February 1, 2013 — "Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women's Legal Status and Public Health," Paltrow/Flavin, Journal of Health Politics, Policy and Law, January 15, 2013.
States' efforts to establish constitutional rights for fertilized eggs have "raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions," wrote Lynn Paltrow of National Advocates for Pregnant Women and Jeanne Flavin of Fordham University. Although reports of such instances have been published in the four decades since abortion was legalized nationwide, these cases "have never been systematically identified and documented, nor has the basis for their deprivations of liberty been comprehensively examined," they added.
In this article, Paltrow and Flavin reported on 413 cases from 1973 -- the year of the Supreme Court's Roe v. Wade decision -- to 2005 in which "pregnancy was a necessary factor leading to attempted and actual deprivations of a woman's physical liberty."
The researchers focused on cases in which "authority was sought or obtained to restrain a pregnant woman or massively curtail her physical liberty," including arrests; jailing or imprisonment; increases in sentences; detentions in treatment programs or medical facilities; and forced medical interventions, including surgery.
The researchers obtained information about cases through published articles and other reports, legal and other databases, their own involvement in cases, and informal inquiries to legal professionals and health care providers. They then recorded and analyzed information on each case, including the women's demographics and various case characteristics, such as charging information and pregnancy outcome.
In addition to findings on the sample as a whole, the article also described details of five illustrative cases.
Key Characteristics of Cases
The 413 total cases spanned 44 states, the District of Columbia, and some federal jurisdictions, with the largest proportion in the South (56%), followed by the Midwest (22%), the Pacific and West (15%), and the Northeast (7%).
The majority of women were economically disadvantaged, with 71% qualifying for indigent defense. Among the 368 cases that included information on race, 59% involved women of color -- predominantly, African American women. The overrepresentation of African American women was especially prominent in the South, where nearly three-fourths of the cases brought against African American women originated.
In one in five cases, legal action was taken against the woman while she was still pregnant, sometimes early in pregnancy. Overall, about one in 10 cases mentioned violence against the pregnant woman. In a number of cases, the woman's arrest occurred after she sought help for physical abuse and police cited factors such as alcohol or drug use while pregnant as a reason for the arrest.
The researchers noted that many cases defied simple characterization. "The difficulty of categorization notwithstanding, we found that the majority of cases identified in this study focused on women who became pregnant, sought to continue to term, and were believed to have used one or more illegal drugs, with cocaine most often identified as one of them," they wrote.
In all, 348 cases (84%) "involved an allegation that the woman, in addition to continuing her pregnancy, had used an illegal drug," the study found. Specifically, 282 cases identified cocaine as one of the drugs used. Meanwhile, 65 cases (16%) involved no allegation of using an illegal drug but instead were predicated on claims that women had not obtained prenatal care, had mental illness, had gestational diabetes or had lost a pregnancy.
In the majority of cases, the action taken against the pregnant woman was not based on evidence of actual harm to the fetus or newborn. In fact, two out of three cases mentioned no adverse pregnancy outcomes. Instead, many cases rested on claims that there was a "risk of harm."
In numerous cases in which there was alleged harm, there was no evidence, scientific or otherwise, to causally link the harm and the woman's alleged action or inaction.
Justification of Legal Claims
"Overwhelmingly, the deprivations of liberty ... occurred in spite of a lack of legislative authority, in defiance of numerous and significant appellate court decisions dismissing or overturning such actions, and contrary to the extraordinary consensus by public health organizations, medical groups, and experts that such actions undermine rather than further maternal, fetal, and child health," the researchers wrote. They noted that appellate courts have largely rejected attempts to use laws intended for other purposes, such as protecting children, as a justification for actions against pregnant women.
In nearly every case in which the researchers identified an underlying legal theory, it was "the same [theory] as that asserted by proponents of personhood measures: namely that the fertilized egg, embryo, or fetus should be treated as if it were completely legally separate from the pregnant woman herself."
Various judges and attorneys in the cases contended that the legal authority for their actions against the pregnant women came from feticide statutes that legally separate the fetus from the pregnant woman, state abortion laws with language similar to "personhood" measures or misrepresentations of Roe v. Wade as holding that fetuses may be regarded as separate persons after viability.
"The hundreds of cases this study documents raise numerous concerns about the health and dignity afforded to pregnant women in the United States," the researchers wrote. They noted that in many cases, the women experienced the risks of pregnancy and childbirth "only to find that doing so provided the basis for being charged with a crime."
The findings of the study "challenge the notion that arrests and detentions promote maternal, fetal, and child health or provide a path to appropriate treatment," Paltrow and Flavin continued, adding that the results "overwhelmingly" refuted claims that arrest or prosecution would ensure a woman would receive appropriate treatment or that actions only would be taken if treatment was refused.
Further, the findings challenge the notion that such interventions are rare or occur only among a narrow group of women. "Our research shows that these state interventions are happening in every region of the country and affect women of all races," the researchers wrote.
The data also revealed "disturbing patterns" indicating "that the majority of cases have included an allegation relating to the use of an illegal drug (overwhelmingly cocaine), that low-income women, especially in some southern states, are particularly vulnerable to these state actions, and that pregnant African American women are significantly more likely to be arrested, reported by hospital staff, and subjected to felony charges." The researchers emphasized that the risk of harm from prenatal exposure to cocaine is neither qualitatively different nor easily distinguishable from other factors.
With regard to efforts to grant constitutional rights to fertilized eggs, the researchers concluded that "the implications are clear: if feticide statutes that purport to protect pregnant women and fetuses from third-party attacks and existing laws that declare separate rights for eggs, embryos, and fetuses are already being used as the basis for justifying depriving pregnant women of their liberty, we must expect that personhood measures will be used this way too."
Therefore, "far from being a scare tactic, our findings confirm that if passed, personhood measures not only would provide a basis for recriminalizing abortion, they would also provide grounds for depriving all pregnant women of their liberty," Paltrow and Flavin wrote.
Debra Ness, publisher & president, National Partnership
Andrea Friedman, associate editor & director of reproductive health programs, National Partnership
Marya Torrez, associate editor & senior reproductive health policy counsel, National Partnership
Melissa Safford, associate editor & policy advocate for reproductive health, National Partnership
Perry Sacks, assistant editor & health program associate, National Partnership
Cindy Romero, assistant editor & communications assistant, National Partnership
Justyn Ware, editor
Amanda Wolfe, editor-in-chief
Heather Drost, Hanna Jaquith, Marcelle Maginnis, Ashley Marchand and Michelle Stuckey, staff writers
Tucker Ball, director of new media, National Partnership