The population of incarcerated women has exploded in recent decades at nearly double the rate of men. More women and mothers are in prison today than at any point in U.S. history, and a nexus of unjust laws and ideologies targeting women, people of color, and the economically disenfranchised have disproportionately criminalized a specific demographic: pregnant women.
Lynn Paltrow, a lawyer and founder of National Advocates for Pregnant Women (NAPW), works to uphold the personhood of pregnant women—their civil and human rights—in the face of longstanding efforts to establish fetal personhood legislation, a product of the anti-abortion movement. This January, Paltrow and NAPW’s Dr. Jeanne Flavin released a new study, the first of its kind to show the broad legal consequences this legislation has had for pregnant women. Their team identified 413 criminal and civil cases that occurred between the passing of Roe v. Wade in 1973 and the year 2005, in which a woman’s pregnant status was a pivotal factor leading to attempted or actual deprivations of physical liberty: women forced to undergo Cesarean sections, women handcuffed and strapped into ambulances—legs shut—while in labor, women serving years-long prison sentences after a miscarriage because the embryo inside them was appointed a better lawyer than they were.
Paltrow calls this a “New Jane Crow” system that creates a second-class status for pregnant women, particularly pregnant women of color; over half of the cases documented in the study targeted African-American women. She says that these violations are rooted in both the anti-abortion movement and the War on Drugs, which function together by playing into unscientific “crack baby” fears in order to police women’s behavior. According to NAPW, the 413 documented cases are a “substantial undercount” of the total; the organization has documented 250 additional instances of criminalizing pregnancy since 2005 alone.
Paltrow’s work requires a wide-angle perspective on the intersection of systems and prejudices that serve to oppress certain groups. We first met by chance on a float in New York City’s Pride Parade last summer, where she held aloft a sign protesting the NYPD’s “Stop and Frisk” policy. At the beginning of our interview, she recalled an event where she was given a nametag that read: “Lynn Paltrow: Reproductive Justice.” Pulling out a sharpie, she added, “And Drugs.”
I spoke to Paltrow over the phone on the fortieth anniversary of Roe v. Wade.
—Marisa Carroll for Guernica
Guernica: When most people think about reproductive rights, they envision women seeking abortions—not those who wish to carry their pregnancies to term. What first drew you to pregnant women’s civil rights?
Lynn Paltrow: I started out my legal career defending the right to choose abortion. Fairly early on, I began to get cases where anti-abortion arguments were being used to hurt women who weren’t trying to end their pregnancies, who weren’t trying to have abortions.
One case was that of Angela Carder. She had been diagnosed with a terminal form of cancer as a young woman in her teens. She survived, but eventually had her entire leg and half her pelvis removed. As an adult she got married and got pregnant. She didn’t want to end her pregnancy, but at twenty-five weeks had a recurrence of the cancer. Her doctors discovered a tumor the size of a football in her lungs. Rather than respecting the decision-making of Carder, her own physicians, and her family to do whatever was necessary to keep her alive for as long as possible, a hospital attorney called an emergency court hearing to decide the rights of the fetus. And even though it was clear that requiring Angela to undergo Cesarean surgery would kill her, the judge decided that he had an obligation to advance the separate interests of the fetus inside of her and ordered the surgery. Ms. Carder had the surgery and the baby was born alive but soon died, and Angela died two days later. The Cesarean surgery was listed as a contributing factor to her death. I eventually got the courts to say that was wrong, but I learned some important lessons.
What we’ve found is that the arguments used to support anti-abortion measures and so-called pro-life measures—particularly those that try to define eggs, embryos, and fetuses as completely separate from pregnant women—are being used in ways that not only violate women’s reproductive rights, but create the basis for depriving them of their constitutional personhood and human rights.
What I finally came to understand—and this is something that every Planned Parenthood or independent abortion clinic can tell you—is that the women who have abortions are pregnant women. Around 60 percent of them are already mothers, and 84 percent of all women at some point in their lives will get pregnant and go to term. So there’s something almost irrational in thinking about abortion as if it’s separate from issues of pregnancy, including going to term and the very common experience of miscarriages and stillbirths.
Guernica: In your new study with sociologist Dr. Jeanne Flavin, you found 413 cases in which women’s pregnancies directly led to their personhood being violated through detention, arrest, and institutionalization.
Lynn Paltrow: In our study, we looked at every case between 1973 and 2005 in which pregnancy was a necessary element leading to the deprivation of a pregnant woman’s physical liberty, either through arrest or through an equivalent massive deprivation. That inquiry partly came from the tendency to see a case like Angela Carder’s—where, to carry out Cesarean surgery you have to tie her down and physically move her from one place to another, subject her to major surgical intervention, cut through her flesh, and take her life—as a case where just her “reproductive rights” were violated. In fact, her right to life, her right to physical liberty, and her right to due process were all violated.
After years of doing this work, we’ve found that the arguments used to support anti-abortion measures and so-called pro-life measures—particularly those that try to define eggs, embryos, and fetuses as completely separate from pregnant women—are being used in ways that not only violate women’s reproductive rights, but create the basis for depriving them of their constitutional personhood and human rights.
I think that when people see a pregnant woman, it’s very hard for them to see beyond reproductive rights. What our study helps us understand is that her whole personhood is at stake. Every right associated with personhood is at stake.
Guernica: One troubling case that speaks to this violation of personhood is Laura Pemberton—who shakes up the traditional “pro-choice” perspective on how the personhood movement affects women’s autonomy. Who is Laura Pemberton and how does her case fit into your work?
Lynn Paltrow: Ms. Pemberton is a woman who personally describes herself as pro-life. She was pregnant with her fourth child and had one previous Cesarean surgery. She wasn’t opposed to surgery for religious reasons, but preferred not to have one if she didn’t need it because of the strenuous recovery time. She had children at home to take care of. Nevertheless, every hospital in her area of Florida said, “You as a pregnant woman are not welcome in our hospital for our services unless you agree to schedule Cesarean surgery, whether or not you need it.”
Rather than subject herself to a major surgical intervention, Ms. Pemberton began her labor at home hoping to have a successful vaginal delivery. The hospital found out and sent the sheriff to her house, who then took her into custody while she was in active labor. They strapped her legs together in the back of an ambulance and took her to the hospital. As she was being prepped for surgery, she and her husband were given the chance to speak for themselves against the decision—they were given no access to legal counsel, no opportunity to call their own witnesses—and she was forced to have the surgery.
The legal rationale for these decisions, interestingly enough, is the same rationale that is being used to argue that Roe v. Wade should be overturned. It misconstrues Roe to say that after viability the fetus is essentially a person and the state has interest in its life, so much so that it could deprive Laura Pemberton of her right to bodily integrity. Her right to physical liberty, her right to basic due process of law—to the extent that her religious views were framed as right to medical consent and decision-making—all of those were wiped out.
We see it in many cases—cases where women have refused blood transfusions because of their religious beliefs in areas where courts have said pregnant women have a right to free exercise of religious beliefs, just so long as somebody on the outside doesn’t think it conflicts with our judgment about what we think is best for the embryo or fetus.
The use of illegal drugs is not healthy for a pregnancy, but the research does not find that these substances are uniquely harmful…These fears, however, provided an excuse for local prosecutors to take child abuse laws and laws about delivering drugs to minors and apply them to low-income women, disproportionately African-American women.
We’ve seen it in terms of violation of pregnant women’s Fourth Amendment rights. A hospital was secretly searching almost exclusively African-American women for evidence of drug use and then doctors and nurses were turning that information over to the police—claiming it was furthering the state interest in separate rights for embryos and fetuses—and coordinating the women’s arrests out of their hospital beds, taking them away in chains and shackles while they were still pregnant. Or, almost immediately after giving birth, they were put into jails that had no healthcare.
Eventually, the United States Supreme Court ruled that pregnant women don’t lose their right to Fourth Amendment protections because they’re pregnant, but we still see these cases happening.
Guernica: You were recently featured on WNYC’s Radiolab program in a segment about Project Prevention, the nonprofit that seeks to “stop a problem before it happens” by paying drug-using women to get sterilized. Your study deals largely with laws that, like Project Prevention, rely on the “crack babies” trope, or the fear that pregnant women’s drug use causes disease, disability, and death for the fetus. How much weight do these fears hold scientifically?
Lynn Paltrow: I always encourage people to call scientists about this. We work very, very closely with leading researchers in the field. While it’s not good to use any illegal drugs during pregnancy, using them is bad in the same way that it’s bad to use cigarettes, and slightly less bad than it is to use alcohol during pregnancy. In other words, the use of illegal drugs is not healthy for a pregnancy, but the research does not find that these substances are uniquely harmful. The fear that all of these children will somehow be significantly affected is just not supported by the research.
These fears, however, provided an excuse for local prosecutors to take child abuse laws and laws about delivering drugs to minors and apply them to low-income women, disproportionately African-American women, to see if they could use these laws to punish women.
The only state that has upheld such prosecution is South Carolina, in a case involving Cornelia Whitner. Ms. Whitner delivered a baby who tested positive for cocaine. Although the baby was perfectly healthy, Ms. Whitner was charged under the state’s child endangerment law—not under a drug law—that makes it a crime to risk harm to a child. The court redefined the word “child” to include viable fetuses and sentenced this woman to eight years in jail for going through pregnancy, giving birth, and having a healthy baby, because they say she “risked harm” to her child. The only equivalent we found to this—where you may be charged for “risk of harm” when you haven’t caused any harm—is drunk driving. The penalty for that? A few days in jail. Cornelia Whitner was sentenced to eight years.
Guernica: A similar case may be that of Regina McKnight, also of South Carolina, who served almost a decade in prison for “homicide by child abuse” after she had a stillbirth and tested positive for cocaine.
Lynn Paltrow: One thing that’s very clear is the effort to expand state control over women, to use the intersection of the War on Drugs and the war on abortion to create laws that actually provide state authority for creating a second-class status for pregnant women. These types of measures are often first tried out on low-income, African-American women. Because of the enormous mythology and stigma created by the War on Drugs, many people were inclined to think that those women—African-American mothers whose motherhood has been degraded since slavery, and where there is drug use involved—are terrible women who deserve to be punished. Not only are these women who love their children, but most of them identify as pro-life, and chose not to have abortions. They would have been much happier not having a drug problem, or getting help for a problem they might have had. They love their babies and they thought they had a good chance of having a healthy baby because, really, they have about the same chance as anybody.
Prosecutors will charge low-income, often African-American women who often test positive for illegal drugs to establish a precedent, like they did in Whitner. And the public thinks that’s good: we created this little law that will punish women who go to term in spite of a drug problem. But really, the precedent that was set was that the state may punish all women who create risk for harm to their eggs, embryos, or fetuses.
Very shortly after Cornelia Whitner was arrested, a woman who smoked marijuana was subject to prosecution for child abuse and endangerment in South Carolina. After that, a woman who drank alcohol. And after that, a young woman who was eighteen, seven or eight months pregnant, very depressed, and jumped out a window. She survived, but lost the pregnancy and was left with a broken pelvis and numerous broken bones. She was charged with homicide by child abuse and put in jail following her suicide attempt, for the murder of what they would call an “unborn child.”
This was again used in the Regina McKnight case. She suffered a stillbirth, which the state claimed was caused by using cocaine. In fact, the stillbirth was caused by an infection that had nothing to do with illegal drugs. Her lawyer called no experts to her defense and a white jury convicted her in less than fifteen minutes. She was found guilty of homicide by child abuse, sentenced to twelve years in jail, and served eight of those twelve years.
NAPW has received calls from birthing rights activists in South Carolina, who report that women are subtly and not so subtly told that if they do not adhere to a doctor’s advice about how they deliver they could face criminal charges.
Guernica: How does law enforcement get brought into these cases—who reports women and to whom?
Lynn Paltrow: We tried to find that out in our study and were surprised to discover that in approximately two-thirds of cases, it was a doctor, healthcare provider, or hospital-based social worker that was calling in the outsiders. Sometimes the doctors wanted to have their point of view about what was best for the pregnant woman enforced. Many times, doctors engaged in a very disturbing partnership with the police to coordinate arrests of pregnant women literally out of their hospital beds. So the expectation that most people have, that you have protections of confidentiality and privacy in your healthcare, are often not true in general and particularly if you are a pregnant woman.
Among our recommendations is that healthcare providers have to step back and ensure that patients who are pregnant have the same degree of confidentiality, dignity, and respect that other patients do.
At the same time, we know that medical organizations and leading experts have played a very important role in challenging arrests, prosecutions, detentions, and forced medical interventions on pregnant women and have helped play a major role in keeping states from passing laws that would make it a crime to give birth in spite of a drug problem. They have testified against using child abuse laws to punish a woman who smoked marijuana once during pregnancy, as was so in one of the cases we documented.
The problem is that many states have passed anti-abortion measures and thirty-eight states have feticide laws that treat eggs, embryos, and fetuses as if they are completely separate legal entities from the pregnant women. They encourage arresting officers, certain doctors, and healthcare providers to view the women as having a second-class status so that they can impose their views and impede on very fundamental human rights, including the right to medical decision-making.
Guernica: Are these laws concentrated regionally? Almost one-quarter of the total cases in your study were found in South Carolina alone.
Lynn Paltrow: These abuses have taken place in every part of the country. Between 1973 and 2005, these cases occurred in forty-four states, the District of Columbia, and several jurisdictions. We found them more highly concentrated in the South and the Midwest, but again we’ve seen them in every region. And since 2005, we’ve documented more than 200 cases, and that’s not even using the type of extensive research we did in the study.
Guernica: I also found it jarring that three-quarters of the cases brought against African-American women were from the South. What role does race play in pregnant women’s criminalization?
Lynn Paltrow: One of the things that was even surprising to us was the scope of legal control that’s being implemented against pregnant women. So it’s not just criminalization of pregnancy: It’s really the combination of both criminal and civil law to put into place what we’re calling a “New Jane Crow.”
The day she was first taken into custody, the fetus was appointed a lawyer, but she was not assigned a lawyer until more than ten days later.
In the case of Angela Carder—who was not a woman of color but was a disabled woman—we got the court to say that pregnant women don’t lose their right to bodily autonomy and that the forced surgery was wrong. But it was what the dissenting judge said that was really interesting. He said that he disagreed, that it was right to view the fetus inside of Angela Carder as if it were already separate with its own rights, but he did something that was very rare. He acknowledged what that would mean to the status of women if that were accepted as a general matter of law. He said that he recognized that it would essentially remove pregnant women from the protections of the Constitution and establish a permanent underclass for pregnant women. He said that by becoming pregnant and continuing a pregnancy, a woman becomes part of a unique category of persons. And what we’ve seen from our cases is that you can deny that class of persons practically every right associated with personhood.
We know that experience of being deprived personhood is one that African-American women experienced under slavery, and they experienced it under the old Jim Crow, which was also a Jane Crow. They will be the ones disproportionately affected by the New Jane Crow, or the use of laws that purport to only limit abortion but really are putting into place a system of law that allows state authorities to deprive women of their personhood.
We have seen that 56 percent of the cases in our study were brought against African-American women even though African-American women are approximately 13 percent of the female population. We also found that African-American women were more likely to be charged with felonies and more likely to be turned into authorities by healthcare providers.
There’s a commentary by Alice Walters on RH Reality Check in which she does a beautiful job of expanding upon that notion about how African-American motherhood in this country has always been devalued.
When you give power to outsiders to control and punish pregnant women, what happens is that the focus is on the control of those women instead of on care. This is a hoax. The notion that we protect anybody by locking them up should be rejected based on the experiences of the millions of people in jails and prisons.
While we see that these cases are brought against all women—and in fact, there are about seventy new cases in Alabama since the report, mostly filed against white, rural women—it is a model of control that we recognize going back to slavery. If personhood measures are allowed to pass, if we don’t repeal feticide measures, if we allow continued anti-abortion measures to pass, we will see once again a system of law in which women lose their personhood upon becoming pregnant—most especially women of color, and of women of color, most especially African-American women.
Guernica: How do you respond to critics who argue that locking up a pregnant, drug-using woman actually provides the best care for her and her child, since she would receive access to maternal and drug treatment?
Lynn Paltrow: I’ll give you an example. Recently, in Oklahoma, a woman went into the hospital. The staff perceived her as non-compliant—she wouldn’t lie down, she wouldn’t get on the table—and they eventually called the police. The police searched her, and when they found two pills she did not have a prescription for they arrested her for possession of an illegal drug and took her to jail where she died two hours later of an ectopic pregnancy.
We think that somehow we can advance the health of our future children by putting women in prisons and jails which often have extremely inadequate healthcare. What we found in our research is even when women are held in hospitals, they don’t necessarily get the healthcare they need. Because once you make them the subject of state control, it’s no longer about healthcare. It’s about state control.
There are two great examples from the study. One is a woman who was diagnosed with gestational diabetes. According to healthcare providers, she didn’t come back for the secondary testing they thought was necessary. So they began civil commitment proceedings and civilly committed her to the same hospital. They said she wasn’t insane, nor was she a danger to herself, but she had mental health problems that were preventing her from obtaining necessary prenatal care. So lo and behold, they locked her up in the hospital for likely the duration of her pregnancy and never gave her the gestational diabetes tests they said she should have had and claimed were so vital to her future child.
[Leading women of color advocates] for a long time have challenged the term pro-choice as one that was far too narrow … If you are a woman of color, if you’re low-income, if you’re disabled, you might have access to abortion and still not be able to have access to overcome the oppression you face.
In Wisconsin, a woman voluntarily went to the hospital to get help for a drug problem. But instead of providing the care she needed, the hospital used Wisconsin’s “cocaine mom” or “crack baby” law, which allows you to civilly commit a woman who is perceived to be habitually using alcohol or drugs. So instead of helping her at that hospital, where she was near her husband and her son, the staff called state authorities who committed her to a hospital at least two hours away and locked her in a mental ward where she was put on Xanax and received no prenatal care. The day she was first taken into custody, the fetus was appointed a lawyer, but she was not assigned a lawyer until more than ten days later.
When you give power to outsiders to control and punish pregnant women, what happens is that the focus is on the control of those women instead of on care. This is a hoax. The notion that we protect anybody by locking them up should be rejected based on the experiences of the millions of people in jails and prisons. It is absolutely a consensus amongst medical groups that we will have less healthy women and children if we make them subjects of state control.
Guernica: Earlier this month, Planned Parenthood dropped “pro-choice” from their branding, which is something NAPW has advocated in the past. Is moving away from “pro-choice” a step in the right direction?
Lynn Paltrow: Women of color in particular—including leading women of color advocates like Loretta Ross, founder of SisterSong—and Asian Communities for Reproductive Justice, which is now Forward Together—these individuals and organizations for a long time have challenged the term “pro-choice” as one that was far too narrow. It articulated a central core of second-wave white feminists’ identity and accomplishments. Second-wave white feminists grew up at a time where abortion was illegal, where being forced to continue a pregnancy to term or have an illegal abortion really meant the difference between your ability to be full and equal participants in society or not. So abortion, and “choice” as a term, really represents a lot about your access to personhood and equality in the United States.
But if you are a woman of color, if you’re low-income, if you’re disabled, you might have access to abortion and still not be able to have access to overcome the oppression you face, the racism–you can’t get the healthcare you need during your pregnancy, that you can’t get the healthcare you need for the children you have. Activists like Ross saw that vision of “choice” as too narrow and developed the concept of reproductive justice. It calls for not only reproductive health, but for justice, for the economic and social conditions that enable people to make decisions about their health and to exercise their rights in a meaningful way. Reproductive justice has been an alternative framework that has been very valuable. In many ways, we see NAPW as the legal advocacy arm of the reproductive justice movement.
But we also know that there’s not going to be a bumper sticker that’s going to resolve the abortion debate. I hope that what our research helps us move toward is a broad and shared agenda that people—whether they identify as pro-choice or pro-life—can join. An agenda that says that we can’t have a culture of life if we don’t value and include the women who gave birth to that life. We know many individuals who identify as pro-life who would rather see an end to all abortions, but they aren’t pro-life in the singular: they also care about the life of mothers and the already-born children they have.
There are a lot of pro-life people who have been told that when Roe is overturned, only doctors will be punished. But then you tell them that women will go to jail for having an illegal abortion they obtained in one of the 87 percent of counties that don’t have access to abortion providers. They don’t want to see mothers go to jail as murderers for having ended a pregnancy. They don’t want to see women die because they don’t have access to legal abortion services. They don’t want to see anti-abortion arguments prevent them from having their sixth baby with a midwife. They don’t want a judge to send law enforcement officers to their house because a doctor does not want her to use a midwife.
Guernica: Your work takes aim at personhood laws, the Drug War, and the prison-industrial complex. Are there organizations or movements you think are “doing it right” when it comes to these intersections?
Lynn Paltrow: Fortunately there are organizations like SisterSong and Colorado Organization for Latina Opportunity and Reproductive Rights (COLOR) who do tremendously integrated work challenging personhood measures. Another group, called Parents Against Personhood, is run by Christian white women in Mississippi who recognized that the personhood measures would, amongst other things, make IVF illegal, so they organized across issues.
Guernica: What personhood battles on the horizon should activists be watching closely?
Lynn Paltrow: Well, Alabama just followed South Carolina but even more radically. The judges in Alabama decided that the meaning of the word “child” under Alabama criminal law includes fertilized eggs. They came to that interpretation in cases in which more than seventy women have been charged under Alabama’s chemical endangerment of a child law, a law that was passed about adults who bring children to dangerous locations where controlled substances are being manufactured; meth labs, for example. The primary people who have been arrested under that law aren’t people bringing children to meth labs, but pregnant women who’ve gone to term and given birth to healthy babies.
The rationale of the court is that just from the word “child” we can make this law applicable to pregnant women. We know that the legislature thought about making it applicable to pregnant women who used a controlled substance and they turned it down. The legislature very clearly did not intend for the law to be interpreted this way. As a result of the interpretation, it will create a truly unequal system of law in Alabama. Since the word “child” means fertilized egg, a woman who is prescribed a controlled substance as part of her epidural is committing the crime of chemical endangerment of a child. A woman with an opiate addiction who does what the government asks and gets methadone treatment is committing a crime now in Alabama.
What I think people have to recognize is that the debate that keeps being narrowly described as “the right to abortion” is really one about whether we’re going to have a system of separate and unequal law for pregnant women and, really, all women. Because, once these laws are in place, if a woman is arrested for drunk driving, they’re going to also have to see if she’s pregnant. Law enforcement is going to have to figure out if every woman is pregnant or not to see what else she should be charged with, like child endangerment.
In Tennessee just a few weeks ago, a woman was in a single car accident. The police tested her to see if she was intoxicated, and she was under the legal limit. Yet they still arrested her for driving under the influence. Why? Because she was deeply concerned about the health of her baby so admitted she was four months pregnant. She was taken to jail and charged with driving under the influence and endangerment of a child.
In Indiana, a woman was arrested for attempting suicide. It is not a crime to attempt suicide. Bei Bei Shuai attempted suicide, survived, and tried to do everything she could to make sure the baby survived. She gave birth and the child died, and she is now charged under the state’s murder of a viable fetus law on attempted feticide. This makes it clear that there is a separate and unequal law for pregnant women in Indiana when women may be punished for attempting suicide and men cannot be.
Guernica: With a case like Bei Bei Shuai’s, which did ignite outcry over the summer, what lessons can be learned about the ways we should be fighting these charges and these laws?
Lynn Paltrow: In the Bei Bei Shuai case we made a Change.org page. At first I thought, “What is that going to do?” But it’s clear that the prosecutor is taking note of the national and international outcry. After all, he is an elected official. It hasn’t gotten him to the point of dropping charges, but he has commented publicly about how surprised he is at the outcry.
Contact the prosecutor and arresting officer in your town if you find out that a woman is being mistreated by authorities. Consider Christine Taylor in Iowa. She fell down a flight of stairs and went to the hospital out of concern for her future child. While there, in conversation with one of her healthcare providers, she mentioned feelings of ambivalence early on in her pregnancy, which she no longer felt. She was released from the hospital, and on her way home she was stopped by the police and arrested on charges of attempted feticide.
When that happens, those arresting officers should be challenged. The prosecutor should be challenged. Women should show up at their places of business and if necessary, their homes, with pregnant bellies saying what you are doing is not advancing fetal, maternal, or child health. You are not making this world safer for life. What you are doing is treating women as second-class persons.