When Pregnancy Leads to a Prison Term
By Lynn M. Paltrow
For decades, anti-abortion leaders and organizations in the United States have claimed that their goal is to protect pregnant women, not punish them. But recent arrests—and in some cases, convictions—suggest otherwise.
Peer-reviewed research that I coauthored with Jeanne Flavin, PhD, a Fordham University professor of sociology and president of the National Advocates for Pregnant Women’s board of directors, definitively establishes that hundreds of laws designed to prevent women from accessing abortion services—as well as other measures, such as feticide laws, promoted by anti-abortion organizations—are being used to justify the arrests of pregnant women.
The arrests documented in the study (from 1973 to 2005) include women who have had or who have attempted to have abortions, women who have experienced miscarriages and stillbirths, women who have gone to term and given birth to healthy babies, and women who have disagreed with doctors’ advice about when, how, and where to give birth. Law enforcement officials have disproportionately targeted low-income women and women of color for these arrests and equivalent deprivations of liberty.
Anti-abortion organizations have particularly claimed that their efforts would not lead to punishment of women who have an abortion. Here, however, are three recent cases in which U.S. states are seeking not to protect but to punish women accused of attempting or having an abortion at home.
In July 2013, Purvi Patel arrived at the emergency room of St. Joseph’s Hospital in Mishawaka, Indiana, bleeding and seeking help. This Indian American woman eventually told health care workers that she had miscarried, but did not bring the fetal remains with her; she had disposed of them in a trash bin. Police found the remains, and despite having no valid scientific evidence that the fetus had been born alive, Patel was arrested on the charge of “neglect of a dependent.”
About a month later, county prosecutors added the charge of “feticide” based on text messages Patel had allegedly sent to a friend indicating that she had obtained and taken two drugs from Hong Kong in an attempt to end her pregnancy. Although Indiana’s feticide law was passed to punish people who cause harm to pregnant women, the prosecutor insisted that it could also be used as an abortion criminalization law to punish women who have, or even attempt to have, an abortion at home.
The judge agreed with the prosecutor and allowed Patel to be tried on both the feticide and neglect of a dependent charges. She was convicted, and on May 1, 2015, sentenced to 41 years for both crimes. Patel will serve 20 of the 41 years in prison if her appeal does not succeed. Last week the international human rights organization Women’s Link Worldwide announced that the case against Purvi Patel has won the 2015 Golden Bludgeon Award for its extreme gender injustice.
In Georgia, Kenlissia Jones, an African American woman, was arrested and held without bond on the charge of “malice murder,” based on the claim that by using misoprostol (brand name Cytotec) in an effort to have an abortion at home, she had caused the death of her fetus.
Following intense media attention, the Dougherty County prosecutor concluded that there was in fact no legal authority in Georgia for charging a pregnant woman with the crime of murder for having terminated her own pregnancy. This, however, was after Jones had to endure the trauma of an arrest, incarceration, and the profound violation of her rights to medical and personal privacy. Although she was released from jail and the murder charge has been dropped, Jones still faces a misdemeanor charge of “possession of a dangerous drug.”
As a matter of medicine, misoprostol is not properly understood to be a “dangerous” drug. The World Health Organization and medical research establish that this medication is used safely around the world for a wide variety of obstetric and gynecological health care needs, including treatment of postpartum hemorrhage and safe termination of pregnancy.
In Arkansas, local law enforcement allege that Anne Bynum took a number of pills to induce an abortion. According to news reports, a couple of days later her pregnancy ended with the delivery of a stillborn fetus while she was alone. Investigators say that several hours after that she went to the hospital asking to see a doctor. She brought the fetal remains with her. Bynum was arrested five days later on charges of concealing a birth, a class D felony punishable with up to six years in prison and a fine of up to $10,000, and abuse of a corpse, a class C felony punishable by up to 10 years in prison and a fine of up to $10,000.
While abortion ostensibly remains legal in the United States, hundreds of anti-abortion measures and decades of propaganda equating abortion with murder increasingly make it possible to view pregnant women who have abortions as criminals.
And, as the Bynum case makes clear, once the women are viewed as criminals, there are innumerable laws prosecutors can choose from to punish those who have abortions. Women who have gone to term after having used alcohol or illicit drugs have been arrested for child abuse, assault with a deadly weapon, and delivery of drugs (through the umbilical cord) to a minor. Women who have experienced miscarriages and stillbirths—from suicide attempts, infections, or causes blamed on drug use—have been charged with various forms of homicide.
Public health, fairness to pregnant women, and fundamental principles of human rights and dignity, however, prohibit the use of state power to arrest and punish women for being pregnant or for the outcomes of their pregnancies. That is why the organization I founded, National Advocates for Pregnant Women, will be working hard with allies in the United States and around the world to help Ms. Patel, Ms. Jones, and Ms. Bynum win their cases.
National Advocates for Pregnant Women is a grantee of the Open Society Foundations.