Nonstopdrivel
13 years ago

Outcry in America as pregnant women who lose babies face murder charges
 
Women's rights campaigners see the creeping criminalisation of pregnant women as a new front in the culture wars over abortion

Ed Pilkington in New York
guardian.co.uk, Friday 24 June 2011 18.30 BST

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Across the US, more and more prosecutions are being brought against women who lose their babies. Photograph: Alamy

Rennie Gibbs is accused of murder, but the crime she is alleged to have committed does not sound like an ordinary killing. Yet she faces life in prison in Mississippi over the death of her unborn child.

Gibbs became pregnant aged 15, but lost the baby in December 2006 in a stillbirth when she was 36 weeks into the pregnancy. When prosecutors discovered that she had a cocaine habit – though there is no evidence that drug abuse had anything to do with the baby's death – they charged her with the "depraved-heart murder" of her child, which carries a mandatory life sentence.

Gibbs is the first woman in Mississippi to be charged with murder relating to the loss of her unborn baby. But her case is by no means isolated. Across the US more and more prosecutions are being brought that seek to turn pregnant women into criminals.

"Women are being stripped of their constitutional personhood and subjected to truly cruel laws," said Lynn Paltrow of the campaign National Advocates for Pregnant Women (NAPW). "It's turning pregnant women into a different class of person and removing them of their rights."

Bei Bei Shuai, 34, has spent the past three months in a prison cell in Indianapolis charged with murdering her baby. On 23 December she tried to commit suicide by taking rat poison after her boyfriend abandoned her.

Shuai was rushed to hospital and survived, but she was 33 weeks pregnant and her baby, to whom she gave birth a week after the suicide attempt and whom she called Angel, died after four days. In March Shuai was charged with murder and attempted foeticide and she has been in custody since without the offer of bail.

In Alabama at least 40 cases have been brought under the state's "chemical endangerment" law. Introduced in 2006, the statute was designed to protect children whose parents were cooking methamphetamine in the home and thus putting their children at risk from inhaling the fumes.

Amanda Kimbrough is one of the women who have been ensnared as a result of the law being applied in a wholly different way. During her pregnancy her foetus was diagnosed with possible Down's syndrome and doctors suggested she consider a termination, which Kimbrough declined as she is not in favour of abortion.

The baby was delivered by caesarean section prematurely in April 2008 and died 19 minutes after birth.

Six months later Kimbrough was arrested at home and charged with "chemical endangerment" of her unborn child on the grounds that she had taken drugs during the pregnancy – a claim she has denied.

"That shocked me, it really did," Kimbrough said. "I had lost a child, that was enough."

She now awaits an appeal ruling from the higher courts in Alabama, which if she loses will see her begin a 10-year sentence behind bars. "I'm just living one day at a time, looking after my three other kids," she said. "They say I'm a criminal, how do I answer that? I'm a good mother."

Women's rights campaigners see the creeping criminalisation of pregnant women as a new front in the culture wars over abortion, in which conservative prosecutors are chipping away at hard-won freedoms by stretching protection laws to include foetuses, in some cases from the day of conception. In Gibbs' case defence lawyers have argued before Mississippi's highest court that her prosecution makes no sense. Under Mississippi law it is a crime for any person except the mother to try to cause an abortion.

"If it's not a crime for a mother to intentionally end her pregnancy, how can it be a crime for her to do it unintentionally, whether by taking drugs or smoking or whatever it is," Robert McDuff, a civil rights lawyer asked the state supreme court.

McDuff told the Guardian that he hoped the Gibbs prosecution was an isolated example. "I hope it's not a trend that's going to catch on. To charge a woman with murder because of something she did during pregnancy is really unprecedented and quite extreme."

He pointed out that anti-abortion groups were trying to amend the Mississippi constitution by setting up a state referendum, or ballot initiative, that would widen the definition of a person under the state's bill of rights to include a foetus from the day of conception.

Some 70 organisations across America have come together to file testimonies, known as amicus briefs, in support of Gibbs that protest against her treatment on several levels. One says that to treat "as a murderer a girl who has experienced a stillbirth serves only to increase her suffering".

Another, from a group of psychologists, laments the misunderstanding of addiction that lies behind the indictment. Gibbs did not take cocaine because she had a "depraved heart" or to "harm the foetus but to satisfy an acute psychological and physical need for that particular substance", says the brief.

Perhaps the most persuasive argument put forward in the amicus briefs is that if such prosecutions were designed to protect the unborn child, then they would be utterly counter-productive: "Prosecuting women and girls for continuing [a pregnancy] to term despite a drug addiction encourages them to terminate wanted pregnancies to avoid criminal penalties. The state could not have intended this result when it adopted the homicide statute."

Paltrow sees what is happening to Gibbs as a small taste of what would be unleashed were the constitutional right to an abortion ever overturned. "In Mississippi the use of the murder statute is creating a whole new legal standard that makes women accountable for the outcome of their pregnancies and threatens them with life imprisonment for murder."

From protection to punishment

At least 38 of the 50 states across America have introduced foetal homicide laws that were intended to protect pregnant women and their unborn children from violent attacks by third parties – usually abusive male partners – but are increasingly being turned by renegade prosecutors against the women themselves.

South Carolina was one of the first states to introduce such a foetal homicide law. National Advocates for Pregnant Women has found only one case of a South Carolina man who assaulted a pregnant woman having been charged under its terms, and his conviction was eventually overturned. Yet the group estimates there have been up to 300 women arrested for their actions during pregnancy.

In other states laws designed to protect children against the damaging effects of drugs have similarly been twisted to punish childbearers.



Funny how the author uses the word "baby" when the conception is wanted and "foetus" when it's not.

This story illustrates the fundamental misunderstanding of sexual reproduction that permeates our culture. Nowadays we have this insane idea that every child is supposed to survive, when the reality is that, by design, the vast majority of conceptions are supposed to die. It sucks, but that is simply the immutable reality of sexual reproduction: in exchange for producing some individuals who are incredibly well adapted to a wide range of environmental conditions, it also generates an immense diversity of individuals who are poorly adapted or even downright defective. (In contrast to, for example, bacteria, which can produce billions or trillions of beautifully adapted replicas without a hitch, but whose populations are vulnerable to even slight changes in environment.) In our frenetic drive to save every product of conception, we are literally weakening the genetic quality -- and with it, the adaptability -- of our species.

Now I am not necessarily opposed to women whose babies die due to drug use being charged with murder, but I do think there needs to be strong evidence that some action a woman took lead directly to the death of her child before action is taken against her. Otherwise we could end up with an epidemic of women being prosecuted for what amounts to acts of God -- that is, for sexual reproduction taking its intended course.

This story certainly illustrates the danger of the "law of unintended consequences" and highlights the urgency lawmakers should attach to thinking through every conceivable permutation of their proposed laws when they write them. Some prosecutor looking to make a name for himself is always going to try to apply the law way beyond its intended scope, often with bizarre results.
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Porforis
13 years ago
I think the entire system is convoluted. Either a fetus is a human and is given the same rights a baby would be, it's a pre-human with a firmly-established set of rights, or nonhuman with no rights.

If a fetus is legally considered a human with human rights, abortion should be considered murder. If a fetus is given its own class of rights, they need to be applied evenly and fairly, and said rights laid out a bit more clearly. If a fetus has no rights, you should not be subject to any criminal charges for committing an act resulting in the termination of a fetus.
Cheesey
13 years ago
This is ALWAYS a touchy subject.
I have always felt that killing an unborn child is murder. There was a video tape put out years ago by a pro life group. I believe it was called "Seeing is Believing". I think any woman that is considering an abortion should see it. It might open some eyes.

Anyway......i see a drug addict who has a still birth as guilty of a crime. If it wasn't done on purpose, then i'd call it "manslaughter", as her actions had to have an impact on the child's living or dying. I would think doing a drug test on the fetus cells would tell if it got into the baby's system or not.

If a drug addict has a one hour old baby, and sits on it while it's laying on the couch and smothers it to death, what would you call that?
Yes, we are talking about a child that isn't born yet, but if you believe as i do that a human "fetus" is a person, then it's the same thing.
The Bible talks about unborn children several times, including that when John the baptist's Mom heard about Jesus (while she was pregnant with John) the baby "lept with joy". Also, it says God knew us while we were still in the womb. I'd say that should answer whether or not we are people or not before birth, if you are a Christian at least.
To me, if a woman does things that puts her baby's life at risk, before or after birth, she should be held responsible.

If a man punches a pregnant woman in the stomach, and the baby dies, he's held as a murderer, right? Why should a mother's "choice" matter ONLY if SHE chooses to kill the child? Either it's murder, or it's not.
I know that it's "lawful" to murder an unborn child if the mother doesn't want it. But just because something is legal, doesn't mean it's right. As i have stated before, during world war 2 it was legal in Germany to kill Jewish people. Does anyone here think it was right?
I also believe that there is forgivesness from God for a woman that aborts her child if she asks God to forgive here. Today, woman are taught by "planned parenthood" that it's just a tissue mass, not a child, so it's just FINE to kill it. They are mislead by groups like this. And i think if you check out how planned parenthood was started, and the beliefs they stood for back at their beginning, you'd not look so favorably at them.
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Nonstopdrivel
13 years ago
As I said, I believe there are actions dangerous to the baby that should be prosecuted as murder if they succeed in killing the baby. My point was that even in the best of situations, a huge proportion of embryos and fetuses die -- as gruesome as it sounds, that's the way it is supposed to work. We need to tread very carefully before charging women with murder unless we can show conclusively they took action to kill their babies.
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