“Criminalized pregnancy” hurts poor and minority women most, faces legal challenges

By Dana Ziegler
Associate Editor, Vol. 21

In March 2015, Purvi Patel, an Asian-American woman from Indiana, became the first woman in the U.S. to be convicted and sentenced for feticide. She was sentenced to 20 years in prison for feticide and neglect of a dependent after she had a self-administered abortion. Previously, Indiana pursued charges against a Chinese immigrant, Bei Bei Shai, for a failed suicide attempt while pregnant. In July of 2014, Mallory Loyola became the first woman arrested for using meth days before the birth of her child under Tennessee’s new law criminalizing drug use during pregnancy if the child is born addicted to or harmed by the narcotic drug as a result of the mother’s drug use.

The criminalization of pregnancy has a disproportionate impact on minority women, often from underprivileged or immigrant communities. A 2013 study by the National Advocates for Pregnant Women (NAPW) of arrests and forced interventions on pregnant women in the U.S. from 1973-2005 surveyed 413 civil and criminal cases in which “a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a pregnant women’s liberty.” Approximately 71 percent were low-income women and 59 percent were women of color, and Black women were significantly more likely to be arrested, reported to state authorities by hospital staff, and subjected to felony charges than women of other races. An amicus brief for Purvi Patel’s case by the National Asian Pacific American Women’s Forum and the Center on Reproductive Rights at the UC Berkeley School of Law also pointed out that women of color may be more distrustful of the U.S. healthcare system given its history of abuses against them, and that immigrant women in particular may be unaware of the legality of abortion in the U.S. In sum, women of color are more likely to lose custody of their children, have disrupted family lives, and be impaired in their ability to support their children while incarcerated.

Arrests and detentions based on pregnancy status occur in cases of suspected drug or alcohol use, abortion or intention to have an abortion, and even unintentional pregnancy loss. Laws criminalizing substance use and feticide provide a statutory basis for the deprivation of pregnant women’s rights. These laws repugnantly add an additional criminal penalty for women who engage in illegal activity that is based solely on their pregnancy status. Laws criminalizing substance use during pregnancy have a deep impact on women’s health by deterring women who use alcohol, illicit drugs, and even cigarettes from completing pregnancies and receiving prenatal care due to the threat of criminal charges. Originally contemplated to punish abusive husbands, boyfriends, or others who harm pregnant women or illegal abortion providers, laws criminalizing feticide will also deter women from seeking healthcare and prenatal care. Moreover, such laws will foster distrust of the medical system and may even cause women to fear punishment for inadvertent harm to their fetuses.

The latest in a series of attacks on women’s rights and autonomy, laws criminalizing pregnancy raise the question of whether women’s constitutional rights are being violated. The 2013 NAPW study found that U.S. women affected by the criminalization of pregnancy were often denied basic human rights “including the right to life, liberty, equal protection and due process of law based solely on their pregnancy status.” The appellate brief for Purvi Patel’s case, released on October 2nd, argues that federal and state constitutions do not permit prosecuting a woman for her own abortion. Patel asserts that the feticide statute, interpreted to apply to abortions, would place an “undue burden on women by exposing them to severe criminal penalties absent proof they had any idea they or anyone else were doing anything wrong.” This “undue burden” standard comes from the Supreme Court’s Planned Parenthood v. Casey opinion, which invalidated statutes that “have the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Patel argues further that any woman who deviates trivially from the requirements of Indiana’s abortion statutes can be punished, such that only a woman who carefully reads through the statutory requirements and ensures all involved are complying with the law will escape prosecution.

Criminalizing drug and alcohol use during pregnancy will lead to absurd results by deterring women from seeking healthcare and resulting in less healthy pregnancies. The fact that certain classes of women are disproportionately and negatively impacted by these laws is disturbing as well. However, legal arguments grounded in statutory construction, case precedent, and federal and state constitutions offer some hope to withstanding the attacks on the rights of pregnant women. As Lawrence Marshall, Stanford Law professor and appellate lawyer for Patel stated, “there’s so much passion around the case that may have distorted the neutral application of the law.”