Pregnant Women and Mothers Are Being Criminalized By Their Care Providers

Under the guise of protecting children, American law makes motherhood even harder.

Linda C. Fentiman March 16, 2017

Medical care providers are increasingly acting like arms of the police. (Paul Sullivan / Flickr)

This sto­ry was orig­i­nal­ly pub­lished on Alter​net​.org.

As much as we might like to believe that the biases evaporate in medical settings, the truth is that doctors and care providers harbor the very same ones that persist in the public at large.

These days Chris­tine Tay­lor prob­a­bly thinks twice before con­fid­ing in med­ical per­son­nel. In 2010, when Tay­lor was 22 and preg­nant, she fell down a flight of stairs and sought treat­ment at an Iowa hos­pi­tal. Dur­ing her phys­i­cal exam she con­fid­ed to hos­pi­tal staff that she felt ambiva­lent about being preg­nant. Her hus­band had recent­ly aban­doned her and her oth­er two chil­dren, leav­ing her with­out fam­i­ly or friends in Iowa. Strug­gling and with­out sup­port, Taylor’s feel­ings were under­stand­able, but if she felt relief for hav­ing shared them it wouldn’t last long.

Although the fall did not appear to harm the fetus hos­pi­tal work­ers alert­ed the police to Taylor’s admis­sion. She was ques­tioned, arrest­ed, and spent two days in jail while her young chil­dren were left alone. Pros­e­cu­tors ini­tial­ly con­sid­ered charg­ing her with attempt­ed feti­cide, defined as an inten­tion­al effort to ter­mi­nate preg­nan­cy after the end of the sec­ond trimester, but backed off when they dis­cov­ered that she hadn’t passed the six-month mark.

While this case may seem like an out­lier, it is actu­al­ly rep­re­sen­ta­tive of an alarm­ing trend — doc­tors and med­ical per­son­nel col­lab­o­rat­ing with police and pros­e­cu­tors in the crim­i­nal­iza­tion of preg­nant women and moth­ers. That same year, 2010, also saw the more high­ly pub­li­cized arrest of Bei Bei Shuai, an Indi­ana woman, for mur­der and attempt­ed feti­cide after hos­pi­tal per­son­nel, who had treat­ed her for a sui­cide attempt, con­tact­ed the author­i­ties after the death of her pre­ma­ture daugh­ter, who was deliv­ered sev­en weeks early.

As a legal schol­ar spe­cial­iz­ing in health care law I’ve spent much of my career look­ing at the ways in which Amer­i­can law [mis]treats moth­ers and preg­nant women in the name of pro­tect­ing chil­dren. Now, whether dri­ven by their own bias­es, fear of mal­prac­tice suits, or a lin­ger­ing pater­nal­ism, doc­tors and oth­er health pro­fes­sion­als have increas­ing­ly become con­duits to law enforcement.

While the laws that prompt med­ical per­son­nel to pick up the phone to the police may be neu­tral in their lan­guage their appli­ca­tion is far from even-hand­ed. Women of col­or and poor women are sig­nif­i­cant­ly more like­ly to come under sus­pi­cion from their care providers than their whiter and wealth­i­er peers. They are par­tic­u­lar­ly vul­ner­a­ble to pros­e­cu­tion and legal inter­ven­tion for drug use, even though white women use drugs at the same rate as women of color.

In one of the most noto­ri­ous cas­es, a nurse at Charleston City Hos­pi­tal, whose mater­ni­ty facil­i­ty served main­ly poor women of col­or in South Car­oli­na, worked with local dis­trict attor­ney Charles Con­don to devise a covert pro­gram to test preg­nant women’s urine for drug use. Under this pol­i­cy, all pos­i­tive drug tests were turned over to the police and local pros­e­cu­tors. This went on for over a decade before the Supreme Court ordered it end­ed in 2001 in Fer­gu­son v. City of Charleston, S.C.

Halfway across the coun­try in Wis­con­sin a preg­nant Ali­cia Bel­tran made head­lines in 2013 when she was invol­un­tar­i­ly com­mit­ted after she con­fid­ed pri­or drug use to a physician’s assis­tant from whom she was seek­ing pre­na­tal care. Bel­tran, who was 12 weeks preg­nant, acknowl­edged her pre­vi­ous depen­dence on Per­co­cet, a pre­scrip­tion painkiller, but stat­ed that she had weaned her­self off it by using anoth­er drug, Sub­ox­one. The physician’s assis­tant rec­om­mend­ed that she con­tin­ue the use of Sub­ox­one, but she declined to do so because she was already drug free, a claim that her drug tests sup­port­ed. Two weeks lat­er Bel­tran was arrest­ed, hand­cuffed and held in jail before receiv­ing a hear­ing in front of a fam­i­ly court com­mis­sion­er. She was denied a lawyer to rep­re­sent her, despite the fact that the dis­trict attorney’s office was rep­re­sent­ing the local child pro­tec­tive ser­vices agency and a sep­a­rate guardian had been appoint­ed to rep­re­sent the fetus. The fam­i­ly court com­mis­sion­er ordered Bel­tran to be con­fined against her will in an inpa­tient drug treat­ment facil­i­ty two hours from her home. She remained there for 78 days and lost her job as a result.

To under­stand why care providers are increas­ing­ly act­ing like arms of the police we must grasp how ten­den­cies in both med­i­cine and law have con­verged to make the doc­tor-patient rela­tion­ship — which should be one of the safest and most invi­o­lable — fraught with dan­ger for preg­nant women and mothers.

Dri­ven by a not-so-veiled agen­da to reverse Roe v. Wade, pros­e­cu­tors and leg­is­la­tors have made great strides in grant­i­ng legal rights to the fetus, which have over­rid­den those of moth­ers. Across the Unit­ed States preg­nant women have been pros­e­cut­ed for homi­cide based on scant evi­dence for every­thing from refus­ing to have a cesare­an sec­tion, deliv­er­ing a baby at home with­out a physician’s assis­tance, and using ille­gal drugs. More than 30 states make the use of alco­hol or ille­gal drugs while preg­nant grounds for civ­il com­mit­ment. In addi­tion, a preg­nant woman’s right to accept or deny med­ical care is increas­ing­ly over­rid­den in favor of fetal rights.” In more than half the states a woman’s advance med­ical direc­tive is unen­force­able while she is pregnant.

A water­shed event in the mis­sion to estab­lish per­son­hood for fetus­es occurred in 1999. That’s when anoth­er South Car­oli­na dis­trict attor­ney suc­cess­ful­ly pros­e­cut­ed Regi­na McK­night for mur­der. McK­night, a young, home­less and men­tal­ly impaired African-Amer­i­can woman deliv­ered a still­born baby after using cocaine dur­ing her preg­nan­cy. While the sci­ence on the effect of ille­gal drugs, such as cocaine or hero­in, on a devel­op­ing fetus is far from con­clu­sive, the pros­e­cu­tors pounced on this to make a case that McK­night was guilty of mur­der because of behav­ior she engaged in while preg­nant. She was sen­tenced to 20 years in prison, and the con­vic­tion was affirmed by the South Car­oli­na Supreme Court. McK­night sig­naled a dra­mat­ic shift in the crim­i­nal land­scape and zeal­ous pros­e­cu­tors took full mea­sure of it. Charles Con­don, who by then was state attor­ney gen­er­al, crowed: Today, South Carolina’s unborn chil­dren have a much bet­ter chance at a long, hap­py life than they did yesterday.”

This uptick in pros­e­cu­tion and the con­fla­tion of a child with a fetus has not gone unno­ticed by the med­ical pro­fes­sion, which is required to report any sus­pi­cion of child abuse to the author­i­ties even if it means breach­ing patient con­fi­den­tial­i­ty. As the fetus has gained rights under the law, preg­nant women have increas­ing­ly become viewed as incu­ba­tors whose auton­o­my is sus­pend­ed or at least min­i­mized through­out preg­nan­cy. Many doc­tors today appear to believe that the fetus, not the moth­er, is the pri­ma­ry patient.

As much as we might like to believe that the bias­es, both con­scious and uncon­scious, that per­vade soci­ety evap­o­rate in med­ical set­tings, the truth is that doc­tors and care providers har­bor the very same ones that per­sist in the pub­lic at large. This is why they are more like­ly to per­ceive risk in cer­tain patients and not oth­ers. Research has shown that women of col­or are no more like­ly to use drugs than white women, yet their doc­tors are more like­ly to per­ceive their behav­ior as a risk to the fetus that demands legal inter­ven­tion. The major­i­ty of women who have been referred to law enforce­ment by care providers have been women of color.

Add to that a lin­ger­ing ten­den­cy toward med­ical pater­nal­ism (“doc­tor knows best”), which is par­tic­u­lar­ly preva­lent in those exchanges that cross racial, gen­der and class lines and you have the mak­ings of a col­lab­o­ra­tion between med­i­cine and law enforce­ment that is wor­ry­ing for any­one who cares about civ­il lib­er­ties and the rights of women.

This trend not only tram­ples on the rights of women to bod­i­ly auton­o­my, but it also under­mines their abil­i­ty to speak can­did­ly with their health providers and, ulti­mate­ly, to receive nec­es­sary care and treat­ment. One thing that has not arisen along­side this will­ing­ness of care providers to turn in women to the author­i­ties is an improve­ment in children’s health. That would require broad-based social and polit­i­cal change that would replace puni­tive mea­sures with uni­ver­sal­ly acces­si­ble pro­grams and poli­cies that sup­port children’s health. Ali­cia Bel­tran and Chris­tine Tay­lor had the right to expect con­fi­den­tial­i­ty, com­pas­sion and appro­pri­ate med­ical treat­ment from the care providers with­out fear of legal reprisal. So does every oth­er woman. 

Lin­da C. Fen­ti­man is Pro­fes­sor at the Elis­a­beth Haub Law School at Pace Uni­ver­si­ty. She is the author of Blam­ing Moth­ers: Amer­i­can Law and the Risks to Children’s Health (NYU Press, March 2017, hardcover).
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