A pregnant woman tumbles down a flight of stairs and is arrested for attempted feticide. A pregnant woman about to be released from prison is re-incarcerated when the judge learns she is pregnant and HIV-positive. A pregnant woman informs health care workers that she previously used drugs but kicked her habit and is clean. She’s handcuffed, shackled, taken to court and ordered into detention at a drug treatment facility.
All of these incidents happened.
The last one occurred in Wisconsin last summer, leading to the filing of a federal civil rights lawsuit in Milwaukee and helping to inspire two state legislators to offer a trio of bills aimed at protecting the rights of pregnant women.
In mid-March, Democratic state Reps. Chris Taylor and Terese Berceau of Madison introduced the Pregnancy Protection Package, which was not passed in the 2014 session but will be reintroduced next session.
In the headlines when Taylor and Berceau offered the bills was a battle in Texas, where hospital officials had refused to remove 33-year-old Marlise Muñoz from life support because of her pregnancy, even though the woman had been declared brain dead and had previously indicated to her family that she did not want to be kept alive artificially.
One bill, authored by Berceau, would ensure pregnant women’s advanced medical directives are respected.
“Pregnant women are not second-class citizens and deserve the same rights as everyone one else,” Berceau stated. “Major medical decisions, as outlined in advanced directives, are very personal decisions that should be left up to individuals and their families, not politicians.”
A second measure, introduced as Assembly Joint Resolution 111, would affirm “that pregnant women be afforded all the rights of non-pregnant people.”
And the third bill, written by Taylor, would ensure pregnant women who are alleged to have used drugs have the right to counsel before being detained.
This last measure is a response to the forced detention last summer of Alicia Beltran of Jackson. Beltran, seeking prenatal care, told a health-care provider that she had previously used drugs but was clean. Several days later, Beltran was handcuffed in her home, shackled and taken to a holding cell. She was then brought before a judge, where she found her fetus had a court-ordered attorney but she had no counsel.
At the hearing, without testimony from any medical expert, Beltran was ordered to spend 78 days in a drug rehab facility, where, she maintains, she went without adequate health care or prenatal care.
The federal civil rights complaint is pending in the U.S. District Court in Milwaukee.
Beltran is represented by attorney Linda Vanden Heuvel, who has said locking up the woman was not in the interest of a future child and “most certainly tramples the rights of Ms. Beltran, a woman who was not in fact using any controlled substances at the time of her arrest.”
The complaint challenges a 1997 Wisconsin law that “takes away from a pregnant woman virtually every right associated with constitutional personhood — from the most basic right to physical liberty to the right to refuse bad medical advice,” stated Lynn Paltrow, executive director of the National Advocates for Pregnant Women and a co-counsel in the case. “This kind of dangerous, authoritarian state action is exactly what happens when laws give police officers and other state actors the authority to treat fertilized eggs, embryos and fetuses as if they are already completely separate from pregnant women.
The complaint lists a series of violations, including the rights to:
• Physical liberty
• Due-process notice
• Privacy in medical decision-making
• Carry a pregnancy to term
• Privacy in medical and personal information
• Freedom from illegal searches and cruel and unusual punishment
• Equal treatment under the law.
Four states — Wisconsin, Minnesota, Oklahoma and South Dakota — have laws that explicitly permit detaining pregnant women alleged to have used alcohol or drugs, according to NAPW.
On April 29, Republican Gov. Bill Haslam made Tennessee the first state to enact a criminal law explicitly permitting the prosecution of women for their pregnancy outcomes.
“This law is bad medicine for Tennessee families,” said Cherisse Scott, CEO of SisterReach. “It was promoted by prosecutors against the recommendations of medical professionals, (it) permits arrest and incarceration of women who cannot guarantee that their newborn is in perfect health and (it) creates a separate and unequal law for women, allowing their arrest if they are pregnant and struggling with addiction.”
Thousands had called on the governor to veto the legislation, which is in conflict with the more progressive safe harbor law that was enacted to lessen the threat of punishment and encourage pregnant women to seek treatment if needed.
The Tennessee measure is a new breed of law, but since 1973 and the Supreme Court ruling in Roe v. Wade, advocates for pregnant women have documented the use of other measures to arrest, detain and force medical procedures in hundreds of cases involving pregnant women.
On April 18, the Alabama Supreme Court upheld the conviction of Sara Hicks, who gave birth to a healthy baby who tested positive for cocaine in 2008. The court, in an 8-1 decision, affirmed its prior ruling that “child” in Alabama law includes fertilized eggs and that women can be arrested for using a controlled substance while pregnant.
The legislation used to prosecute Hicks, the chemical endangerment law, was passed in 2006 and intended to deter people from bringing children to places where controlled substances are distributed or produced — like meth labs.
Since 2006, more than 100 women have been arrested.
Research shows that policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus and that incarceration or the threat of detention are ineffective in reducing drug or alcohol abuse.
There is a long list of medical and mental health organizations that oppose punishing and prosecuting pregnant women for alleged risky behavior. The list includes:
• The American Medical Association
• American Academy of Pediatrics
• American College of Obstetricians and Gynecologists
• American Public Health Association
• American Nurses Association
• American Society of Addiction Medicine
• March of Dimes
• American Psychiatric Association
• American Psychological Association
• National Perinatal Association
• Association of Maternal and Child Health Programs
• Center for the Future of Children.
Many of the organizations have opposed laws such as those in Wisconsin and Tennessee for more than two decades, arguing such measures not only infringe on women’s rights but also scare women away from medical care, treat addiction as a moral failing and lead women who want to give birth to instead undergo abortion procedures.
“Criminalizing pregnancy outcomes scares women away from prenatal care and drug treatment,” said Farah Diaz-Tello, a staff attorney with National Advocates for Women. “Women who cannot afford private treatment for their addiction and who fear arrest and separation from children they already have feel as though abortion is the only way to keep their current families together.”
Jennifer Roth was among those who campaigned against the Tennessee Pregnancy Criminalization Law. She is the president of All Our Lives, which she described as a “pro-woman, pro-life organization.”
In a letter urging Haslam to veto the measure, Roth wrote, “We fear that the effect of this law will be to discourage vulnerable women from seeking care that would benefit themselves and their babies, and even to provide an incentive for abortion. That doesn’t foster life.”