Where Laws Intended To Protect Women Are Used Against Them

WHERE LAWS ARE TURNED AGAINST PREGNANT WOMEN While "personhood" laws have been attempted in multiple states, voters and courts have consistently rejected legislation that gives constitutional rights to fertilized eggs, embryos and fetuses. However, many states have recognized fetuses as potential victims of violent crimes. Fetal homicide laws were intended to protect pregnant women from violent acts, and though most laws explicitly state they do not apply to the pregnant woman herself, in some states, the laws have been used to bring charges against women for harming the fetuses they carry, regardless of explicit exemptions. LAWS INTENDED TO PROTECT WOMEN ARE USED AGAINST THEM Top three states in arrests or forced interventions of pregnant women, 1973-2005** Most states have laws that make violence against fetuses a crime, and some provide no exception for the mother of the fetus. Additionally, certain hospitals are much more likely than others to instigate medical interventions or civil child welfare charges against pregnant women, according to one study that looked at 413 cases between 1973 and 2005. Total state cases, 1973-2005 Cases originating from specific hospitals States that recognize fetuses as victims of violent crimes* (37 states) I States that do not recognize fetuses as victims of violent crimes (13 states and D.C.) ID.C. Mo.: 29 69% Truman Medical Center in Kansas City, Mo. S.C.: 93 Fla.: 55 32% Medical Center of South Carolina in Charleston, S.C. 42% Sacred Heart Hospital and Baptist Hospital in Escambia County, Fla. *Includes state criminal statutes that define fetuses as a potential victim of a violent crime. Does not necessarily include every state statute prescribing punishments for violent crimes that result in fetal harm. **Cases were distributed among D.C., some federal jurisdictions, and all states except Delaware, Maine, Minnesota, Rhode Island, Vermont, and West Virginia. Data may not include all cases. Additionally, many decisions made in Native American courts are not published, and are therefore not included. Laws in these states may have changed since surveyed cases. CRIMINAL STATUTES USED FOR SUBSTANCE USE CAN LEAD TO CHILD WELFARE CHARGES, EVEN IF THE FETUS IS UNHARMED UNINTENDED PURPOSES Women have been charged under drug distribution and delivery laws, child abuse or neglect laws, and even state abortion laws, even though none were intended to apply to women's behavior while carrying a pregnancy to term. It's not a crime in any state for a woman to carry a pregnancy to term if she has a drug problem, and no state has a law that makes a woman liable for the outcome of her pregnancy. Still, many states can arrest a woman for child abuse on the basis of positive tests for-or reports of-substance abuse, even when the fetus is unharmed. Cases that brought charges under criminal statutes intended for other purposes, 1973-2005 Percent of cases that had no reported complications or adverse health outcome for the fetus 86% 64% Cases that included charges of: Substance use during When substance use Bolded: States pregnancy considered: suspected, state requires: that allow criminal 51% Child abuse or neglect prosecution of pregnant women under their child abuse codes I Child abuse under civil child-welfare statutes 22% Drug possession or use Reporting 21% Drug distribution or delivery Testing I Grounds for civil commitment 12% Homicide Alabama Montana Nebraska Nevada Alaska POOR, BLACK, SOUTHERN WOMEN MORE LIKELY TO BE ARRESTED Arizona New Hampshire New Jersey Arkansas California Colorado New Mexico Distribution of cases by race and region, Pregnant women represented by public defender Connecticut New York Delaware North Carolina 1973-2005 D.C. North Dakota Black 71% Florida Ohio White Georgia Oklahoma Hawaii Oregon Pennsylvania Most pregnant women arrested in South Carolina, the state with the most cases from 1973 to 2005, were black Other Idaho Illinois Rhode Island Indiana South Carolina 56% lowa South Dakota Black S.C. population Arrests of pregnant women who are black Kansas Tennessee Kentucky Texas Louisiana Utah Maine Vermont Maryland Massachusetts Virginia Washington West Virginia Wisconsin* 22% 15% Michigan 30% Minnesota Mississippi Wyoming TOTAL 17** 3* 74% Missouri 15 4 *In Wisconsin, women who use drugs and alcohol during pregnancy fall under a category of the children's code that allows the state to hold them in treatment without the due process protections afforded by the separate civil commitment law. **Other states may have legitimized arrests through court decisions. Sources: "Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women's Legal Status and Public Health," Journal of Health Politics, Policy and Law, Indiana Law Journal; Guttmacher; Census Burcau; NARAL; National Advocates for Pregnant Women; American Bar Association Journal THE HUFFINGTON POST U.S. South Midwest West/Pacific Northeast