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Study finds widespread 'criminalisation of pregnancy' in US institutions

Posted by on Jan. 15, 2013 at 8:40 AM
  • 14 Replies

Study finds widespread 'criminalisation of pregnancy' in US institutions

http://www.guardian.co.uk/world/2013/jan/15/criminalisation-pregnancy-women-study

Study cites misinterpretation of Roe v Wade in array of cases where women were denied rights based on pregnancy status

The study found that prosecutors and judges relied on feticide statues that create separate rights for the unborn.

Hundreds of women have been arrested, convicted, jailed, detained in mental institutions or forced to endure medical procedures as a result of the "criminalisation of pregnancy" over the last four decades, a new report has found.

In the first study of its kind, to be published on Tuesday, researchers from the National Advocates for Pregnant Women (NAPW) identified 413 criminal and civil cases across 44 states involving the arrests, detentions and equivalent deprivations of pregnant women's liberty between 1973 and 2005. NAWP said that it is aware of a further 250 cases since 2005. Both figures are likely to be underestimates, it said.

The report, which will appear in the Journal of Health Politics, Policy and Law, found that women were denied a wide range of basic human rights, including the right to life, liberty, equal protection and due process of law "based solely on their pregnancy status".

It found a wide range of cases in which pregnant women were arrested and detained not only if they ended a pregnancy or expressed an intention to end a pregnancy, but also after suffering unintentional pregnancy loss.

The cases of detention and forced medical intervention varied widely and included one in which a judge in Ohio kept a woman imprisoned to prevent her having an abortion.

Another involved a woman in Oregon who refused a doctor's recommendation for additional testing for gestational diabetes. She was held in a locked psychiatric ward. Another case involved a court in Washington DC, which ordered a critically ill woman to undergo caesarian section over her objections. Neither she nor the baby survived.

Lynn Paltrow, executive director of NAPW and lead author of the study said: "Our analysis of the legal claims used to justify the arrests found they relied on post-Roe measures such a feticide laws and the same arguments made in support of so-called 'personhood measures' – namely that state actors would be empowered to treat fertilised eggs, embryos and foetuses as completely legally separate from the pregnant women."

She said: "It is not just the criminalisation of pregnant woman, that almost minimises the scope of what we are talking about. They are using civil statues to keep women committed. Right we're ordering the foetus to be committed and you have to come too."

The study found that police, prosecutors and judges relied directly and indirectly on feticide statues that create separate rights for the unborn, claiming to protecting pregnant women and the eggs, embryos and foetuses they carry from third-party violence, on state abortion laws that include language similar to personhood measures and to "misinterpretation of Roe v Wade as holding what personhood measures propose – that foetuses may be treated as separate legal persons".

Paltrow warned that if personhood measures pass, it would create a "Jane Crow system of law in which pregnant women have a second class status."

The study spanned a four decade period beginning in 1973, the year the US supreme court recognised a woman's right to choose to have an abortion in the landmark Roe v Wade case. However, NAPW said the 413 cases represented a "substantial undercount" and that the denial of fundamental rights of pregnant women was ongoing.

Earlier this month, Maria Guerra, of Memphis, Tenessee, was charged with child endangerment and driving under the influence after she was found to be four months pregnant, even though her blood alcohol level was under the legal limit. In Oklahoma, this month, Jamie Lynn Russell, 33, died in agony from a ruptured ectopic pregnancy in jail. Police, who were called to a hospital where Russell sought help for severe abdominal pain, charged her with drug possession after finding two prescription pills that did not belong to her.

Last year, prosecutors in Indiana classified the failed suicide attempt of Chinese-born Bei Bei Shai, as the murder of her foetus. The case is ongoing.

Jeanne Flavin, Fordham University professor of sociology and co-author of the report, said: "The public debate about personhood and other anti-abortion measures tends to focus narrowly on abortion. Our study makes clear that all pregnant woman are threatened by such measures."

The study, believed to be the most systematic account of its kind, relied mostly on public records such as police and court documents, although a small number of cases were taken newspaper accounts. The women were aged between 12 and 43, and two were minors.

It found that low-income women and African American women were more likely to be deprived of their liberty. The largest percentage of cases of the 413 – 56% – came from the southern states, followed by 22% in the midwest.

South Carolina had 93 cases, the highest number in any state, followed by Florida, which had 56 cases.

The study concludes: "As personhood measures continue to be promoted in state legislatures and in Congress, and as we observe the 40th anniversary of Roe v Wade, this study broadens the conversation form just one abortion to one about health policy and the legal status of pregnant women."

The study concludes: "As personhood measures continue to be promoted in state legislatures and in Congress, and as we observe the 40th anniversary of Roe v Wade, this study broadens the conversation form just one abortion to one about health policy and the legal status of pregnant women."


by on Jan. 15, 2013 at 8:40 AM
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Replies (1-10):
krysstizzle
by on Jan. 15, 2013 at 8:50 AM
Holy shit! I don't have time to read right now, but the first few paragraphs turned my stomach.

I'll be back to finish reading.
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stormcris
by Christy on Jan. 15, 2013 at 8:57 AM

First off let me say I do not disagree with this necessarily just playing devil's advocate of sorts.

However, some of these cases are treating a child under the same definition that allows a murder charge to go against a person for murdering a wanted unborn. Thus if the women have decided to keep the pregnancy the child is then governed as would a child. Thus also the failed suicide attempt would likewise be treated as a failed murder.

It becomes quite the gray area for legislation and prosecution in that if the child were here several of these offenses would be the sort that would be prosecuted. 

I find it interesting that a woman who by all accounts intends to give birth is then after that birth removed of many of the choices that are mentioned here.

angelenia
by Bronze Member on Jan. 15, 2013 at 9:00 AM
this is nauseating and horrifying. thanks for sharing it because people need to know this is happening, OP, but ye gods, it is awful i don't want to believe it is real:(
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UpSheRises
by Platinum Member on Jan. 15, 2013 at 9:07 AM

One in which a judge in Ohio kept a woman imprisoned to prevent her having an abortion.

Another involved a woman in Oregon who refused a doctor's recommendation for additional testing for gestational diabetes. She was held in a locked psychiatric ward.

Another case involved a court in Washington DC, which ordered a critically ill woman to undergo caesarian section over her objections. Neither she nor the baby survived.

Disturbing...

muslimahpj
by Ruby Member on Jan. 15, 2013 at 7:16 PM

This is terrible.

AdrianneHill
by Platinum Member on Jan. 15, 2013 at 8:28 PM
Needles to say, since this is my home state, I know an unfortunate amount about the legal system and government intervention on the behalf of children as yet unborn.
The law is so broad that it will be permissible to charge a woman for causing a miscarriage if she engaged in any risky behavior while pregnant, even if that risky behavior was NOT the cause ofsaid miscarriage. Engaging in the behavior is enough and prosecutors no longer have to show any real harm done or breaking of a specific law, the act of engaging in danger, including riding on a roller coaster or water slide while pregnant at any stage or drinking at any stage of pregnancy whether the woman intended to keep the pregnancy or not. Toal, the chief state justice at the time warned of the suspension of constitutional rights during pregnancy and she was right. It has slowed down a bit but the state is baby grabbing crazy.
State sponsored insurance like medicaid drug tests ask women ad a matter of course and refused treatment without it while dh's job insurance got me a rather sweet and understand ob who only tested people if they lost to much weight or acted high and she admitted that she didn't say anything about mj unless there were other factors that were raising alarms. I asked a lot of questions and after twenty for weeks, she is legally required to report positive drug tests and other unsafe behaviors that mightjeopardize the fetus as if it were a real baby but no damage need be done for an arrest, abuse charges, dissolution of parental rights, and some possible jail time if they are really mad about it. They wonder why we have such dreadful infant mortality rates when the women who need to go to the ob are terrified of going to the Dr. It is much easier for these women to avoid care, give birth, and if there is a problem, run like hell and leave the baby behind. Those women or girls usually leave town if they're smart but if caught, they were going to jail anyway but at least at they put it off for a few months
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Veni.Vidi.Vici.
by on Jan. 15, 2013 at 9:04 PM

this is crazy!

Veni.Vidi.Vici.
by on Jan. 17, 2013 at 3:18 PM
Bump
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radioheid
by Libertarian on Jan. 17, 2013 at 3:27 PM
How about the case of the California woman who was involuntarily discharged from the Air Force after she twice refused to have an abortion? ---Oh yeah, that was me...


"Roger that. Over."

R   A   D    I    O    H    E    I    D

Mrs.Kubalabuku
by Bronze Member on Jan. 17, 2013 at 3:30 PM

Wow, that was a lot to take in.

I have suspected something along these lines was going on.  I do believe pregnant women should have rights protecting a wanted baby.  I know a man who beat his pregnant girlfriend to the point she lost the child.  She was JUST under the legal abortion law of the land, so it wasn't considered a viable baby yet.  All he got was an assualt charge and didn't even end up with jail time, but she feels he murdered their baby because she refused an abortion.

But the wording on such laws inevitably backfires on all pregnant women.  It gets complicated.

I do worry about how many women are losing their right to have a say in their own pregnancy/delivery.  In my state, waterbirths are illegal.  Planned home births are illegal.  You can have your midwife deliver your baby in the hospital or at an approved facility, but not in your own home.  (Technically, you won't get prosecuted if you give birth outside an approved facility.  But it is illegal for a midwife or certified nurse to attend a home birth...how does that make sense?)

I've known women who wanted to refuse medical tests they felt were unwarranted, and the doctors got court orders forcing them into it.  One was just a simple ultrasound.  She didn't want any ultrasounds, she wanted to be surprised.  But they court ordered her b/c it was standard practice.  Not only did she end up in the US, but the nurse/tech blabbed the sex of the baby as well and ruined all the surprises for her.  She didn't even know her doctor was going through the court to order it, she had no idea until he gave her the papers.

These laws can affect so much, and I think legislators are deliberately leaving some of it vague in the hopes of gaining ground in their personal/political agendas when it goes to court.

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