Jail That Woman! She Has To Give Birth!

The “bad” moms of Queensland, Australia are on notice — a new law is being considered that will put the “rights of the unborn child should be considered ahead of the mother,” according to the Queensland police union. The AAP reports:

“Those children also deserve the right to a full life and health and should not be disadvantaged simply because of the actions or inaction of their birth mother,” [says the leader of the police union] in the submission.

“The state must have the ability to intervene and protect the unborn child when its mother refuses, or is incapable or unwilling to do so.”

The proposal to keep these unborn children safe from the bad habits of their mothers is to put them in “safe houses” where they can be monitored and kept away from risky behaviors. So it’s not like they would actually be put in jail, mind you, just removed from her own residence and put in a place where she can have constant monitoring to correct her actions until the birth of the child.

Totally different.

The proposal should be just as disturbing to those of us in the United States, where the same action is being considered in less obvious form. In the U.S., police have been using “child endangerment” charges to jail women for years, and now legislatures are moving to assist them.

Maria Guerra is one of the latest victims of a growing movement to incarnate pregnant women for not adequately protecting the fetus when pregnant. Guerra, a Memphis woman arrested for DUI, public intoxication and driving without a license also received a more unusual charge – “child endangerment.”  Despite the fact that Guerra was alone in the car and her blood level being below the legal limit, the fact that Guerra said she was four months pregnant led the officer at the scene to arrest under Tennessee Code 39-13-214, a “Viable fetus as victim” statute.

Guerra is only the latest example of pregnant women charged specifically for endangering pregnancies. These cases show an escalating trend towards the imprisonment of “bad mothers,” women who are being additionally penalized for the crime of being pregnant. Much as feticide laws were originally written with the intent of offering an additional avenue for prosecution when crimes occurred that harmed a fetus but were committed by an outsider, now courts are becoming enthralled with the idea of charging the women carrying the fetuses with additional punishments for not adequately putting their potential offspring’s needs before their own desires.

According to a newly released study by the National Advocates for Pregnant Women, “413 criminal and civil cases involving the arrests, detentions, and equivalent deprivations of pregnant women’s physical liberty” have occurred in the first 32 years since Roe v. Wade was ruled, all cases in which were directly driven by the woman involved being pregnant. Executive Director Lynn Paltrow stated, “In almost all of the cases we identified, the arrests and other actions would not have happened but for the fact that the woman was pregnant at the time of the alleged violation of law. And, in almost every case we identified, the person who initiated the action had no direct legal authority for doing so.”

That’s a factor evident in both the cases of Maria Guerra in Tennessee and Amanda Kimborough in Alabama.  Guerra was allegedly charged with child endangerment despite the fact that she told the officer that she was four months pregnant, and in Tennessee endangerment can only be applied to a “viable fetus,” one that would have been at least another month more developed.

Kimborough’s case is much the same.  She told New York Times reporter Ada Calhoun in April that she had only done meth one time during her pregnancy, yet autopsy reports exposure the cause of death when her very premature baby was delivered at just 26 weeks.  Out of fear of potentially facing a life sentence at a jury hearing, an outcome presented as a likely scenario by the county district attorney, Kimborough agreed to a plea deal. In exchange for ten years and a chance to appeal, she pled guilty to child endangerment, setting the ground for an appeals process that would allow the state Supreme Court to officially conclude that there is “widespread legal recognition that unborn children are persons with rights that should be protected by law.” Even more disturbing? The court’s assertion that there does not need to be a “viability line” because viability is a construct completely concocted by Roe v. Wade, and viability does not need to be included in such laws.

The results are both devastating and immediate. Within days of the Alabama Supreme Court ruling, Mississippi Rep. Bubba Carpenter, best known for declaring that if a few women died in backalley abortions if the state’s only clinic closed “but hey, you have to have moral values,” proposed a bill that would require all pregnant women arrested for violations of the uniform controlled substances law to be drug tested, and that a positive test would result in a conviction of child abuse. The state of Missouri offered a similar bill soon after, although they drew a line at only charging the woman if the fetus was 28 weeks gestation – a line that would have left Kimborough free. And Arkansas is preparing one to define a child that can be “abused” as “individual …from the time a fetal heartbeat can be detected.”

“This law is being used for purposes never intended by the legislature,” said Brian White, Kimborough’s attorney, via phone. “We have a member of the legislature who was amicus in the Kimbrough appeal who was clear that targeting pregnant women using legal or illegal substances was never the intent.  The majority of prosecutors did not understand the law to be used against pregnant women.  The Criminal Appeals court said that ‘child’ meant viable fetus.  The Supreme Court says something different: ‘child’ means from conception forward.”

“This is judicial legislation.”

Was Kimborough strong-armed and threatened into a plea deal with the intent of creating a precedent for the courts to rule that women can in fact be held responsible for any failures to produce a perfect end result in a pregnancy? It’s looking more likely every day. First, legislators make it more and more difficult to legally terminate a pregnancy. Next, they write laws criminalizing women who intentionally or unintentionally damage the pregnancy at any point from conception on.  Is the next step writing laws that could jail pregnant women to ensure they don’t harm their children in utero?

Or are they just getting ready to send them to “safe houses” of our own?

image via wikimedia commons

  • Teegs

    I don’t understand the critisism for laws protecting a future child, in the instance that the mother has chosen not to abort.
    If you don’t want it, abort, fine, it’s your body.
    When you choose to bear the child, it also becomes about the fetus’ body and the future child’s development. Why not punish druggie moms, DUI moms, etc? I wouldn’t want those women on the street even if they weren’t pregnant!
    It is disturbing that they are being punished partially as a result of being pregnant. It is more disturbing what they are doing to their child.
    I am 4 months pregnant, I quit smoking cold turkey when I found out, and I am an older sibling to 5 adopted ‘crackbabies’ who will NEVER live normal lives.

  • Jennifer

    I agree with Teegs. This is an obviously biased opinion piece. The women you are referring to in this article are bad mothers who are damaging and potentially murdering their unborn babies. That definitely makes them bad mothers. I don’t see anything wrong with putting them in safehouses to protect themselves and their unborn children. Life begins at conception.

    Most animals have the natural instinct to love and protect their young. Too bad people don’t always have that instinct as well.

    • http://www.danielleelwood.com/ Danielle Elwood

      I completely disagree with you Jennifer. The problem with these laws is the violation of rights when it comes to the mother. If we can start jailing women because they MAY be at risk for a certain kind of behavior, then where will it stop? Will women be forced into these homes and into certain medical choices because a provider THINKS that is the right choice. Will they be jailed for eating deli meats or not taking pre-natal vitamins? Off to a safe home if you fly in your third trimester or eat soft cheese?

      It isn’t that we think women should be able to do drugs or drink when they are pregnant, we think that this is the beginning of a slippery slope of woman’s rights.

      • Rebecca

        Danielle is very right.

  • Bobby

    Here is my question, if a child was removed from a mother because of her drug usage, and the mother gets pregnant again, and says that she is still using drugs. Should that child be taken away for child abuse and neglect? Since her decisions can potentially harm or kill the child. I believe women that continue to disregard her responsibilities to care for her child should be charged with a crime.

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