Consider This from NPR - Criminal Prosecution Of Pregnancy Loss Expected To Increase Post-Roe

Episode Date: July 2, 2022

In states across the country, long before the Supreme Court overturned Roe v. Wade, pregnant people were already being criminally charged, convicted, and imprisoned for loss of pregnancy. Advocates for reproductive rights say this is because laws created to protect pregnant people from violence and abuse are being used to prosecute people whose pregnancies end prematurely. We speak with Dana Sussman of National Advocates for Pregnant Women about how the prosecution of pregnancy loss could look in the country's new, post-Roe era. The organization documents and provides legal defenses in cases involving pregnant people charged with pregnancy-related crimes. In participating regions, you'll also hear a local news segment to help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

This message comes from Indiana University. Indiana University performs breakthrough research every year, making discoveries that improve human health, combat climate change, and move society forward. More at iu.edu forward. A South Valley mother accused of causing the stillbirth of her baby is now fighting criminal charges for a second time. A week after her arrest for the death of her unborn baby, the manslaughter charge against Marshae Jones is no more. Texas District Attorney is filing a motion to dismiss the indictment against a woman who was charged with murder after authorities said, quote,

she caused the death of an individual by self-induced abortion. Long before the Supreme Court's decision to overturn Roe v. Wade, pregnant people have been criminally charged, convicted, induced abortion. Long before the Supreme Court's decision to overturn Roe v. Wade, pregnant people have been criminally charged, convicted, and imprisoned for failed pregnancies and stillbirths. Advocates who have defended these people and even some prosecuting authorities say this is happening because laws that were never intended for that purpose are being used that way. So if there is an attack on a pregnant woman that causes the loss of her pregnancy, one could be charged for both causing the harm to the pregnant woman herself and to the fetus. But what some of these laws have been used for already, and what we anticipate that they will

be used for even more in this post-Roe world, is the prosecution of the pregnant woman or the pregnant person themselves for pregnancy loss. Dana Sussman is Acting Executive Director for National Advocates for Pregnant Women. That's a group that documents and provides legal defenses in cases involving pregnant people charged with pregnancy-related crimes, including murder, manslaughter, and felony child neglect. What we have seen, and in cases where we have provided legal defense, mothers who experience a stillbirth or a miscarriage are blamed for that loss because of behavior or exposure of an alleged risk of harm to the fetus that they are then blamed for causing the pregnancy loss. use by a pregnant person. And while some people may feel that anyone who uses an illegal substance while pregnant deserves to be punished, Sussman says there is just too little conclusive evidence

on the effects of these substances on pregnancy to justify that. And she also says that pregnant people aren't just being prosecuted for using illegal drugs. We have examples of cases who have used prescribed Adderall, who have used medical marijuana. We have had cases of women using prescribed painkillers for pre-existing conditions and have faced criminal charges. In fact, Sussman says, charges have stemmed from almost anything that law enforcement and prosecutors believe might have caused a pregnancy to end. We've had cases where a woman has fallen down a flight of stairs while lightheaded during pregnancy and was charged with attempted fetus side because they suspected that she did it on purpose. Consider this. Across the country, laws intended to protect pregnant people from violence and abuse

are also being used to prosecute people whose pregnancies end prematurely. With the repeal of Roe, legal advocates for reproductive rights are bracing for an increase in cases of prosecution for miscarriages and stillbirths. That's coming up. From NPR, I'm Michelle Martin. It is Saturday, July 2nd. This message comes from WISE, the app for doing things in other currencies. Send, spend, or receive money internationally, and always get the real-time mid-market exchange rate with no hidden fees. Download the WISE app today, or visit WISE.com. T's and C's apply. 38 states in the country have a separate and unique crime for causing harm that results in the death of a fetus or fetal demise. That's Dana Sussman again, acting executive director for National Advocates for Pregnant Women. Even before Roe was overturned, advocates like Sussman say they worried about laws that were described as a way to address violence and abuse directed against pregnant people. Many of those laws have vague language around what exactly those laws are targeting. Many of them were championed as ways

to prevent violence against pregnant people and were essentially creating a new class of crime victim, the fetus. A 19-year-old Native American girl in Oklahoma went to the hospital after suffering a miscarriage at home. Brittany Pula was put under arrest. Brittany Pula was arrested and charged with first-degree manslaughter in the death of her infant child. A woman has been found guilty of first-degree manslaughter today. Pula's child died at 17 weeks gestation. Pula was sentenced to four years in prison. The case of Brittany Pula attracted national attention when she was charged and later convicted after the loss of her pregnancy. Pula acknowledged using meth and marijuana while pregnant, but the cause of her miscarriage could not be proven.

The medical examiner in that case did not know the cause and admitted that and said that the methamphetamine use may have been a contributing factor, but listed four or five other causes, and despite that, she was still convicted. The National Advocates for Pregnant Women took on Brittany Pula's case. I asked Dana Sussman about that case and others and how prosecution of pregnancy loss could look in the country's new post-Roe era. Brittany Pula, she experienced a miscarriage at 15 to 17 weeks, well within the range when miscarriages are exceedingly common and when there are, for the vast majority of them, no known cause. She experienced a

miscarriage. She went to the hospital in the midst of a medical emergency, and she shared with the providers there that she had used marijuana and methamphetamine during her pregnancy. She was later charged with manslaughter under Oklahoma law. Manslaughter was always intended to apply, of course, to negligently causing the death of another person, but it has been reinterpreted by Oklahoma prosecutors and essentially sanctioned by the highest court in Oklahoma to now apply to fetuses as well. She was convicted after a one day trial and sentenced to four years in prison, and she is currently serving that term right now. We represent another woman

in California, Chelsea Becker, who experienced a stillbirth. She was charged with murder under the provision of the murder statute in California that is a feticide law. That law has language in it that states that this is not intended to be applied to the pregnant person herself. And yet she was still charged under that provision of the California statute. She was incarcerated for 16 months while her trial was pending. Eventually, we were able to get those charges dropped. But as we were representing Chelsea, we learned of an identical case out of that same county, same hospital, same prosecutor of a woman named Adora Perez, who was also charged under that provision and was serving an 11-year term in California.

We were just able earlier this spring in May, in coalition with some groups in California and her local attorneys, to eventually get her charges dropped after a court ruled that her plea in that case was unconstitutional. So she had served four years of an 11-year sentence in California for feticide under a statute that was never intended to be applied to the pregnant person. So you're arguing that these laws explicitly were not intended. One assumes that you're looking to the legislative record to make that assertion that in looking to the legislative record, these laws were not intended to be used in that way. So there are those who would argue that people using known harms like methamphetamine during pregnancy, that does warrant some sort of social sanction. So talk to me about that. First of all, what's the legal argument for using the law in that way? And what do you say to people who might think that that's justified, given that there are known harms to using certain drugs,

certainly certain substances while pregnant, if you know you're pregnant, especially if you know you're pregnant. Well, on the question of using drugs and being pregnant, what I think is really important to remember here is that the science doesn't back it up. There may be some risk of certain outcomes with respect to the health of the baby that are most typically transitory and temporary, things like low birth weight that typically have no long-term impact on the health of the baby. And in the majority of the cases that we work on, in fact, there are healthy long-term birth outcomes. We are not talking about universally that women who use methamphetamine are causing a pregnancy loss. But I also want to mention that we've had cases where a woman was charged with manslaughter because she drove recklessly without a seat belt while eight months pregnant and got into a car accident and lost the pregnancy.

So there are examples, you know, while the drug use cases, I think, are the most numerous in our data, there are egregious examples of people who have engaged in behavior that is, you know, just being a human in, you know, being a person and engaging in activities that everyone else engages in. But again, because you are pregnant, you are now held to essentially a higher standard and can be charged with crimes where you can be sentenced to a life in prison because of your status as a pregnant person. The second thing that I would respond to is that this is a public health issue. If we are going to criminalize conduct during pregnancy, including self-managing an abortion or experiencing a pregnancy loss,

we are discouraging people from seeking care. And we are going to have far worse health outcomes for both moms and babies and families. That has been documented in places that have explicitly criminalized pregnancy. So if we're talking about preserving the health and welfare of fetuses and pregnancies, this is just not the way to do that. It would seem just from the cases that you've described that there are people who are particularly vulnerable to being investigated in this way. I mean, it would seem that women who have a history of illegal drug use or women who are not of means, just being honest about it, just seem more vulnerable to being scrutinized by law

enforcement, period. But is part of your concern here that this creates a general sort of criminal justice involvement in pregnancy loss? Yes, absolutely. You're right that historically 80% of the cases that we've tracked involve women who are poor, who are subject to state surveillance in a variety of ways, whether it's because they're on public health insurance and there are certain requirements surrounding that, or whether they already have system involvement with respect to the child welfare system. But this is the canary in the coal mine. We have allowed in this country for the state to monitor and control and impose criminal sanctions on people because of what they do or don't do during pregnancy. We have set up a system that will allow for the expansion of criminalization for people who self-manage abortion and experience pregnancy loss.

And especially where we are looking at medically indistinguishable presentations, right? When you talk about self-managed abortion and we talk about a miscarriage, it is going to be very hard for criminal law enforcement to know whether someone self-managed an abortion or experienced a miscarriage. And so miscarriages and pregnancy losses more broadly will be swept in and will be deemed, quote, suspicious. And criminal law enforcement will be invited in to make the assessment as to whether this is something that they are going to charge women with. The consequences of being prosecuted for losing a pregnancy. That's coming up. Researched by National Advocates for Pregnant Women found that between 2006 and 2020,

more than 1,300 women were arrested, detained, or faced punitive action in cases where their pregnancy was the key factor and they're being accused of a criminal offense. So I want to be very clear that an arrest, even if we are able to get the charges dropped, and we have historically in this, you know, before the decision last week, we have often been able to successfully argue that the charges should not have been brought in the first place, the harm is done. In Chelsea Becker's case, she was incarcerated and jailed because she couldn't make bail for 16 months. She lost custody of another child in that process. She is now out and she is trying to rebuild her life, but she had been, you know, her mugshot, all of our clients, their mugshots are out in the public.

They are being talked about as if they are unfit mothers, that they caused the loss of their pregnancies. The harm is done when the specter of criminal law enforcement surrounds these medical emergencies. And as I said, even when people are not charged but they are avoiding prenatal care because of the possibility of being charged. The harm is done. We expect that we will have, frankly, a harder time defending these cases in this new world that we live in, where more and more states will either legislate or will reinterpret their laws such that fetuses are children under their criminal and their civil codes, and laws

that had never been intended to, were never written to be applied in the pregnancy context, will now be applied in the pregnancy context. Felony child neglect or child abuse. Already, some states have done this, and we expect more will. That's the last question I actually had for you, because in reading the majority's opinion in the case that was before the court that overturned Roe, it seemed that the writers went out of their way to portray this as a narrow opinion with limited scope, very much limited to abortion itself. And I take it you disagree, particularly based on your end. And again, you can see where some people would think that your concern here is far-fetched.

So I guess the question would be, why do you say it isn't? Well, in our brief to the Supreme Court in this case, we emphasized that this is not just about abortion, that the concept of fetal personhood that Justice Alito mentioned again and again and essentially said that a state's interest in fetal personhood that Justice Alito mentioned again and again, and essentially said that a state's interest in fetal life justifies any and all restrictions on access to abortion, meaning complete bans, which are now in effect that have no exceptions whatsoever,

are justified by the state's interest in fetal personhood. That concept has far-reaching implications because, again, if we are going to assign fetuses personhood rights, that means that they are separate and unique victims, that they are redefined in state law as people from the moment of conception. And states have already done this. I have to be very clear here. Dozens of states have already passed laws that define a human being as in some cases from the moment of conception, in other cases as fertilized eggs, embryos, and fetuses. Many of those laws have not been fully implemented because Roe and Casey were still the law of the land. Without Roe and Casey pushing back the line on fetal personhood, we are about to see the full reimagination of criminal and civil codes in this country in the states that have already

redefined fetuses and fertilized eggs and embryos as children or as human beings under their criminal codes. And when you do that, who are the people most likely to be criminalized with respect to this new class of people, of humans under their laws? It's going to be the pregnant person. Both of those concepts, restrictions on abortion access and the rise in fetal personhood, are used to control and criminalize pregnant people. Dana Sussman is the Acting Executive Director of the National Advocates for Pregnant Women. It's Consider This from NPR. I'm Michelle Martin.