The Criminalization of the American Pregnancy

On June 26th, Marshae Jones was indicted by a grand jury in Alabama for manslaughter.  The charges stemmed from a miscarriage she had as a result of being shot in the stomach at five months gestation. The grand jury agreed with prosecutors: Marshae Jones was at fault for the death of her fetus because she willfully instigated a fight, a fight that resulted in her being shot and her pregnancy being terminated.  

To be precise, Marshae Jones was shot in the stomach by another individual and charged with the death of her five month fetus because she engaged in an altercation that resulted in her being shot with a firearm. 

While prosecutors initially charged the woman who shot Marshae with manslaughter, the grand jury ultimately determined she acted in self defense and the charge was dismissed.  Insisting someone be held accountable for the death of the fetus, the district attorney in the case then charged Marshae.  

In the majority opinion that asserted Roe v. Wade--the landmark Supreme Court decision that ensured access to abortion in the United States--Justice Harry Blackmun stated, “if this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment.”  This statement laid the groundwork for the efforts by the anti-abortion movement.

Since Roe, the primary goal of the anti-abortion movement (only second to spreading misinformation about the process of abortion and the types of people who get abortions), has centered around pushing fetal personhood laws through state legistlatures. And they have been hugely successful: as of January 2019, fetal personhood laws have been passed in almost every state.

From seemingly benign legislation that issues babies born still birth certificates, to much more complicated laws allowing prosecutors to treat fetuses as victims of crime; these laws have allowed for a meticulous chipping away at Roe and have pushed us closer and closer to giving fetuses the same rights as the women carrying them thus realizing Justice Blackmun’s prediction. 

Since Minnesota became the first state to pass a fetal homicide law in 1986, 37 other states have added similar statutes.  While these laws have largely been used to increase criminal charges against individuals that commit acts of violence against pregnant women, they have also been used against pregnant people themselves.

Marshae’s indictment is a direct result of these initiatives by the right to life movement.  

While Marshae’s case is the latest case to gain viral attention, it is certainly not the first. In 1989, Jennifer Johnson was the first American woman convicted of delivering drugs to her fetus through the umbilical cord. Hundreds of women since, have been prosecuted for endangerment based on their drug use in pregnancy. 

In 2008, Jennifer Jorgensen was in a car accident while 8 months pregnant.  Her baby was delivered via emergency cesarean and died a few short days later.  A jury found her guilty of manslaughter because she had not been wearing a seatbelt, thus causing the death of her daughter. 

In 2010, Bei Bei Shuai was charged with murder after surviving an attempted suicide at eight months pregnant. In 2017, Kelli Renee Driskel was charged with feticide because her baby boy was stillborn after a pregnancy in which she continued to use illegal drugs.  The list goes on.

What these cases have in common is the notion that a pregnant person committed some type of act considered negligent or willfully harmful to the fetus she was carrying. The police lieutenant in Marshae Jones’ case stated, “the investigation showed that the only true victim in this was the unborn baby. It was the mother of the child who initiated and continued the fight which resulted in the death of her own unborn baby.”  The grand jury agreed.

Fetal personhood laws that grant fetuses or embryos (and in some cases, fertilized eggs) the same rights as the pregnant person create a hierarchy of decision making and legal protections.  From doctors and nurses, to prosecutors and police, more often than not, the fetus takes precedence over the mother.  

When pregnant people fear they will be charged with a crime for making a decision that might impact their pregnancy or fetus, they have lost the ability to provide consent and maintain bodily autonomy.

As a labor doula, I see this play out in the labor & delivery room constantly. Doctors and nurses reminding my clients, “your baby is our first priority--your plans come second.  We will do whatever it takes to get this baby born healthy.” 

Recently, I had a client refuse antibiotic treatment during labor for a suspected infection because in the past she had severe allergic reactions to many antibiotics and avoided them across the board.  The hospital persisted in trying to coerce her to consent for treatment and ultimately called child protective services on her because they claimed her refusal endangered the health of her baby. Given my client’s history, she was at risk for anaphalyxsis, a potentially fatal allergic reaction, but the hospital weighed the baby’s health over her own.

As these laws push the point of personhood closer and closer to conception, the decision making for pregnant people that may be experiencing a medical emergency like a miscarriage or premature labor, gets more complicated.  While it is almost impossible to determine the cause of miscarriage or stilbirth, women may neglect to seek medical treatment if they fear they may be held liable for the loss. 

The same week that Marshae was shot, the American Medical Association filed a lawsuit against North Dakota because of a recent law that forces doctors to falsley inform patients that an abortion at any stage of pregnancy ends “the life of a whole, separate, unique living human.”  

In a statement, the AMA argued “the patient-physician relationship is the cornerstone of health care, and depends upon honest, open conversations about all of a patient’s health care options” and that this law “unconstitutionally forces physicians to act as the mouthpiece of the state.”

Even in states that do not have specific requirements for the counselling of patients, physicians may hesitate to provide adequate information on treatment options that may impact a pregnancy even if it is in the pregnant person’s best interest.  Especially in those states where fetal personhood is established in the first trimester, when the risk of miscarriage is highest, physicians may feel compelled to withhold information that could make them liable for fetal demise. 

Meanwhile, in 2019, America’s maternal mortality rate is the worst in the developed world with an estimated 900 women dying annually of pregnancy and childbirth related complications--if we prioritize fetal health above maternal health, clinical outcomes for mothers can only continue to decline.

On July 3rd, prosecutors decided to drop all charges against Marshae.  The horror this woman endured: first being shot, then losing her pregnancy, then being charged for the murder of a baby she very much wanted and intended to carry to term is unimaginable.  That an overzealous prosecutor successfully convinced a grand jury to indict her on manslaughter charges demonstrates a larger shift in the balance between maternal and fetal rights in the United States.  The police, the prosecutor and the jury involved in the case all sought to teach Marshae a lesson. They saw it as their fundamental duty to punish a woman for acting in a way that was unbecoming of a mother.  

Since Roe became law, the anti-abortion movement has successfully changed the narrative in America regarding pregnancy and fetal rights.  They have shifted public opinion away from viewing fetuses as a dependent part of the pregnant body to viewing them as independent, fully formed, unborn or preborn babies (phrases used by the right to life movement that are deeply problematic and inaccurate for a number of reasons).  Pregnant bodies act as hosts for an unborn baby and as hosts they are required to adhere to a strict morality code and provide a hospitable environment in which a fetus can successfully gestate.  

Marshae, Bei Bei, Jennifer and Kelli’s tragedies have been exploited by the anti-abortion movement to further their agenda and in the process, make it easier to criminalize the choices of all pregnant people in America. These cases are the alarming reality of the successful efforts of the right to life movement.  

There are grave implications for the well-being and safety of the roughly six million women that get pregnant in America yearly.  When only four million babies will be born live of these six million pregnancies--some ending in loss and others by abortion--that leave at least two million American women susceptible to the whims of the justice system.  When we treat embryos and fetuses as citizens with full rights, every miscarriage, every termination, every act that could impact the healthy development of the pregnancy can be considered criminal. 

If we don’t stop the right to life movement in their efforts and insist legislators roll back these fetal personhood laws throughout the country, we will lose mothers and pregnant people at an alarming rate to incarceration, disability and death. 

The Language of Let and the Nuance of Obstetrical Violence

My doctor said they won’t let me go past 41 weeks.”

“My midwife said they won’t let me eat—I am only allowed to drink clear liquids in labor.”

“My nurse told me the hospital won’t let me push for more than three hours and I’ll have to have a c-section.

Over and over in prenatal meetings with clients, they tell me the things their doctors and midwives will and will not let them do through their pregnancies and labor.  Because of this, for so many of my clients, my primary role as their doula is not to provide comfort measures and emotional support in labor, but rather to help them understand their rights as patients, to question their care providers, and to empower them to maintain agency over their care.  

In 2018, Broadly published a widely shared article, “There is a Hidden Epidemic of Doctors Abusing Women in Labor, Doulas Say”, and the term “obstetric violence” became mainstream. Prior to that, it was used primarily by birth workers and activists to describe the physical, mental and emotional abuse doctors, midwives and nurses use to coerce and force women to certain ends in their pregnancies and labors. It is widely accepted now that obstetric violence is real and prevalent and must be addressed.

Physically violent and emotionally traumatic cases are the ones most easily recognized as obstetrical violence: a rough cervical exam that continues once the patient has said “stop”; manually stretching, tearing or cutting the perineum without consent; proceeding with a cesarean section despite the patient pleading with doctors to stop because she can feel the incisions being made;  or threatening to call law enforcement or Child Protective Services if a patient is not compliant with some protocol.

But there is this super fine line when it comes to the way care providers use language with pregnant and laboring people that disempowers the patient without overtly coercing or abusing them.  Words like “let” and “allow” or phrases like “you can’t”, “you must”, “we will” are decisive and final. They indicate that “this is the way things are and there is no other way.”

The language of “let” positions medical caregivers, doctors, nurses and midwives in a place of power over the pregnant or laboring person. When a care provider says “we won’t let you do such and such...” it ends the conversation and leaves no room for discussion.  So often my clients feel resigned to these “let” statements as their reality. They feel they have no right to request or push for what they need and want because their doctor has already indicated it’s not allowed.

What’s worse is that the language of “let” can create a culture of subversion in some patients.  When patients do something their doctor indicated they were not allowed to do, they may keep pertinent information from their care providers for fear of reprisal.  This could lead to dangerous situations.

For example, a client’s amniotic sac ruptured at home prior to labor starting.  In prenatal appointments the client’s obstetrician indicated that should this happen, the patient “must report to the hospital immediately to be induced because we won’t let you be ruptured for over 24 hours before baby is born.”  The client did not want to use pitocin under any circumstances and chose to not inform her OB that her membranes ruptured. When after 24 hours she had still not gone into labor, she informed her obstetrician that her water had broken but did not mention when.  When she arrived to the hospital she had a low grade fever and was treated with antibiotics for suspected infection--one of the risks from prolonged rupture. Because of the prolonged rupture and the fever, the baby had to undergo blood tests in the first 24 hours of life and was also closely monitored for signs of infection.

I find it deeply troubling that pregnant people feel the need to hide things from their care providers to get the outcome they hope for.  Care for pregnant and laboring individuals should be a partnership, not an autocracy.

It is telling that the American College of Obstetricians and Gynecologists (ACOG) issued a statement in 2016 saying, “pregnancy is not an exception to the principle that a decisionally capable patient has the right to refuse treatment, even treatment needed to maintain life“ and further that, “obstetrician–gynecologists are discouraged in the strongest possible terms from the use of duress, manipulation, coercion, physical force, or threats, including threats to involve the courts or child protective services, to motivate women toward a specific clinical decision.”  Obstetrical violence is clearly not a problem limited to a few bad seeds.

Moreover, and somewhat more horrifying, obstetrical violence is not limited to male care-providers.  As a doula, I have seen female doctors, midwives and nurses coerce, discourage, belittle, and demean clients and their choices. Women’s health care is deeply rooted in the misogynistic and patriarchal idea that women need to be saved from themselves because their irrational thoughts and hormones do not allow them to make informed decisions, therefore female bodies must be policed.  Further, because a pregnant body is a vessel for a fetus--and fetal rights are, as a whole, moving to supersede women’s rights--care providers take on the role of protecting the fetus over the patient.

#MeToo has forced the conversation of the many nuanced and sometimes subtle ways violence and microaggressions are enacted against women as a whole, and particularly women of color and LGBTQIA individuals. As a society, many of us are now actively engaging in identifying, discussing and challenging not only sexual violence, but emotional, financial, and medical forms of violence, as well.

The language of “let” is often nuanced.  While not always outwardly coercive, it does assert the pregnant or laboring person has little or no agency in the decision making process.  It says, as a medical care provider, “I am in a position of power over your body and under my care you need to be obedient or there will be negative outcomes.” Instead, if physician and patient make informed choices together, rather than in opposition of each other, we could improve medical outcomes and patient safety and satisfaction significantly.  


As a Patient

  1. Ask Questions: If you are pregnant or planning on becoming pregnant, do not just stay with your OBGYN practice because the relationship is there.  Ask about their policies regarding going past your due date; changing positions, monitoring and eating in labor; and anything else that feels important to you. Ask common reasons for inducing or augmenting labor or scheduling a cesarean section prior to labor.  Ask about how hospital policies and protocol may impact your plans. If you are with a group practice meet with everyone in it and ask the same questions over and over. The word “let” should be a trigger word--probe deeper or find a different provider who gives you satisfactory answers.

  2. Practice Due Diligence: Join your local parent list-servs.  Ask about your care provider and the hospital they deliver at. Red flags? Run.  

  3. Know Your Rights:  Every state has a patient’s bill of rights. For example, New York State’s Patient Bill of Rights states that you have the right to: 1. receive complete information about your diagnosis, treatment and prognosis. 2. receive all the information that you need to give informed consent for any proposed procedure or treatment. 3. refuse treatment and be told what effect this may have on your health.  These rights are armor--use it as such.

  4. Consent is Never a Blanket Statement: Many hospitals will have you sign an “informed consent form” when you arrive to the hospital in labor.  Have your birth partner (doula, spouse, friend or otherwise), read the consent form--you may strike or caveat anything you are uncomfortable with.  Regardless of how you sign the form, you are always allowed to revoke consent at any stage for any part of your care.

  5. Hire a Doula: Doulas will often know what you care provider is like and what the  hospital you plan to deliver at is like. We know what protocols and policies you may encounter along the way and help guide you though managing these things.  We can help remind you of your rights, empower you to find your voice, and question your care provider or guide you through switching care providers late in the game--I’ve even helped clients fire a care provider while in labor!

As a Care-Provider

  1. Always Ask for Consent: Before touching, before testing, before administering medicines or doing any procedure--ask!  Yes, it is time consuming but consent changes everything. It protects you and protects the patient.  

  2. Create Dialogue: Don’t assume your patient doesn’t know or doesn’t care what is happening. Talk, explain, be open and receptive to answering questions. Before you do anything ask your patient if they have any questions or concerns.

  3. Avoid Banned Phrases:  The following phrases should be stricken from your vocabulary.

    1. “I am going to..” or “I will just…” before doing something to your patient. This does not allow them opportunity to give informed consent.  Instead ask, “would you feel comfortable if I…?” This allows them a chance to explore their feeling about whatever it is and ask questions.  

    2. “You can/cannot…”,  “you may/may not…”, “we will/won’t let…”, “you are/aren’t allowed…” All of these statements take control from your patient.  They are definitive statements and even if you believe what you are saying you do not have the right to impose limits on your patients.  Rather, try: “I strongly encourage/discourage…” or “It is our policy that…”, followed by an explanation, if necessary.

  4. Support Even if you Disagree: Continue to provide quality support even if you disagree with the choice(s) your patient has made.  You can ask if they would like to know the risks/benefits of the issue at hand. But avoid shaming, bargaining, or pressuring your patient to make a different choice.  Once the decision has been made, showing your patient that you support them builds trust and may ultimately help them agree to what you are suggesting.

  5. Be Kind: Practice empathy and kindness.  Take a step back and remember that ultimately you share the same goals as your patient: to have a healthy baby and a healthy new parent.  What steps can you both take to achieve this goal that feels safe and satisfying to both of you?