The end of Roe c. Wade raises fears of new pregnancy loss lawsuits: NPR
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Chelsea Becker spent 16 months in a California jail awaiting a murder trial after her pregnancy ended in a stillbirth. “I was prepared to stay at least the next 15 years in prison,” she told NPR.
Becker’s arrest in 2019 drew national attention. Against the backdrop of the Supreme Court’s blocking of a Louisiana law that would close nearly all abortion clinics in that state, lawyers warned that Becker’s arrest would allow more lawsuits over the results of the pregnancy.
In less than three years, a radically reconstituted Supreme Court has once again ruled on anti-abortion legislation — this time using a Mississippi law to strike down federally protected abortion rights. And advocates, again, warn that pregnant women will be sued for pregnancy loss – including miscarriages and stillbirths.
“What we’ve seen in cases where we’ve provided legal defense, mothers who experience a stillbirth or miscarriage are blamed for that loss,” Dana Sussman, Acting Executive Director of the National Advocates for Pregnant Women (NAPW) , told NPR.
“Because of the behavior or exposure to an alleged risk of harm to the fetus, they are then charged with causing the pregnancy loss,” Sussman said.
Suing pregnancy loss is nothing new
Pregnancy loss lawsuits have been a quiet but rising trend across the country – so much so that organizations like NAPW have sprung up to provide legal defense to people who have been accused because of pregnancy loss. outcome of their pregnancy. This is how Sussman’s organization came to represent Becker.
In 2013, NAPW partnered with Fordham University to track pregnancy arrests and prosecutions. They just found more than 400 cases where the pregnancy, including pregnancy loss, has been used in a criminal investigation or prosecution from the time the Roe vs. Wade was decided in 1973 until 2005. But from 2006 to 2020, this number has almost quadrupled. While this research is ongoing, Sussman suspects that 200 to 300 cases in this range will involve pregnancy loss.
There is one striking detail that stands out from legal experts: States use laws to target pregnant women that were originally used to protect them.
At least 38 states have laws that make it a crime to harm a fetus, according to the National Conference of State Legislatures. Legal experts say these laws were originally intended to end violence against pregnant women.
These so-called “fetal harm” laws increase penalties for crimes committed against a pregnant person. By treating a fetus as a separate crime victim, these laws recognize crimes against pregnant women as two separate crimes. But, in practice, they have been used to investigate and prosecute different forms of pregnancy loss, including miscarriages, stillbirths, and induced abortions.
Fetal personality, the anti-abortion argument that the fetus deserves all rights and protections as a person, is central to these fetal injury laws and other traditional murder laws applied to pregnant women.
Applying these laws in this way criminalizes the behavior of a pregnant person during her pregnancy. And now that federal abortion protections have been repealed, more people are at risk of criminal prosecution for what they do — or don’t do — while pregnant.
In Becker’s case, the prosecution attributed her stillbirth to her use of methamphetamine during pregnancy. She admittedly struggled with addiction during pregnancy. Although California murder law makes it a crime to kill a fetus in many circumstances, mothers are explicitly exempt from prosecution.
Nonetheless, the state argued that what Becker did during her pregnancy caused her stillbirth. This reasoning is widely rejected in the medical field.
Experts say women are not responsible for their losses
“There is no biological basis for this opinion, especially with methamphetamine,” says Dr. Harvey Kliman, director of the Reproduction and Placenta Research Unit at the Yale School of Medicine.
Kliman blames drug-based pregnancy lawsuits on a misunderstanding about pregnancy.
“You have to have something called biological plausibility,” he says. “And meth doesn’t have a biological pathway to terminate a pregnancy. It just doesn’t.”
He says pregnancy outcomes are determined by the health of the placenta and there is no mechanism by which methamphetamine can damage the placenta.
Twenty percent of pregnancies in the United States end in miscarriage, according to Kliman, who has worked as an expert witness with NAPW on several cases. He says more than 90% of these losses are caused by genetic abnormalities, which often go undiagnosed.
Sussman adds that while the science doesn’t support it, data shows that drug use is the most sued pregnancy loss. But Kliman says that’s because prosecutors and pathologists misinterpret drug use as causation, instead of just association.
Pregnant women are charged with ordinary driving
Yet people who use illicit drugs aren’t the only ones at risk of criminal charges for pregnancy outcomes. Sussman adds that she has worked with people who have been sued for prescription drugs such as legal medical marijuana, painkillers for pre-existing conditions, or Adderall, which is a drug commonly used to treat ADHD.
“We’ve had cases where a woman fell down a flight of stairs while dizzy during pregnancy and was charged with attempted feticide because she suspected she did it on purpose,” Sussman adds.
Yveka Pierre is Senior Litigation Advisor at If/When/How, a reproductive justice nonprofit that provides part-time legal defense to those accused of pregnancy-related crimes.
Pierre brings up the case of Marshae Jones, an Alabama woman who was charged with manslaughter in 2019 after being shot in the stomach while five months pregnant. Police say Jones started the fight that led to the shooting and failed to get out of danger. But the district attorney later dropped the charge after an outpouring of national support.
“When someone wants to punish a group of people, they get very creative in how they try to inflict punishment,” Pierre told NPR. Experts agree that the confusion around punishable actions or inactions creates an untenable legal foundation for pregnant women.
Pierre says that before the right to abortion was reversed in the Dobbs v. Jackson Women’s Health Organization last month’s decision, if prosecutors couldn’t charge someone with an abortion, they would charge them with murder. “But it’s a murder case that’s kind of steeped in the stigma of abortion,” she adds.
“So it’s not an abortion case, but they have to be able to present to the jury that this person considered having an abortion or that this person took pills to end their pregnancy, even if it doesn’t has nothing to do with the facts they need to prove,” says Pierre.
Chasing losses in the Dobbs era
Pregnancy loss lawsuits were already increasing under the protection of Deer, Susman said. Now that the Supreme Court has struck down the constitutional right to abortion, legal experts expect lawsuits to continue to increase.
“Without deer and Casey pushing the line on the fetal person, we are about to see the complete reimagining of criminal and civil codes in this country in states that have already redefined fetuses and fertilized eggs and embryos as children or as than human beings,” says Sussman. “Our data shows 1,700 cases [involving pregnancy loss] since 1973 and a rapid acceleration over the past 15 years.”
Peter agrees that the Dobbs The decision could portend further criminal charges for the pregnancy results, but she stresses that there are resources to help.
“I want people to understand that just because someone is being sued doesn’t mean the law actually supports that suit,” Pierre says, pointing to state constitutions and case law that can work as a defense. She also mentions organizations like hers that help highlight the different laws surrounding pregnancy.
But even if a person is able to get a lawyer and mount a successful defense, it may already be too late.
By the time NAPW successfully convinced a California judge to dismiss the murder charge against Becker, the criminal justice system already had 16 months of his life. But there are other costs associated with fighting the criminal justice system.
Criminalizing—and involving medical providers in the investigation—of pregnancy loss can deter people from seeking medical care. This leads to worse outcomes for pregnant women, mothers and babies, experts say. Sussman points to the Tennessee Fetal Assault Act of 2014, which was allowed to expire two years later. Medical officials have warned that this law discourages women from talking openly about their pregnancy.
Becker says her experience discouraged her from another pregnancy. But she is inspired to advocate for reform measures to ensure no one else endures her experience. In partnership with NAPW, Becker submitted testimony in support of a California bill that would partially remove the requirement that a coroner investigate deaths related to known or suspected abortions.