Last April, Lizelle Herrera was arrested for having an abortion at her home in Texas. A few months earlier, Brittney Poolaw was sentenced to 4 years in prison for “involuntary manslaughter” after losing her pregnancy in Oklahoma.
Chelsea Becker, who had a drug addiction, was in jail in California by months after suffering a stillbirth.
And in 2015, Purvi Patel was sentenced a 20 years in jail in Indiana for “feticide” after seeking medical care after a miscarriage…
They are not the only ones.
Although news about cases of this type are frequent in countries such as El Salvador or Guatemala, it is little known that the United States is one of the nations in the region where more women go to jail for causes associated with their pregnancies.
According to data from the National Advocates of Pregnant Women (NAPW), a women’s legal defense organization, more than 1,472 women have been imprisoned or have been arrested and prosecuted for some “crime” associated with their pregnancy since 840, when abortion was legalized in the country.
“In the United States there are literally hundreds of women who have been arrested and accused of crimes against their fetuses. It is not something that happens only in Central America,” Grace Howard, an expert in the criminalization of pregnancy at San José State University, in California, tells BBC Mundo.
Dana Sussman, Acting Director of NAPW , tells BBC Mundo that, according to the statistics of his organization, if he enters 1973 and the year 2000 some were reported 400 cases of women prosecuted for these causes, in less than 2 decades that figure has tripled.
“In the last 15 years have been reported, according to the most recent data we have, about 1,240 cases. This shows that the positions towards the criminalization of pregnancy have radicalized notably in this period in the United States and hence our concern about what may happen from now on”, he assures.
Last week, the Supreme Court annulled Roe vs. Wade, the momentous decision that legalized abortion almost 50 years and that served as protection so that many of the women tried for these reasons were later released.
From now on, the interruption of pregnancy will no longer be seen as a constitutional right and the limits they wish to impose on pregnant women will depend on each state.
“Yes, with Roe v. Wade we saw this extraordinarily high number of cases of women incriminated for their pregnancies, what we hope is that this will multiply and that increasingly restrictive laws will be approved to criminalize pregnant women”, warns Sussman.
Though many states have assured, for the moment, that they will only penalize doctors and clinics that practice abortion, legal experts fear that this measure will only be the beginning.
Last year, the National Association of Lawyers of The US Criminal Defense published a report in which it pointed out that the prohibition of abortion in numerous states could lead to “overcriminalization” and “mass incarcerations” in much of the country, not only of women, but of anyone who assist, advise or offer an interruption of pregnancy.
New Penalties
The case shocked the United States: in 2019 Adora Pérez was convicted and spent more than three years behind bars in California (she was released last March) for the “murder of a human fetus ”: had given birth to a stillborn infant whose necropsy showed traces of methamphetamine (although there was no evidence that this caused stillbirth).
The case shocked the United States: in 2019 Adora Pérez was convicted and spent more than three years behind bars in California (she was released last March) for the “murder of a human fetus ”: had given birth to a stillborn infant whose necropsy showed traces of methamphetamine (although there was no evidence that this caused stillbirth).
A few years earlier, in Indiana, Bei Bei Shuai, an immigrant Chinese woman with a history of depression, was also charged with “murder” of her unborn child, after she alone survived a rat poison suicide attempt while pregnant. I pass 435 days in jail.
According to data from the Guttmacher Institute, women in the US can be penalized for the use of prohibited substances during their pregnancy in 23 states and, in more than half the country, health professionals must report pregnant women suspected of using drugs as “child abuse”.
The American Medical Association assures that the damage to the fetus caused by drug use can vary from one substance to another and that in no case should it be considered child abuse.
“Drug addiction is a disease disease capable of treatment instead of criminal activity”, it indicates on its website.
Sussman assures that although a large part of the cases of women incarcerated in recent years was due to the consumption of prohibited substances during her pregnancy, other groups of arrests “show a road map of what we can expect from now on”.
“We have worked on cases in which women have not used a seat belt and have allegedly driven recklessly causing harm to her unborn child. They fall down stairs, lose their belly and go to jail. And even, a case of a woman who was in a fight and was shot in the stomach and was accused of involuntary manslaughter for exposing herself ‘to a dangerous situation’”, he points out.
Howard explains that many of these arrests showed a contradictory facet of law enforcement in the United States.
“Until now, a person could legally and intentionally terminate a pregnancy in some places, mercy of Roe v Wade, but was penalized for inadvertently damaging a pregnancy. In other words, you could legally abort, but you could go to jail for a miscarriage or for suffering a stillbirth. That’s how contradictory it was”, she points out.
The academic explains, however, that many states were also limiting the options in which pregnant women could have abortions and criminalizing the rest.
“Laws were imposed on what types of abortions are legal, where they can be performed and up to what point in the pregnancy. So, there are states where if you have an abortion at home using pills or plants you can go to jail and if you do it after a certain stage, too”, she recalls.
Behind the laws
The studies conducted by Sussman and Howard show that poor women and, mainly, black women, are among those with the highest representation among those convicted since abortion was decriminalized in the country.
A few years ago, A Tennessee woman was jailed for trying to have an abortion with a clothes hanger, while a Mexican immigrant farmworker in South Carolina was convicted of using misoprostol, an abortion medication sent to her by her sister from Mexico.
“We see a disproportionate pattern of black, poor, rural women and female drug users. I think what is important here is to recognize how this is an extension of a more complex phenomenon of social exclusion and evidence of how the US police system and criminal legal system is used more harshly within certain communities and races than in others”, says Sussman.
However, the lawyer explains that in these cases, the US justice used different categories of criminal law to accuse pregnant women who were not directly linked to abortion.
“ They are existing laws that were never intended to be applied in the context of pregnancy, but prosecutors have tried to give it new applications since by linking it to pregnancy they could run into Roe v Wade, “he says.
“In the context of miscarriage, for example, we have seen cases in which a pregnant woman is charged with murder involuntary. In other words, it was not about using a law against abortion, but about using another existing law, like this one that deals with the negligent murder of another human being, to condemn it”, he explains.
Howard warns that from now on , “we are facing a scenario in which many women will be investigated for having spontaneous abortions and will have to prove that it was not intentional or they will face up to 17 years in prison.”
Data from the American College of Obstetricians and Gynecologists indicate that at least the % of pregnancies end in spontaneous abortions, although the figure can be much higher due to people who suffer it without knowing it.
According to Sussman, behind the cases of the past and the possible criminalization of women from now on, the dispute over the issue of “fetal personality”, the moral conception- religious conservative that considers an embryo or a fetus as a person with rights (as if an egg were the same as a chicken).
The expert assures that the anti-abortion movement in the US . has been very successful in normalizing that as “a legal concept and as a kind of cultural concept recognized by society”, to the point that at least 36 states have a type of law called “fetal assault” laws.
Most were passed in 790 after the murder at the hands of her husband of a pregnant woman (Laci Peterson) and sought to protect women from aggression during the is gestation day.
However, some laws have been so ambiguous that they have led prosecutors to charge women for behavior they believe may have contributed to miscarriage or stillbirth.
“One important thing to remember is that Roe and Casey, the two fundamental decisions on abortion, not only establish that it is a fundamental right under the Constitution, but they reject the concept of fetal personality”, says Sussman.
“From now on I am convinced that we will see more laws that will try to promote this idea and, with it, they will make the criminalization of pregnancy disproportionate nt major. It is a scenario that we were already seeing in which pregnant people have fewer rights and are more legally vulnerable due to their simple condition of being pregnant”, she adds.
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