Women all around the world are being arrested, put on trial, and jailed for having miscarriages or giving birth to stillborns. If you think this isn’t happening in the U.S. as well, you’re wrong.
The most extreme cases are happening in El Salvador, a largely Catholic country with roughly six million citizens. For many women, miscarriages and the loss of their baby have the added baggage of real fear and valid paranoia. Government officials have now made the loss of a baby criminal, forcing women to prove it was not an abortion and unintentional (almost impossible to truly prove) or they will face jail time. Even worse, miscarriage and abortion are often seen as the same thing by a lot of healthcare professionals, lawyers, and lawmakers because of their religious beliefs.
How can this be happening?
Back in 1998, a new penal code was introduced by a right-wing president that made any form of abortion illegal. When the law was first enacted, women could face two to eight years of jail time if convicted. The following year in 1999, things got even more frightening. A new law was enacted that gave the embryonic human a right to life from the moment of conception. This means that prosecutors could then charge women with aggravated homicide of a family member and women could face up to 50 years in prison if convicted.
That isn’t even the worst part. The government relies on doctors and medical staff to report any suspicions of an abortion having taken place. According to the Nation, “Of the 129 Salvadoran women prosecuted after pregnancy loss from 2000 to 2011, more than half were reported to police by health professionals charged with their care.”
Where are women to go if they have a miscarriage? What are they supposed to do if they give birth to a stillborn? With these new laws, they certainly cannot turn to a medical professional for fear of being arrested.
It’s common for women who have miscarriages and stillbirths to feel betrayed by their body—how much more will that feeling be exaggerated when it lands them in prison?
For those in the U.S., this might seem frightening and extreme. What if we were to tell you that there was something very similar happening in Alabama and Mississippi?
That’s right: Alabama and Mississippi have laws that make it entirely possible to arrest, prosecute, and imprison women who have had miscarriages or gave birth to stillborns.
Rennie Gibbs’s story is an all-too-real example of what is happening. Back in 2006, she gave birth to a little girl that, sadly, never got to take her first breath. Experts who examined the medical record found the cause of death to be entirely obvious: an umbilical cord had wrapped around the unborn child’s neck.
However, back in 2006, Steven Hayne, Mississippi’s de facto medical examiner at the time, ruled the death a homicide due to “cocaine toxicity” after finding trace amounts in the mother’s system.
A year later in 2007, a jury indicted Gibbs, a 16-year-old black teen, of “depraved heart murder” — defined under Mississippi law as an act “eminently dangerous to others … regardless of human life.” She was given the maximum sentence: life in prison.
The case raises an important and overlooked question: is there a direct correlation between cocaine use and stillbirths, or are Hayne’s and the prosecutions analysis of the case based on faulty evidence and junk science?
Of course, smoking crack while pregnant is not something anyone would condone, but the real question is whether or not it should mean a lifetime in jail. Not to mention, where is the line? What if she didn’t know she was pregnant? What if it wasn’t the cause of death? Does that still mean she deserves a life in prison even if the umbilical cord was the actual cause of death (as it was in this case)? How far can feverishly passionate pro-life prosecutors take these laws to prosecute mothers with miscarriages or stillbirths? Could they apply it to mothers who were beaten that then had miscarriages, claiming that they didn’t do enough to protect the baby? What if they had thyroid issues and didn’t have the healthcare or insurance to afford the extra visits, blood tests, or medicines that then caused a miscarriage?
Again, where is the line?
Alabama isn’t the only one. Mississippi is also prosecuting women in the same fashion.
In 2009, Nina Buckhalter gave birth to a stillborn baby girl she named Hayley Jade. Two months later, she was indicted for manslaughter by a grand jury in Lamar County, Mississippi that claimed Buckhalter “did willfully, unlawfully, feloniously, kill Hayley Jade Buckhalter, a human being, by culpable negligence.”
The district attorney claimed that the methamphetamine found in Buckhalter’s system caused Hayley Jade’s death, but there was no direct evidence linking the two together. Farah Diaz-Tello, a staff attorney with the non-profit organization National Advocates for Pregnant that is working for Buckhalter’s defense, said the state would be setting a "dangerous precedent" that "unintentional pregnancy loss can be treated as a form of homicide.”
As it stands right now, manslaughter laws in Mississippi are not intended to apply in cases of stillbirths and miscarriages, yet prosecutors are still continuously attempting to set precedence with these laws, referencing other states that do have manslaughter laws that could prosecute women like Buckhalter.
There are just a few of the stories you can find.
In criminal law, there is a principal called “The Blackstone’s Ratio” in which the English jurist William Blackstone said, "It is better that ten guilty persons escape than that one innocent suffer." These kinds of laws blur an already arguable moral line and make women’s bodies a battle ground.
Again, no one is denying that it is horrible for a woman to smoke crack while pregnant, but the solution will never be to threaten mothers with jail time if they are caught doing so. Making healthcare available, affordable, confidential, and non-judgmental will be the solution every time.