By ERWIN FREED
Brittney Poolaw, a 21-year-old Indigenous woman, is the most recent high-profile victim of anti-women reproductive policies in the United States. In October, Poolaw was convicted by the state of Oklahoma on charges of first-degree manslaughter with a sentence of four years in prison. The “crime” was having a miscarriage in her fourth month of pregnancy at the age of 19 in January 2020. According to Oxygen News, 57 women have been arrested for miscarriage in Oklahoma and over 1200 in the United States since 2006.
Capitalism demands that the ruling class have as close to absolute control over working people’s bodies and lives as possible. That entails strict policing by the state of reproductive capacities, especially for women and queer people. Laws criminalizing miscarriage and stillbirth (a pregnancy terminated after 20 weeks) are especially sharp demonstrations of this fact.
Planned Parenthood explains that “1 in 4 pregnancies ends in miscarriage before 20 weeks. Many people miscarry before they even know they are pregnant. The most common causes of miscarriage are immune system issues, hormonal abnormalities, clotting problems, medical conditions (polycystic ovarian syndrome, diabetes, thyroid issues, etc.), womb or cervix issues, chromosomal abnormalities, and severe infections that lead to high fever. In most cases, the pregnant person did absolutely nothing to cause the miscarriage.”nIn fact, up to 50% of all pregnancies may end in miscarriage.
A legal framework has been constructed by U.S. capitalism that faults pregnant people for miscarriages and stillbirths. Thirty-eight states have so-called “fetal harm” laws on the books that create special charges on the premise that a fetus is a “person.” Of these, at least eight allow for prosecuting the pregnant person for “fetal homicide.” Similarly, a 2014 article in the Indiana Law Journal remarks that 17 states “consider substance abuse during pregnancy child abuse for purposes of their civil child welfare statutes, and four states … consider it grounds for civil commitment. Additionally, when drug abuse is suspected, several states require health professionals to report to the state, test for prenatal drug exposure, or both.
All of these laws are a direct product of the immense expansion of the prison industrial complex begun in the 1960s and accelerated through the next decades. Often, the original justifications for “fetal assault” laws were supposedly to bring greater retribution to men who attacked women—especially in cases of domestic violence—but they have quickly been turned into their opposite, providing legal grounds for criminalizing pregnancy.
One particularly well known victim of these statutes is Bei Bei Shuai, a Chinese immigrant who spent more than 420 days in an Indiana jail for having a stillbirth with a “massive brain hemorrhage” in 2010 following a suicide attempt. According to the above mentioned law journal article, “No individual who has survived a recent suicide attempt has been threatened with possible criminal penalties greater than those faced by … Bei Bei Shuai.” Laws criminalizing suicide attempts have been virtually totally eliminated due to a common understanding that they make an already bad situation worse from both a personal and public health standpoint.
While the state prosecutes pregnant people for “endangering” themselves and/or the fetus they carry, the number one cause of death among pregnant women (statistics do not appear to be available for pregnant people generally) is murder. Femicide is a major problem everywhere in the world and is exacerbated in the United States by the conditions of extreme poverty and dependence on support networks which often contain abusive men, partners or otherwise. This system is enforced by the state’s material emphasis on the nuclear family.
Danger to all
“[T]he nation’s leading medical associations, including the American Medical Association, the American Academy of Pediatrics, and the American Public Health Association, have all opposed punitive measures against pregnant women who use drugs. Their opposition is due in part to their understanding that such measures will deter women from accessing much needed prenatal care and that the absence of such care certainly will have deleterious consequences for both maternal and fetal health” (April L. Cherry, “The Detention, Confinement, and Incarceration of Pregnant Women for the Benefit of Fetal Health,” 2007).
Fetal personhood laws are another side of the general attack on reproductive rights that connects strictly “biological” definitions of gender and the ongoing rollback of abortion access. All of these government policies result from the anti-women and anti-queer dynamics that capitalism generates and upholds. There is no permanent solution for reproductive justice under this system.
The criminalization of pregnancy places the “life” of a fetus—or even embryo—above that of the person carrying it. In this reactionary model, a pregnant person—viewed exclusively as a cis woman—has the exclusive duty of protecting their potential offspring. All external factors—e.g., environmental toxicity, stress from working while pregnant, systemic racism, etc.—are ignored and any harm that comes to the collection of cells sitting in a womb is legally the mother’s fault.
Along these lines, because the miscarriage or stillbirth is a “person,” and therefore subject to laws that make a crime out of “concealing” dead bodies, a situation is created in which “a person could potentially be arrested for waiting even one minute to call the authorities after a pregnancy loss.”
Even worse, fetal personhood laws put the life of pregnant people in very real danger. Miscarriages and stillbirths can require immediate medical attention at the risk of death or serious injury. Fearing that some possible action taken while pregnant can lead to their arrest, criminalizing pregnancy means that the person who just miscarried—already a potentially traumatic experience—may be less likely to go to a doctor. In the dozens of states where abortion access is severely restricted, even if they do get help, it can be severely constrained because of similarities in practices between having a safe miscarriage and abortion.
Referencing a number of studies, a Kaiser Family Foundation report states, “Almost all of the methods used to manage miscarriages and stillbirths are identical to those used in therapeutic abortions. Therefore, the clinical training necessary to safely manage a patient experiencing a pregnancy loss is very similar to that needed to perform abortions. As such, medical residents at religiously affiliated hospitals or in states with restrictive abortion laws may struggle to obtain the necessary training and caseload to become proficient in these skills … When miscarriages present in emergency settings with significant bleeding or infection, it is imperative the clinician has the skills to promptly and safely treat that individual. Little to no training in abortion care may negatively affect providers’ ability to safely manage pregnancy loss.”
Racism and reproductive restrictions
Criminalizing pregnancy shifts the blame of hugely disproportionate miscarriage and stillbirth rates from the racist and destructive economic system to individual actions by oppressed people. As Ava B writes for Planned Parenthood of Arizona, “Black, Latinx, and Native American women have higher rates of miscarriage and stillbirth than non-Hispanic white women, with Black people having the highest rates of stillbirth. This disparity can be due to a number of reasons, mostly that people of color tend to have lower rates of access to necessary prenatal care.”
These are also the communities most at risk for being arrested for “fetal homicide” and similar charges. Since the 1980s there has been an offensive against pregnant people of color encapsulated by the term “crack babies.” A whole universe of pseudo-scientific articles has been used to massively expand the prison industrial complex on the backs of Black and Brown mothers.
The New York Times editorial board summed up this earlier period: “The appetite for stories of black depravity extended to medical journals, which favored shoddy studies showing that cocaine harmed babies over better research refuting that claim. Eugenicists who had long sought justification for sterilizing African-American women found some affirmation for that view when, in 1989, The Washington Post opinion writer Charles Krauthammer noted in a widely syndicated column that black women were spawning ‘a bio-underclass’ of impaired children ‘whose biological inferiority is stamped at birth.’ This disability was said to be ‘irrevocable.’ Mr. Krauthammer went on to say that ‘the dead babies may be the lucky ones.’”
That same embrace of moralism over scientific reality continues today. Brittney Poolaw, whose story opens this article, admitted to methamphetamine use when she spoke with medical professionals following her miscarriage. Yet, Oxygen Crime News reports that “at Poolaw’s one-day trial … the jury was presented with evidence by prosecutors that there was no way to state with certainty that her drug use caused her miscarriage, and both the nurse and the medical examiner noted the fetal abnormalities seen at the autopsy. … The jury convicted her in under three hours. She was sentenced to four years in prison.”
That article also references a study by the Journal of Addiction Medicine, which states, “No consistent teratological effects of in utero [methamphetamine] exposure on the developing human fetus have been identified” and that, in other studies of drug use during pregnancy “the effects of poverty, poor diet, and tobacco use … have been shown to be as harmful or more harmful than the drug use itself.”
End criminalization of pregnancy; legalize abortion!
The criminalization of pregnancy and the deepening attack on abortion rights are two sides of the offensive against reproductive autonomy in the United States. They combine to create a situation where abortion access is virtually impossible for a huge number of working people in this country and a disproportionate number of people of color. In that context, people are driven to dangerous “underground” methods that put themselves in danger. Worse, if there are any problems requiring medical attention, the person seeking an abortion can face criminal charges.
Even in cases where an abortion is not attempted but just contemplated, the state can bring charges. This is exactly what happened to Purvi Patel, who had a stillbirth in 2013 and was convicted for “feticide and neglect of a dependent.” Part of the legal case against Patel was the unproven and dubious claim that the fetus was alive when it was born. The other factor was the prosecutor’s claim that she had purchased abortion-inducing drugs online, despite the fact that there was no indication of their use in a toxicology report of the fetus.
Workers’ organizations need to fight for expanding natal care access and free abortion on demand, instead of expanding restrictions and surveillance on pregnant people. As long as capitalism remains the mode of production governing all aspects of social and personal life, even these basic democratic demands can not be met. Facing spiraling crises bringing down the quality of life for working people in all sectors, capitalism’s go-to “solutions” are almost always carceral, affecting the most oppressed first and foremost.
This needs to be directly confronted at every turn. What is necessary to win real reproductive justice—which includes nationalizing housing and land, aggressively combating the climate crisis, and providing free 24/7 child and elder care for all—is a fighting organization of the working class. The perspective of this organization must wbe to build the largest possible mobilizations around every demand and manifestation of struggle through coalitions that are independent of the capitalists and their state. Ultimately, the only way to permanently turn back the attacks on reproductive rights is to smash the capitalist domination of society and the state that upholds them and for working people to actively construct the new society based on collectivity and solidarity.