995-98). Our goal is to explicate the ways in which pregnant drug users in the San Francisco Bay Area experienced, coped with and protected themselves from increasing stigmatization, abuse and punishment while enduring a period of fiscal retrenchment of government assistance programs.
Throughout the late 1980's and still today, "crack moms" and "crack babies" are the subject of vigorous public debate. Much of this public discussion has been governed by speculation and medical misinformation reported as fact in both medical journals and in the popular press and has been extremely judgmental and punitive in many instances.