Lynn Paltrow on Fetal Personhood Laws & the Criminalization of Pregnancy

Web ExclusiveJuly 08, 2019
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Lynn Paltrow, executive director of National Advocates for Pregnant Women, discusses the criminalization of pregnant people, after prosecutors drop manslaughter charges against a woman in Alabama whose pregnancy ended after she was shot in the stomach by a co-worker.

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This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, as we bring you Part 2 of our discussion about the criminalization of pregnant women, after prosecutors dropped manslaughter charges against a pregnant woman in Alabama whose pregnancy ended after she was shot in the stomach by a co-worker. Marshae Jones is a 28-year-old African-American woman. She was charged with manslaughter because the shooting caused her pregnancy to end. Local police accused Jones of starting the fight that led to the shooting in the parking lot of a Dollar General store outside of Birmingham. A grand jury blamed Jones for, quote, “initiating a fight knowing she was five months pregnant,” and dismissed charges against the shooter. This is Jefferson County District Attorney Lynneice Washington speaking during a news conference last week.

LYNNEICE WASHINGTON: I have determined that it is not in the best interest of justice to pursue prosecution of Ms. Jones on the misdemeanor charge for which she was indicted by the grand jury.

AMY GOODMAN: Alabama is one of 38 states to have a fetal homicide law, according to an investigation by ProPublica. The state has prosecuted hundreds of pregnant women for using controlled substances under a 2006 so-called chemical endangerment law. In a tweet on Friday, the National Abortion Federation praised the decision to drop the charges against Jones, but noted, “Hundreds of other arrests of pregnant women have taught us that granting separate rights to fetuses means stripping civil rights from pregnant women.”

Still with us, Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women.

Thanks for staying for Part 2 of our discussion. So, first, start with the comment we just heard from the DA, Lynneice Washington, and how unusual she is.

LYNN PALTROW: Yes. We have to remember that prosecutors are overwhelmingly elected in this country. And when people are thinking about how do we change what’s happening here, it means getting involved with supporting candidates, like Lynneice Washington, who are willing to stand up for justice and fairness from the offices of district attorneys around the country.

She did the right thing. Actually, the manslaughter law in Alabama specifically says that it should not be used to prosecute the pregnant woman herself. And yet that was the charge that was brought by the grand jury and encouraged by the local police department.

AMY GOODMAN: And because of just tremendous outcry, this was all dropped.

LYNN PALTROW: It was a combination of national outcry—we certainly encouraged people to reach out to Lynneice Washington. But I just want people, especially on the coasts, to understand that it was Alabama activists who take the greatest credit; Yellowhammer Fund, that raised money to help get her out, to get Ms. Jones out on bond; the law firm of White Arnold & Dowd, that got a motion to dismiss filed within three days; and by Lynneice Washington, who took a lot of courage to do the right thing and reject the recommendation of the grand jury and talk about fairness to everyone.

AMY GOODMAN: I want to turn to the words of Ebony Jemison, the woman who shot Marshae Jones. She told BuzzFeed News, quote, “I don’t feel she should be charged with manslaughter because she didn’t go upon killing her baby herself. But she should be charged with child endangerment or assault or something like that.” When asked if—now, this is the shooter who’s saying this. When asked if she had a message for the woman who she shot, Jemison said, “I would just say sorry and send my condolences. Because I know it’s not an easy situation to deal with. All I know is if I could go back and change the situation, I would.” But she did think that the woman she shot should be charged with something.

LYNN PALTROW: Right. So, my organization, National Advocates for Pregnant Women, provides pro bono defense for women who are arrested for crimes that would not be—for things that would not be criminal but for pregnancy. So, for example, it’s not a crime to fall down a flight of stairs, unless you’re also pregnant. It’s not a crime—

AMY GOODMAN: Wait. How is it a crime then?

LYNN PALTROW: Well, in Iowa, police thought that a woman who fell down a flight of stairs might have done so intentionally to end her pregnancy, and arrested her for attempted feticide. A national outcry and local activists got them to withdraw that arrest. But we see this across the country. People want to think, for example, that the drug issue is different. None of the criminalized drugs cause permanent damage in the way that people believe, or cause stillbirths. And it is also not a crime across the country to use drugs; it’s a crime to possess drugs. Alabama and other states have arrested hundreds of women based on the fact that they were pregnant and used any drug, including marijuana.

AMY GOODMAN: So, talk about this specifically in Alabama, what the law says.

LYNN PALTROW: So, in 2006, Alabama passed many laws. Two of them were their chemical endangerment of a child law, that was about discouraging adults from taking children to dangerous places like meth labs. That was also the year they passed their fetal homicide law, that defines children to be the unborn from the moment of fertilization. The Legislature was very clear: The chemical endangerment of a child was about adults and children. But prosecutors quickly began to arrest women who were pregnant and used any controlled substance, including those prescribed to them by their physicians. We helped challenge those arrests. It went to the Alabama Supreme Court, where Roy Moore was serving as chief justice.

AMY GOODMAN: Roy Moore, who was accused of molesting underage girls and now ran for Senate, supported by President Trump, and now, apparently, may run again.

LYNN PALTROW: Correct. And he and Judge Parker wrote these extraordinary opinions, which said that, in Alabama, here are all the ways that we recognize fertilized eggs, embryos and fetuses as separate persons, leaving out the part about “and we undermine the status of women and people with the capacity for pregnancy as persons.” And really the only thing that prevents us from arresting all pregnant women is Roe v. Wade. And they laid out how—all of the different laws that should and can be used to overturn Roe v. Wade. And explicitly, Roy Moore called women who had abortions “killers” and cited biblical law for recognizing the inalienable rights of the unborn and the removal, effectively, of all rights from women.

AMY GOODMAN: Back on the chemical issue, on the drug issue, where does marijuana fit into the story, which is legal now in many states?

LYNN PALTROW: Well, it fits in a number of ways. One of the cases documented in ProPublica was a woman who has severe epilepsy. And the prescribed medications for epilepsy actually do cause damage to fetuses. She very much wanted the pregnancy and to have as healthy a baby as possible, so she switched to marijuana, which was helpful in controlling of the epilepsy and did not pose any significant risk to the fetus. Yet she was arrested under the chemical endangerment of a child law. Another woman who took half a Valium when she was under extreme stress, threatened by an abusive boyfriend, to just make it through the night, she was arrested when she gave birth, because she tested positive for that half of a Valium. Women have been arrested for being in methadone treatment receiving methadone.

So, it was an interpretation, a broad interpretation, of the law by the state Supreme Court that fit into everything else that the state was saying and doing, including Amendment 2, that says every single law in Alabama—it’s the policy of Alabama to have all state laws interpreted to recognize and protect the sanctity of unborn life and the rights of unborn children.

AMY GOODMAN: In Part 1 of our discussion, you said fetuses have more rights than children under Alabama law. Explain.

LYNN PALTROW: Well, people like to say, “Well, this is just about giving fetuses equal rights.” The fact is that that theory of the law has also not only been used to arrest hundreds, thousands of women across the country; it’s also been the justification for forced cesarean surgery. In an early case I did, the surgery killed the woman, and the fetus did not survive.

And there’s a current case right here in Staten Island, in New York City, where Northwell Hospital Systems, Staten Island University Hospital, forced a woman, Rinat Dray, to undergo cesarean surgery. They wrote in her records, “Patient has decisional capacity. We are overriding it.” They performed the surgery. They—

AMY GOODMAN: Wait. So, they wanted her to have a cesarean. She wanted natural childbirth?

LYNN PALTROW: She wanted to continue—

AMY GOODMAN: To try to give birth.

LYNN PALTROW: To try. She had a doula sitting next to her. She said, “You’re not presenting—I’m dilating. You’re not presenting me with any information that says the fetus is at risk at this point. Let me continue to try to have a vaginal birth.” It turned out the hospital had a policy that authorized doctors to perform surgery on pregnant women without going to court, if they believed the fetal rights, fetal life was in danger. They wheeled her in. They performed that surgery. They injured her bladder. She has had to bring a private malpractice suit, which she has not won all these years. But the point is that no person has the right to force another person to undergo surgery for their benefit. No person has the right to have their mother arrested because they’re a firefighter or a police officer putting themselves in danger. But when states—

AMY GOODMAN: Oh, so you could be arrested as a police officer if you’re pregnant and you’re on the job, because, like in the case of Marshae—

LYNN PALTROW: Exactly.

AMY GOODMAN: —you could be shot.

LYNN PALTROW: Exactly. You’re putting your unborn child in danger. So, a fetus, however, when states purport to grant fertilized eggs—because that’s what they’re really talking about—separate personhood rights, they have the right to force the pregnant woman to undergo surgery. Once born, they’d have no right, even if they needed their mother’s kidney or their father’s liver or part of it, no power to force them. So, in fact, fetal personhood gives fetuses more rights than any born person. And really, it’s not giving fetuses any rights at all. It’s giving the state power to control, detain, arrest the people who become pregnant.

AMY GOODMAN: Meanwhile, Alabama has the second-highest infant mortality rate in the country, and African-American babies are twice as likely to die as white babies. How does this relate to this discussion?

LYNN PALTROW: Well, in the Marshae Jones case, the state—the grand jury and the state was saying she had an individual obligation to ensure the safety of her fetus. You have a state that refuses to protect the health and safety of any of its citizens, including pregnant women. By that, I mean they haven’t expanded Medicaid. They’ve banned abortion in the state. It’s unavailable in virtually every county but one in the entire state. And not only that, because we do want to make things very simple and separate, many, many hospitals have closed across the rural parts of Alabama. So, if you are a woman who wants to continue your pregnancy to term, you can’t get OB-GYN care. You have to drive hours and hours to get OB-GYN care or deliver with a—in a hospital. And there have been limitations on the midwifery practice, so you can’t even get that support.

So, it’s a state where black maternal mortality is high. Black infant mortality is high. And the state has effectively abandoned pregnant women, in terms of whatever their health needs are, and turning around and saying, “The only person who’s responsible for the well-being of our children is the pregnant woman herself. She is the greatest risk to the fetal life, and we will arrest her if she cannot ensure her own safety without the help of the government.”

AMY GOODMAN: Talk about Medicaid.

LYNN PALTROW: Well, there’s no expansion. It’s one of the states that will not expand Medicaid.

AMY GOODMAN: And that means?

LYNN PALTROW: And that means that low-income people can’t get the healthcare they need. And—

AMY GOODMAN: You mean the federal government would pay 100% at the beginning for the expansion of Medicaid, but a number of states said no. Because?

LYNN PALTROW: Because they don’t want to participate, because they were opposed to Obamacare. It was part of the larger politic. And because I think they do want to keep their people, the people in their state, in a constant state of distress and ill health, so the state has more power over them. And it lets in a sense of hopelessness and a sense of the only people who can help us are each other. And it means that things like drug treatment is not funded by the state, healthcare around serious illnesses are not funded, and people can’t get the care they need around pregnancy. So, it’s not just about abortion. It’s about the people who have the capacity for pregnancy and all of the healthcare they need.

AMY GOODMAN: We’re talking to Lynn Paltrow, founder and executive director of National Advocates for Pregnant Women. You know about a number of cases you’re involved with, but I wanted to ask you about a case that got quite a bit of attention, the Purvi Patel case in Indiana, who was sentenced in 2015 to 20 years in prison for what she says was a miscarriage. She was ultimately freed in 2016 after her conviction was overturned.

LYNN PALTROW: Well, it’s one of the many cases National Advocates for Pregnant Women has worked on. As the case developed and the facts emerged, she was actually being charged with feticide and criminal neglect of a child, because she had obtained safe medications for ending a pregnancy. She had taken them very late in her pregnancy. She was being arrested, and eventually convicted, for having an abortion. As a result of criminal defense work and national advocacy, the feticide charge was dropped, but they upheld a neglect of a child based on the claim that the fetus was born alive and she didn’t call EMS instantaneously, which would have made no difference.

But the fact is that women across the country have been arrested for manslaughter and other crimes for experiencing miscarriages and stillbirths. That’s not a hypothetical; that’s a current fact. If Roe v. Wade is overturned, every woman who experiences a pregnancy loss—and 15 to 20% of all pregnancies end in miscarriage—all of those women can be subject to arrest and state surveillance.

And I want to add that from—if we personify fertilized eggs, embryos and fetuses, from their perspective, by becoming pregnant, a woman puts their life in danger. So, it’s a very clever mechanism for defaming, demeaning and lowering the status of women and ensuring one of the things that Trump has promised his base, which is white male supremacy.

AMY GOODMAN: Talk about some other cases.

LYNN PALTROW: Well, people like to think that these things only happen other places, but they’ve happened in New York, for example, a case on Long Island in which a woman was in a serious car accident. She was late in her pregnancy. She was charged with manslaughter, involving the deaths of two people in the other car that she had a head-on collision with and the loss of her pregnancy. She was only convicted for the loss of her pregnancy. And fortunately, with our work, the highest court in New York said, “You can’t do this. You cannot punish a woman, you cannot hold a woman legally responsible for the outcome of her pregnancy, through manslaughter law.”

We also have the case of the Northwell Hospital System, a hospital that forced Rinat Dray to have cesarean surgery, again, using the claim of separate rights for fertilized eggs, embryos and fetuses. The fetal personhood claim is inseparable now from any piece of legislation that purports to just focus on abortion. Alabama’s anti-abortion law, that bans all abortion, has no exception for rape and incest, includes a declaration that the word “child” and “person” includes the unborn from the moment of fertilization. And that should be heard as: There is language in all of this legislation that says we are taking away the civil and human rights of pregnant women.

AMY GOODMAN: You’ve written about the case of Shirley Wheeler, which was pre-Roe, 1971. Talk about her.

LYNN PALTROW: Well, one of the claims by the anti-abortion movement is “Don’t worry, we’ll never arrest the pregnant woman herself. They’re just victims. We’re only focusing on the doctors.” And they further make the claim that no woman before Roe v. Wade was ever arrested. And the fact is, Shirley Wheeler, a white woman in Florida, was arrested for having an illegal abortion and was convicted of manslaughter. So, the claim that no woman was arrested before Roe is simply false. And that we see in Alabama, Alabama’s Supreme Court judges have said, “If Roe is overturned, we will arrest women for the crime—well, for all sorts of crimes, including murder.” So, this isn’t, again, hypothetical. This is the future we have, if people, whether they define themselves as pro-life or pro-choice, don’t understand that no person’s health, no pregnant person’s health, is safe if police can participate in prenatal care, delivery or the outcome of any pregnancy.

AMY GOODMAN: Why did you decide to form your group, National Advocates for Pregnant Women?

LYNN PALTROW: I started out defending the right to choose abortion, which we still defend. But I started getting the cases where anti-abortion arguments, the very same arguments—fetuses have a right to life, fetuses are persons—were being used to hurt women who had no intention of ending their pregnancies, and in fact many of them very much opposed abortion—so, a woman who was forced to have cesarean surgery and, as a result, died, judge knowing that performing the surgery could kill her. And a first arrest case I worked on was a woman in California. There was some claim of drug use, but in fact there were no drugs involved. Her crimes were having intercourse with her husband on the morning of the day of delivery and not getting to the hospital quickly enough when she experienced severe bleeding. Prosecutors said she subjected herself to the rigors of sexual intercourse, and tried to proceed with criminal charges against her. So, those were my early cases.

And the realization that 60% of women who have abortions are already mothers. There are not two kinds of women: the kind that have abortion and the kind that have babies. They’re all the same women, just at different moments of their lives. And many of them experience miscarriages and stillbirths. We are all together in this. And the fight is about civil rights, human rights, equal rights for the people who can get pregnant.

AMY GOODMAN: And speaking about equal rights, there’s also trans men who can be pregnant.

LYNN PALTROW: Absolutely. So, there are trans men who do get pregnant. Fortunately, of all of the harms they experience and stigma and everything else, we have not, fortunately, had a case involving arrests relating to pregnancy. But given the path we’re going on, pregnancy turns things that otherwise are not criminal, as I said, like falling down a flight of stairs and not getting to the hospital quickly enough on the day of delivery, into crimes. And what we want to do is ensure any person, of any gender identity, that they need not fear arrest because they became pregnant, because of an outcome of pregnancy, whether that’s an abortion, birth or a miscarriage. There is no role for policing of pregnancy.

AMY GOODMAN: Lynn Paltrow is founder and executive director of National Advocates for Pregnant Women. To see Part 1 of our discussion, go to democracynow.org. I’m Amy Goodman. Thanks so much for joining us.

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