GRSJ224/Criminalization of Pregnancy

The criminalization of pregnancy is an increasing phenomenon in the United States where women are being prosecuted and incarcerated for their actions while pregnant. In 2017 alone, over 300 new restrictions on sexual and reproductive rights were implemented across various states. Historically, pregnancy has been subject to differential treatment under the law, with pregnant women often losing some of their constitutional rights. Today, this alarming trend is only continuing to grow as more and more restrictions are being placed on pregnant women's bodies and the rights of unborn fetuses are being placed above the autonomy of mothers.

Background

Liability for prenatal harm is not a new idea, but up until the 1980’s it had been restricted to harm caused by a third party. In these cases, the rights of the woman and the fetus were both protected. However, during the 1980’s and the war on drugs, attention shifted to fetal harm resulting from a pregnant woman’s use of illegal drugs. The fetus came to be seen as the innocent victim of the criminal mother’s actions. Criminalization of pregnancy has since expanded to include a variety of actions by the mother, including refusing medical treatments, like a caesarian section. These actions are being branded as child abuse, neglect, and even murder. Between 1973 and 2005, there have been over 400 cases in which mothers were charged for “behaviour allegedly harmful to their fetuses”. Today, cases of pregnancy criminalization are generally based on the assumption of reproductive asymmetry. This refers to the belief that women are solely responsible for the health of the fetus. This ignores the data that shows that alcohol and drug use by men can be just as harmful, with evidence showing that it is connected to increased rates of stillbirths and miscarriages.

Loss of Rights

The main issue with the criminalization of pregnancy is that most women who are charged for their actions would not have even been prosecuted had they not been pregnant. For example, a woman was jailed after falling down the stairs and prosecutors suspected the mother had purposely fallen to try and end the pregnancy. Another pregnant woman was charged with first degree murder after attempting suicide. There was nothing criminal about these acts, but because they occurred while pregnant, the women were treated as criminals. This scrutinization of pregnant women shows that a woman becomes second to her unborn fetus the moment she falls pregnant.

The laws surrounding pregnancy were meant to help children and their families, but they have been shown to have adverse effects instead. According to an Amnesty International Report, these strict laws put pregnant women at risk as it forces them to choose between risking their health or risking prison. Under many of these laws, if a woman was to seek medical attention and tested positive for drugs, she can be charged.

Intersectional Effect

The criminalization of pregnancy is gendered in that it only negatively affects women, but there are several other social dimensions that also play a role. It should be noted that pregnancy criminalization laws disproportionately affect low-income women and women of colour. One study sited that White middle-class women who used drugs during pregnancy were more likely to be portrayed as mentally ill and guilt-ridden, while Black women were shown as mindlessly addicted and intended to cause harm to their baby.  These stereotypes are highly influential on health care providers, police, and judges, resulting in higher report and conviction rates for African American women who use drugs than their White counterparts. These women are not only charged at a higher rate, but they also often “do not have the resources to navigate the court system or child protective services”.

Regina McKnight

Regina McKnight at Post Conviction Hearing in 2008.

In 2003, an African American woman from South Carolina named Regina McKnight was tried and convicted of committing “homicide by child abuse”. The Supreme Court of Carolina upheld this decision, making her the first woman in the US to be convicted for having a stillbirth. At the time of the birth, she was only 22 years old and homeless. While at the hospital a urine test detected a chemical derivative of cocaine and she was asked to take a second test. The legal consequences of this second test were not explained to McKnight and she consented, unknowingly making herself criminally liable. While on trial, McKnight was demonized as an irresponsible crackhead, ignoring the fact that she had previously sought drug treatment prior to her pregnancy and was told it was unavailable. Her case demonstrates the issues of a lack of informed consent in the medical system and a court system focused solely on punitive justice. Unfortunately, cases similar to McKnight’s became more common over the following years. In all these cases, the women prosecuted would not have been charged for their actions had they not been committed while pregnant. Years later, the Supreme Court found that McKnight did not have a fair trial as the court did not consider factors outside drug use that could have contributed to a stillborn birth. The case of Regina McKnight exemplifies how the current system in place ignores the social and economic factors that often lead to drug use and instead implies criminal intent in the acts of individual mothers.