Michele Goodwin, "Crow after Roe: The New Inequality Paradigms in Pregnancy"
Michele Goodwin, Chancellor's Professor of Law at UC-Irvine, will discuss the turn to policing women's reproduction through laws that criminalize "poor" maternal conduct during pregnancy. She will examine the role of doctors in carrying out such political and law enforcement agendas, arguing that instantiating doctors as quasi-law enforcement risks undermining health-care objectives, perpetuating racial and class hierarchies in pregnancies, and deterring pregnant women (particularly Black women) from seeking medical care.
This talk was sponsored by the Law Students for Reproductive Justice, BLSA, and ACLU, and presented on February 9, 2015.
This audio file is a production of the University of Chicago Law School. Visit us on the web at www.law.uchicago.edu.
Thank you all for coming to our talk today. It's sponsored by the Law Students for Reproductive Justice, the Black Law Students Association and the ACLU. Our talk today is presented as part of the continued conversation from Diversity Month and in recognition of Black History Month. Before we get started, I'd like to remind everyone that today's the first day of LSE-- LSRJ Week and the LSRJ-DVP Candygram sale and raffle, which will be benefiting the National Advocates for Pregnant Women, which works on many of the issues that Professor Goodwin will be speaking to us about today. Michele Goodwin is Chancellor's Professor of Law at the University of California Irvine and founding Director of the Center for Biotechnology and Global Health Policy. Prior to law teaching, Professor Goodwin with a Gilder Lehrman postdoctoral fellow at Yale University. She's also the founder of the Infancy for Global Child Advocacy and the Executive Director of the u s chapter of the Defense of Children International. Professor Goodwin is the recipient of numerous awards, recognizing her contributions to the legal academy, including the Faculty Achievement Award, the Outstanding Scholarship Award, the Black Pearl Award, the Urban League Women's History Month Honor and the Chicago History Museum's Pioneering Woman Award, among others. She will be speaking with us today about "Crow after Roe: The New Inequality Paradigms in Pregnancy." Please join me in welcoming her.
It's a real pleasure to be here. Thank you so much for welcoming me. Uh, we will see a very short clip through a New York Times video repository and so we will need some help with lights. I don't know if they operate through the screen here, does the old fashioned way, but before we do, but they are right there. Okay. Right. And so you guys, great. We're ready to go! Um, I want to say that this research that I'll be talking about ties into another aspect of the work that I do, which is broadly within the realm of biotechnology and how I became interested in the plight of poor pregnant women. And the type of policing that has gone on in terms of their reproduction actually came through my work on assisted reproductive technology. What I found very interesting about ART is that there was such an incredibly high failure rate and not only was there an incredibly high failure rate, at best it's about a 30, 35% chance that someone will actually become pregnant with that technology.
But it also involves a very strong cocktail of drugs. Uh, the regimen that's daily is a hyperstimulation of the ovaries that has been documented to perhaps have impacts with cancer. Uh, there are significant types of disabilities that might result from the technology, uh, in the children who are born through ART, including hearing impairment, cognitive delays, and many other types of issues including cerebral palsy. And so this was very interesting to me, particularly in the space of much political attention to how women reproduce and what the outcomes happen to be. What was ironic was that there was no federal law, no state laws about this, a pretty much a wild wild west that has emerged from that field with significant liberty interests that are in full operation. Well, I found this very interesting given the empirical evidence that had developed over time in terms of the risks to women and the risks to the children who are born through this, uh, these technologies and also the gap in legislation.
And I found that particularly interesting in the space of another kind of reproductive policing that was taking place. And the justification being that the state had an interest in fetuses and what I'm talking about with the early era of the drug war and the so-called crack baby scare. In that, prosecutors justified using child abuse statutes in the arrest and prosecution of women, almost exclusively of color, primarily black. And the justification being that crack would in fact impose all sorts of health harms to the fetuses and that it did. Or that if a woman had a miscarriage, let us, let's say, and who had admitted to her physician or nurse that she had been a drug user, that that was directly connected with the crack use and prosecutors then began prosecuting women for delivering illicit substances to their fetuses, et cetera. What was very interesting in the space of that was the very shaky and unreliable science that prosecutors and police were holding onto in the space of that and so I saw two very different worlds in two different kinds of responses to conduct during pregnancy. Now we're going to start off with a short clip from the New York Times and then from there I'll give you some idea of the scope and scale of what I mean by "Crow after Roe", so let's get the lights and we'll get this clip started. [noise from video]
[inaudible] "...the media sounded the alarm that a new drug, crack cocaine, was taking over American cities and that it has an especially devastating effect on pregnant women and their newborns. The new study says that baby's born to women who use cocaine during pregnancy are three times as likely to be born with birth defects, mental retardation, called [inaudible], for the rest of their lives. But were these infants really doomed? Nearly three decades later, what is the true legacy of the crack baby era? In the early 1980s, Doctor Ira Chasnoff, a young researcher at Northwestern Memorial Hospital in Chicago, decided to study what he saw as a worrisome trend among his pregnant patients who used cocaine. Women were coming in and their babies were looking different when they were born. They had higher rates of prematurity and they had higher rates of newborn seizures and other complications. The babies, you've seen the effects of alcohol and other substances on children. So we were certainly open to the idea that this was a problem. Cocaine was epidemic."
"I think that it was something that the media, I mean, it became an exciting thing to talk about. What you got there? 48 hours on Crack Street. Soon after our paper was published, within days we were getting calls from media all over the country, uh, and started hearing the term crack babies. Spotlight tonight, our investigative series on cocaine and kids. Despite all the warnings and growing number of babies are being born already addicted to cocaine. As it goes out into the world. It became this, this phenomenon [inaudible] ...a few reliable statistics. Growing an astonishing rate. The number of babies born addicted has risen more than 500%. I get lots of people interviewing me. Doctor Ira Chasnoff with Chicago's Northwestern Memorial Hospital runs the oldest program researching cocaine in the newborn. It appears that cocaine has just as devastating effect on pregnancy and the newborn as heroin. Chasnoff told reporters that cocaine exposure was causing some babies to be born with brain damage and that others were overwhelmed by even simple eye contact with the mother.
These children are not normal in the sense that they're going to be able to enter the classics school, school and functioning large rooms and showing other researchers and doctors echo Chasnoff's conclusions. In a host of seemingly recognizable symptoms took hold. One of the things that we see about babies who have been exposed to cocaine, they tend to be very tremulous and shaky, very fine kinds of tremors. We looked to see if we would find the effects that were reported and we were saying, well, we're not seeing this. As the Chasnoff star rose, Dr. Claire Coles was reaching a different though equally starting a conclusion about crack babies based on her study of infant behavior at Emory University. The effects didn't seem consistent with the action of the drug itself. Many of the children who are the so-called classic cocaine babies were premature babies and the symptoms that were seen on videos, on television, little, you know, tremoring arms and all that. That was prematurity. You could have taken any premature baby and gotten the same image. I think that people got very focused on cocaine is the cause of this rather than thinking substance abuse as the cause of this, maternal lifestyle's the cause of this, social issues are the cause of this. Because his findings didn't fit within the narrative and what had become a national scare.
Cocaine. Crack. If you use drugs while you're pregnant, your baby can die. There's a whole lot of people, you would feel that if you could just scare people sufficiently about something, um, that that's better than actually telling them the truth about something because that'll prevent them from doing bad things. [inaudible] Poses this question: what will you do about pregnant women who use drugs and pass those drugs onto their babies? By the late 1980s Chasnoff's findings were being used to justify cases charging pregnant cocaine users as child abusers, drug dealers, and killers. I was at first done and then angry that they would distort the information. That's when I started realizing how a lot of this can be taken out of context and used to bolster any kind of arguments. People may have felt that they were doing the right thing, but I mean the idea that one would prosecute a pregnant woman and use this kind of not very accurate research to do so is very disturbing.
As the prosecution's continued crack babies grew to toddlers. No one knows how many there are, or even how best to identify them, but educators suspect that tens of thousands of crack kids are in kindergartens in inner cities, in suburbia, even in small-town America. Threatens to create an entirely new under class of children unable to care for themselves but have been born to suffer. In the United States this year, at least 100,000 crack babies will be born. Today, the government said it will cost $5 billion a year to care for such babies and money doesn't begin to tell the whole story. I'm supposed to be the victim of that crank era. I was supposed to be disruptive, mentally unstable. I wasn't supposed to reach the point where I am now. The initial hypothesis that drug abuse will lead to huge physical deformities, huge mental deformities in children and you know, in myself, I didn't see any of those things, so it would be easy for me to believe that that science doesn't hold true. Almost three decades since Chasnoff's initial research, which focused on just 23 babies, longterm studies have found only subtle changes in the brains of cocaine exposed research subjects like Stone.
There's no particular evidence of this social emotional deficit. You're not seeing really broad scale severe developmental problems, as was predicted. The schools have not been overwhelmed by the flood of cocaine exposed children. In fact, Stone became the first in her family to graduate from college. In learning that I had been exposed, I kind of told myself I'm not going to make this an issue. Whatever I have to do to get around what the effects may be, I'll do that. The paper was a very preliminary kind of finding and it really shouldn't have been generalized to the extent it was, which I believe Doctor Chasnoff eventually added to himself and said that he felt that this didn't really represent the whole of the situation. Doctor, let's go to you on this question, you've studied this, perhaps one of the first people to study this. How does cocaine use affect newborns? Well, there's no question that cocaine use during pregnancy has some real effects on the unborn and on the newborn child. But these effects are not devastating and can be addressed during treatment for the pregnant woman and for the child. Over time, Chasnoff did distance himself from some of the extreme pronouncements he was quoted as making in the early days. I probably talked too much or gave long winded explanations which were completely cut up. It was one of those feelings where you just feel completely out of control.
But the hysteria that following his initial research had already taken its toll. It wasn't even a natural disaster or war. It was a drug that caused so much harm among my generation and my parents' generation. Certainly cocaine was contributing to this problem, but they got very focused on it as the only sole cause.
Okay. I'm going to end there and-- How do I darken the screen again? On the left hand side, you see where it says show. Okay. All right, perfect. All right, well I wanted to share that because it's pretty powerful and it gets you direct information right there. You get to see the players who were involved. Dr Ira Chasnoff, who had been at Northwestern, uh, a young professor, and whose career skyrocketed and took off after what is only questionably a study. There was no control group. He had some patients who came in. Uh, he was not a researcher in this domain, like Dr. Claire Coles, uh, and like Dr. Hallam Hurt, who's at, uh, the University of Pennsylvania who had been the two leading scholars whose, uh, decades worth of research had all been about maternal fetal impact with regard to, uh, tobacco, cocaine, alcohol, et cetera.
But the era is interesting, uh, because at that time we had, uh, the War on Drugs and also the war on women who received welfare benefits. And in the wake of both of those things, then it was so easy for the narrative about the crack baby to take hold. And this short clip from the New York Times doesn't even begin to address exactly what the media covered and how the media further exaggerated this. And these are children who were labeled as crack babies were thought, as this documentary shows a short clip, uh, to, uh, cost our country hundreds of millions, if not billions, of dollars. They would be uneducatable. Uh, they would cost our public schools, uh, through special education programs. They would be criminal and so forth. And it was a very easy narrative to adopt at that time. Now what's very interesting is that in the wake of that there was not much unified.
Um, there wasn't much of a unified front from feminist groups to work on these particular issues. So in the wake of Roe, these women were sort of missed. It was the National Advocates for Pregnant Women and the work of Lynn Paltrow that significantly came in to both document and then also serve as legal advocates for the women were caught up in that particular spiral. Now when you think about any kind of cause, it needs its own poster child. And these women were not thought of as the poster children to represent the feminist movement about reproductive liberty and reproductive freedom. Right? And, and that too is a narrative that's long and old as we know, right? The suffrage movement was one that excluded black women, even highly educated black women were excluded from the image of the suffrage movement. And these women were thought of as nuclear, as toxic, as dynamite to a movement that wanted to hold onto, uh, the pronouncement in Roe v. Wade.
And in fact sadly is very interesting about Roe v. Wade as the, some might call it laziness, but others might just call it a kind of false sense of pride that it in fact there was nothing that was needed to protect Roe even further. And why is that important? I think that these women and their prosecutions really began to represent the canaries in the coal mine. And what do I mean by that? The early days of policing these women's, uh, pregnancies and the prosecutions that resulted and the plea deals that resulted from that policing opened up a door that now is not quite a floodgate, but I'm going to give you some examples about those who are now caught up within the specter of the state's gaze and prosecutions or threats of prosecutions that are going forward. For example, at states are increasingly relying now on medical personnel, Dr. Ira Chasnoff-esque to inform them about their pregnant patients.
And that's becoming a first line of state involvement where doctors are now serving as quasi state agents in identifying to police and also to prosecutors that patients, uh, are telling them that they've used illicit drugs or that they're finding it in their urine or blood sample. The Medical University of South Carolina serves as one example. And how many of you are familiar with that case? Anybody? All right, so I'm going to go through some of these. So the Medical University of South Carolina in the 1980s and '90s, implemented a program by which it would specifically just target women that they thought, uh, were using crack during their pregnancies and they would, uh, turn over as part of the program, turn over the medical information of those patients, all of whom were black, with the exception of one woman. And that one white woman on her medical chart, a Nurse Brown wrote lives with Negro boyfriend.
The idea right is that any of these women, they threatened health to their, uh, their fetuses and that in medical information would be turned over then to police and to prosecutors. The U. S. Supreme Court ultimately addressed this case. And on fourth amendment grounds, uh, dozens of women in fact were, uh, released from prison who were caught up in that particular dragnet. But interestingly, there have been numerous prosecutions just between, um, the late 19--, the early, the 1980s, let's say, and about 10 years ago there were more than 500 prosecutions, many of which were documented by Lynn Paltrow the National Advocates for Pregnant Women. Uh, many of these women who are prosecuted for illicit drug use during pregnancy took plea deals and you can understand the sort of dynamic of taking a plea deal. But this open door that I'm suggesting now leads to the following, probably find quite interesting women being threatened with incarceration for refusing bedrest.
And here I'm talking about not just women of color, right? We were talking about poor women and how this trickles up, right? This sort of open door of the hundreds of poor women across the country who were African American, set a stage for prosecutors, and also judges who permitted this, to go on to then not think much of the following kinds of cases. Uh, Christine Taylor, woman in Iowa just a couple years ago, uh, incarcerated for three days. Why? Uh, because she fell down steps while pregnant, called the ambulance. They checked her out, then she went to the hospital to just make sure that everything would be fine, with her fetus. And during that time shared with a nurse that, uh, her husband had left her, she was a single parent of two kids and when she first learned that she was pregnant, she thought about an option and she thought about abortion and now she's, you know, going to have her child.
The nurse alerted police. She was arrested and she was thrown in jail while the prosecutor, uh, attempted to, uh, to, uh, find evidence that in fact her fall meant that she was trying to harm her fetus. Uh, Rennie Gibbs. A young African American woman charged with the depraved heart murder in her stillbirth case. Lots of women with stillbirths and miscarriages who have shared with their doctors and nurses that they use some form of drug during pregnancy are being arrested and then prosecuted. In fact, in my research for my book Policing the Womb, I've interviewed prosecutors in Alabama. Alabama's become a hotbed for arresting and prosecuting women who have used methamphetamine during pregnancy. There is a law in Alabama, it's a child endangerment law that's directly connected with uh, places where meth, uh, is sold and the law, uh, prohibits an individual from bringing a child into a place where methamphetamine happens to be made.
Uh, what prosecutors are doing is using this law in the prosecution of pregnant women, though, and interestingly, the drafter of the law, the legislature who drafted the law, said this was never how the law was intended. The law is actually intended so that parents wouldn't make meth factories of their homes, thereby endangering children who lived in the house. And as I've interviewed prosecutors, and one in particular who leads the pack, uh, in terms of prosecutions has shared with me that the real goal here is to stop women from having abortions and to save the babies. But these cases also involve things such as women who don't want to have c-sections now threatened with incarceration. Lisa Epstein, a middle class white woman in Fort Lauderdale, told her physician a couple years ago she just wanted to wait a couple extra days so that she could have a vaginal delivery. She received an email from her physician saying, don't let me take the next step, which would be calling law enforcement and having them bring you in today.
So in the wake of Roe v. Wade, this pernicious type of policing that starts with policing women based on the fact that they used crack during pregnancy has now expanded to include many different, a multitude of ways of policing pregnant women to preserve a kind of perfection of pregnancy or our perception that somehow pregnancy can in fact be perfected. And these cases are broad. They include patients who have cancer and want chemotherapy. The Angela Carter case, which some of you may know about pregnant woman who wants chemotherapy. Doctors refuse to provide the chemotherapy, seek a court order, and why? Because they believe the chemotherapy will harm her fetus and without her consent, they remove the fetus. The fetus dies in two hours and she dies in two days. Or the case of Marlise Munoz. Does that name ring a bell at all? The Texas case? There's a documentary now being made about this.
I just got an email this morning from the producer who wants to work with me on this, and that particular case is a woman who is diagnosed as brain dead after an aneurysm. Some of you are nodding now. As you remember, her husband and also her parents decided that she should not be on life support. But as you remember from that particular case, Texas Hospital ref--, uh, officials refused to remove her from life support and they refused to remove her because Texas is one of more than two dozen states that actually prohibit removing life support from a pregnant woman. All right? The Texas law is among the strictest in the nation, a dozen state statutes, including those of Kentucky, South Carolina. Utah was constant quote, automatically invalidate a woman's advanced directive if she happens to be pregnant. So then the question that we have to ask in the wake of Roe is, what's, what's going on here?
Why do we see so many trap laws being inactive? The trap laws are those that deal directly with abortion limiting women's access there. And why do we see this type of policing that's taking place, uh, with regard to women and their pregnancies? And what is it that the law can do about this? What I'd like to present to you is that the scope and scale of this happens to be significantly broad. And I'll tell you about just one more case before getting on to thinking about doctors' roles in this and then also how we might think about this in terms of law. And then I'd like to open it up for conversation. And the one more case that I'd like to share with you happens to be the case of Alicia Beltran. And Alicia Beltran's a woman in, uh, Wisconsin who pregnant goes in the early stages of her pregnancy in the first trimester to visit with, uh, her care providers and she shares with the nurse who's treating her that at a point earlier in her life, she had been addicted to prescription medications and that she was fine now.
In fact, all of the medical tests expose that she really was fine. There was no drugs found in her system or anything like that. Within a couple days, there were, I think five to seven police officers who surrounded her home who, uh, handcuffed her, took her in. She was in the orange jumpsuit before a judge, uh, in shackles. There was an attorney representing her fetus, but not one for her. Wisconson is one of several states that euphemistically has a law, the law is euphemistically called "the crack baby mama law" and what the law represents. And she's not black and she's white woman. But what the law is intended to do was to give medical authorities the authority to civilly incarcerate a woman for the protection of her fetus for any reason. As long as the fetus is somehow in danger, then the state can require the incarceration, civil incarceration.
She was incarcerated for more than 70 days. And when she was released, she had lost her house. She had lost her job. And how is her fetus now better off or the child? And when the issue came up, um, before, um, a judge, um, in Wisconsin, the issue was rendered moot because she had already been released. All right, so the scale is broad, uh, with these particular cases, who's involved? Well, doctors are involved and doctors serve as the gateway for many of these prosecutions that ultimately take place, which raises questions about the fiduciary responsibility between doctors and their patients and to whom doctors owe that fiduciary responsibility. Is it to the patient or is it to the state? And what are doctors sacrificing, uh, in their, uh, in taking on this role for the state? Well in articles that I've written, I've suggested that in fact this is a breach of the fiduciary relationship and that this use of criminal leverage and medical utility actually undermines how-- it undermines the health of women and undermines the health of their pregnancies.
Right. Um, before even getting into a debate as to whom that the patient actually happens to be, of course the patient happens to be the pregnant woman, in my mind. And what's interesting about this is that it can cause a chilling effect for women who actually need prenatal services. What's the incentive to actually get prenatal care if in fact one risks incarceration in the process? And to know anything about being pregnant while in prison, um, is to know that in fact, uh, these are horrific circumstances in which women experienced their pregnancies. For example, in the state of Minnesota where I used to be a professor, in that state, they're just now changing a, there's a bill in place to change their shackling laws because in the state of Minnesota, they had something called black box shackling during pregnancy, which is that the shackles go around the ankles.
They go from the stomach, they go around the wrists and then they are all together like this and pregnancy. Now medical professionals have said this is really not the way for a pregnant woman to be treated. And certainly being shackled while giving birth causes a risk of harm to the woman and as well to the fetus because of the stress in the body and the inability to comfortably move, et cetera. And he had to think that this is just simply retribution at the very highest levels and that is not medically indicated. Right. This does not actually help. And pregnancy in prison is really quite awful. I've been working with a group called Gina's Team and Gina's Team was founded by a woman who had breast cancer in prison, white woman who was in her fifties when she was in prison with breast cancer. And as she describes in her memoir, it's really quite awful to get a sense of women and healthcare in prison.
She was taken shackled to receive her mastectomy. Yes. Yeah. Shackled and chained to get her mastectomy as if she was, uh, a flight risk, uh, with no visitation. But what's even more interesting than just Sue Ellen Allen's story happens to be the story of her roommate, a young woman named Gina, who after complaints that she had these severe headaches, that chewing made her feel like she was breaking class with her teeth, sell floors, given Ibuprofen over and over as if that was going to treat her, refusals to provide her access to the infirmary. When she was finally taken to the infirmary, she lapsed into a coma and she died three days later, she had undiagnosed leukemia. Right? So this idea that somehow states actually further their interest through these prosecutions of pregnant women and tossing them in jail is just a complete misnomer. Misnomer, right?
It doesn't actually end up happening. So there are some significant reasons, most primarily the health reasons that in fact doctors should not be involved in these kinds of prosecutions and turning their patients over to law enforcement because it certainly does violate the physician, corrupts the physician patient relationship and doesn't actually help the women. It really hurts them. And, uh, the outcomes in their pregnancy. Right? Which also means that it's not really serving public health goals. But then the question for us is that, well, what is there to do about this? And with what frame might we want to think about this? Well, for many years, um, the framework that's been used to think about women and reproduction has been, um, sort of thinking about privacy, right? You know, was the kind of privacy, right? That's what we think about posts in a post Roe v. World.
But I'd like to suggest something that, uh, Justice Ruth Bader Ginsburg really pushed for and that was an equality, uh, framework. Um, because scholars responses to the attacks on reproductive liberty are significantly situated in the liberal notions of substantive due process and they offer some persuasive arguments that women's autonomy and privacy deserve the protections of the fourth amendment's due process clause. The principle arguments that ground liberal, substantive due process analysis and reproduction relate to the arrangement of women's individual autonomy as well as a personhood and the invidious force imposed by the government and women's childbearing. Um, and much of the reproductive health scholarship borrows then from the individual liberty framework that was established in Roe v Wade, which situates constitutional protections for the right to procreate as well as to terminate a pregnancy in the due process clause. But I want to take up a different, uh, form of thinking about this both descriptively and normatively, uh, one that reassert the relevance of an equality framework and women's reproductive health generally and specifically as applied to fetal protection cases in pregnancy, such as those that I've just, uh, talked about.
A sexy quality argument in the fetal protection context would ask whether state interventions are really about promoting fetal health or whether these fetal protection efforts might also manifest constitutionally repugnant judgments about women, particularly pregnant women. The application of an equality lens to answer punitive fetal health interventions and women's pregnancies reflects my concern that states uniquely enlist law enforcement, including doctors as these quadrant [inaudible] agents of the state to deploy their interest in very gendered types of ways. If states deploy their fetal health interest in gendered ways, might that sex-selective approach indicate constitutionally suspect motivations? When states manifest their interest in fetal health, they express these concerns almost exclusively among poor women who lack the social and economic capacities that protect wealthier educated women from similar punitive encroachments by the state. And we certainly saw that with regard to the crack babies sweep. And one thing that I should make note to you is that in 2001 the New England Journal of Medicine and the Journal of the American Medical Association both said that they would no longer print any articles that used the term crack baby.
And the reason why is that they said after decades of the hysteria that had been in the media, there had been no proof of what a crack baby actually happens to be. So it's actually a term that is obsolete now for medical purposes. For example, when states pressure physicians to subject poor African American pregnant patients to invasive protocols as a means to determine illicit drug use in furtherance of fetal health, such as the Medical University of South Carolina, but significantly exclude white patients from similar interventions. That disparity indicates a suspect motivation not explained by health or law rationales equally when punitive fetal protection efforts operate exclusively in indigent communities or where the indigency care and not universally such actions reflect decision making that carves out unjustifiable discriminatory distinctions between classes of citizens that have no relationship to a permissible government purpose. And such distinctions might reasonably be explained, um, by constitutionally impermissible stereotypes.
Right? And so that's the heart of the argument that I'm making, which is that, uh, these are constitutionally suspect prosecutions that are taking place. Uh, and these prosecutions are very much based on stereotype. Now I'm going to close with making one point and this connects with this concern with regard to drugs. It's been a very successful tool leveraging tool by politicians and also by prosecutors to say that, well, we have an interest in protecting fetuses from the use, uh, from their mother's use of harmful drugs. But what's very interesting there is about the distinction that's made between illicit opioids and those that are prescription opioids. It turns out and research that's been spanning decades now that wealthier educated and white women have increased the use use of opioids during pregnancy over the last three decades. Uh, and in fact, cocktails of these, uh, prescription medications, prescription making, giving the kind of veil of legitimacy, including Oxycontin, um, Demerol and many other substances all at the same time during pregnancy.
Now, in my interviews with prosecutors, I've asked, well, why in fact go after women who admit to using illicit drugs and not women who, um, use prescription medications during pregnancy? Right? What's the distinction between the two? The base substances happened to be the same. And of course, I don't suggest in my work that any of these prosecutions in fact should be taking place at all. Um, there are waste of state resources. They really don't help these women at all. And if we want to get women off of drugs, rehabilitation happens to be the best way to go about doing it. But prosecutors are very reluctant and in fact in most cases do not go after women who are abusing prescription medications during pregnancy. Alicia Beltran was a an exception to that. Or why not go after the physicians who are the physicians and the pharmacist who are crafting mills. And what that is is the pill mills, which are found in many southern states where women aren't given prescription after prescription. And it can only be, uh, for the abuse of drugs or selling prescription medications. And again, prosecutors are loath to go after those particular cases. And so this is why I suggest that there a stereotype in fact that's used in these particular cases. Now I want to open up for a comment and some Q and A and then we can get more into the research behind this project. [applause] Yes.
The constitutional presumptions that you're talking about in the inequalities. Um, I'm very curious what precedent you would use to argue that now and also, um, what statutes you, you would use target now. And then I'd also like to know, depending on how the Supreme Court rules in the tune about marriage equality, um, if you think that would help your case at all.
So this is a very, um, it's very good question. So there's a legacy of cases and one in particular, um, that some see as a hurdle and I see it as not so and that's the [inaudible] book, um, the ILO case, um, and in this particular case, um, scholars read this case, a 1974 case, um, as a closing door for um, equal protection claims for pregnant women. But the case I suggest has also been construed to infer that not all classifications that discriminate against women or disadvantage them as a class or subclass are necessarily based on sex. And in this particular case, the California's disability insurance program, uh, mandated participation but exempted work missed due to normal pregnancies from insurable, uh, coverage. And for that reason, many scholars have come to think of that as a closed door to an equal protection argument that's made about pregnancy.
Um, but it's worth noting that the original language, um, from that, that exempted all pregnancies, even those requiring medicalization over eight days from coverage. Now in the lawsuit there were several for the department. Uh, there were several of several petitioners, um, three of whom experienced abnormal pregnancies resulting in termination, um, and miscarriages and one of them who experienced a normal pregnancy. And they argued that the program violated the equal protection clause because it precluded the payment of benefits for them. Now, what I argue in a very recent piece that was published in the California Law Review, is that the case has significantly been misread, right? And if one were to read the case, in fact more clearly, um, one would know in fact that, um, that in fact [inaudible] does not actually close the door to an equal protection claim for pregnant women. Uh, and I'll just walk through that for just a little bit.
Um, so, um, the court does not dismiss pregnancy as never qualifying for protection under the equality standard, ah, guaranteed by the 14th amendment. Neither does the court issue a resounding rejection of the principle that pregnancy regulation can be sex regulation and therefore can be discriminatory, the court did not hold that discrimination based on pregnancy deserves a lower level of review and classifications and cases that involve sex. The court did hold that state regulations affecting pregnancy are not always suspect of sex discrimination, right? So it's not always suspect of sex discrimination. And when a regulation is not suspect of sex as when it is not suspect of race a rational basis, analysis will be used. Right. So many have sort of confused that language in the case itself. But I've argued that the case actually provides an open door where one can demonstrate that there has been sex discrimination that could be based on something such as gender.
Right. So that's what I'm arguing now in terms of the cases before the Supreme Court this summer, it's, it's been very interesting as some have said that, you know, why is it that perhaps a door may be opening with regard to same sex while-- while it may be closing with regard to race and may be closing with regard, uh, to sex? Um, have any of you thought about or heard about that at all? Or some may say that, look, you know, it seems that gay rights may be expanding while there may be the, the constraining of, of right based on sex and based on race. I'm not sure that the marriage cases will have any real impact with regard to these cases at all. In the backdrop of all of this, it's worth noting that in the legislative sessions of 2013 and 2014 there were more anti-abortion legislation that was put forth and passed then in 30 years prior. Right. So that in the wake of states adopting gay marriage laws, at the same time in those very states, there have been the proposal of laws that would, uh, roll back Roe as one would say. And how one reconciles that. I'm not exactly sure. Yes.
Um, can I ask you about what I took to be your equal protection argument? Given what you just said, do you have any concern that these states that are most discriminatory [inaudible] say, okay, fine. We'll prosecute all of it. Okay.
Right. So all right, so, so great question. The question for purposes of audio is, well, given the landscape of what it is that we're seeing under an equal protection umbrella, might we see then the prosecution of all women, and by that, all pregnant women. We're not going to make distinctions between pregnant women who happen to be poor and of color versus pregnant women who happen to be white. But here's the interesting thing: If that were to happen, that might actually galvanize white women to use the electorate, the electoral process, and to use the democratic machine. One challenge significantly has been that there really has been the sort of the tale of two different cities, the tale of two different worlds in the backdrop of Roe and those early days, the prosecutions of poor women of color. Right? And again, those were women who are not, uh, who are not embraced or the poster children of a reproductive rights movement. But to the extent that white women also come under threat by the same very laws that may be in fact what it takes then for the electoral process, uh, to be in motion. And that may engender a different kind of judicial response as well.
Oh, come on. I know you guys have other questions or comments. Yes.
I'm taking an equal protection class. But I'm wondering how something like a trap law where, I mean it seems like largely the states have succeeded because they say the reason for those is rational. We're trying to protect women's health, how that would fit into this framework, if at all?
So, so the question being that these states would argue that there is a legitimate reason for protecting fetal health and that's what's behind all of this, right? That's, that's basically the question. Well, inherently we know it's not true, right? So the empirical evidence, like whether we're looking at the prosecution of women for drug use during pregnancy, or we're looking at the prosecution of women because they fall downstairs, or the prosecution of Bei Bei Shuai, a woman who attempted to commit suicide in the state of Indiana where committing suicide is not a crime. And she was prosecuted for first degree murder. She ate five packets of rat poison after her boyfriend left her and then she was prosecuted for first degree murder, as if it was about killing her fetus, for which she could have just simply had an abortion, and not about killing herself. And so the question is, is the state's concern there something that happens to be rational or is it something that would fall, uh, because it's constitutionally impermissible?
Well, here's the thing, you know, if you look at these matters through a comparative institutional analysis, it's important to note that yes, of course the state may in fact have interest in child health. It may have interest in fetal health, but that's not absolute. As we know from Roe, and as we know from Casey and in parents really do matter. What we know is that women do far better if in fact what the state is interested in doing is making sure that women have healthier pregnancies. It doesn't happen when they're in jail. Um, as one prosecutor in Alabama told me, she said that, and she's a person who's opposed these prosecutions. She said that women have more access to drugs in prison than they do outside candy store drugs in their local community. Maybe it's meth, maybe it's crack. When they're in jail, they had access to it all, right?
But the other outcomes are also worth us considering as well, right? If the concern happens to be about fetuses that will grow into children, that we want to track that. So what happens to the children who are born of women who've used drugs during pregnancy? Well, it turns out it's a horrible life. Uh, Kristen Turney, a professor at the University of California - Irvine, has done great work in this domain. She's a sociologist and her work reveals that children have an incarcerated parent fair worse than children who've had a parent die, right? Or have divorced. Right? The psychological and emotional impacts are, happen to be worse than death. But there's also some pretty compelling into a research that comes out of the University of Chicago. There is a collaborative between the University of Chicago and the University of Wisconsin in tracking children who age out of foster care. Because of course, if the parents are in jail, then children usually end up in the system unless there's another relative.
So we have about a half million children in foster care in the United States and here are just some quick, uh, stats. Um, for us, um, about 70% of the girls end up as teen parent parents themselves. That's about the same um, percentage of young men who end up in the juvenile justice system themselves. It's about the same number of those who end up dropping out of school. So this interest in the fetus, as it turns out, um, that tool of showing interest in the fetus actually results in some, some pretty significant part to the very, um, individuals that the state is seeking to protect. Yes.
I was wondering if you could talk a little bit more about the states where this traditionally and continues to be a problem. I know you've mentioned some of the anecdotally and also trends among them. The one thing that sort of comes to my mind is that it sounds like some of the things you've been mentioning are also those with pretty bad records that as a voting, you know, we've already got some voting rights, so yeah.
Right, right. Well, one thing that is worth tracking here happens to be, uh, the gerrymandering of districts and redistricting, how this flows. Um, and how this can map on to the states where trap laws, more pedestrians, types of trap laws have been an acted. And then also these kind of battleground states where these issues have taken place. I mean, we could show a map and what our map would show in part happens to be that many of the states that were also resistant, uh, re resistant to civil rights laws with regard to race are many of the spaces where these issues, uh, continue to take place. But what I would also remind us too just as I think there was a kind of seduction of looking at the South as the place in which racism really occurred. Like that hot bed and we're all protected, uh, in the Midwest, the Northeast and the West.
Well, that's not true. As I've mentioned that the state of Wisconsin, we have Alicia Beltran and in the "crack baby mama law," right. That's, you know, that's right next door, uh, in Wisconsin and Minnesota with its black box shackling. Right. Um, as well. So that while there have been states of Florida, Mississippi, Arkansas, um, Alabama, uh, as southern states that we can document numerous cases. I mean, in fact in Alabama, just within the last couple of years, there have been upwards of probably a couple of hundred prosecutions of poor women for taking, uh, methamphetamine during pregnancy. Right. I mean, that's, that's a lot. That's just within the last, uh, couple of years and it's become deeply normalized. Uh, but I, but I think that it would be a mistake to hover just on those particular states, because what we would lose out is recognizing other parts of the country where these issues have also taken place. Yes. Over here and then in the back. Yes, sir.
To the extent that these child abuse laws are being motivated and prosecuted by desire to restrict women's abortion rights. Do you think it is possible there would be a Casey Challenge for this enforcment of them because it's posing a substantial burden to abortion rights?
Well, here's what's interesting. In these cases, these women are not seeking abortions in most of these cases, and that's, that's the challenge, right? I mean, because they could, here's what's so interesting, in so many of these cases, it would be absolutely legal for these women to just go and terminate the pregnancy. So the scenes coming in saying you're not carrying the pregnancy in the right way. But of course you could just terminate the pregnancy altogether and that would be totally legal if she could find an abortion clinic in Mississippi, you know, there's only one. Right. Um, and so the Casey Challenge, while in fact that seems pretty darn sexy, it's not what these women are seeking to do, which may also be a reason why organizations that work on women's reproductive liberty issues were not deeply involved in these particular cases because these were women who in fact wanted their pregnancies to continue rather than desiring to terminate. Right? Yes.
Yeah. I was just wondering if there's been any decision related to that breach of the fiduciary duty between patients and their physicians. I mean, it just seems like the group that's being targeted isn't particularly petitious, they just don't really have the resources that anyone else brought to you.
So the National Advocates for Pregnant Women has been the stalwart group behind helping women with these particular types of cases. There is a very thick legacy in twofold, both in terms of court cases, not necessarily those that involve these women, but other cases that have gone before court where physicians have violated fiduciary responsibility and where courts have said, this is the highest level of responsibility that any professional has, is the fiduciary responsibility. So when you read the quick cases that address physicians and their fiduciary responsibility, it carves out a very clear line, except you don't see that as a strategy in these particular cases. The second part of that very good question happens to be at the local level of what happened, which is that, um, I've gone through state by state, uh, the records of doctors being, um, losing their licenses and what are, what do they lose their licenses for, and again, you know, unethical conduct with regard to patient, including disclosing information is private and to be held.
Same thing but not something that's been used in any of these kinds of cases. So one issue that you're raising is really the need for, for crafty legal minds and arguments to be used in these particular cases. And for those who are looking to work in this area, serving in those particular spaces, I have recommended, uh, for those who, uh, for those who, uh, assign fellowships in this regard, to think about people who are willing to go to work in some of these battleground areas because, uh, that's where it's really needed. People who are willing to go to Alabama and Mississippi. Yes.
So you mentioned that these women were being arrested, they could've just gone and gotten abortions. What about after they're arrested? Did they have acts like quick abortion once they're in jail?
No, no. In many states they do not have any access to abortion while they actually, while they happen to be in jail and the abortion regulations have become so widespread and so pernicious that that in fact would be another talk. But I can give you some quick idea, just what's been happening on that front. Um, there have been the, uh, the expansion of the waiting period. So most people understand, uh, the traditional restrictions as being waiting periods, maybe 24 hours. Uh, but now that's expanded to be up to 72 hours, uh, not including holidays and weekends. You can imagine what that means for a woman who lives in a rural area trying to get to the one abortion clinic that happens to be in that particular state. These laws also include the admission privileges for doctors at hospitals. Um, a lot of doctors who actually perform abortions fly into town to do that.
They don't necessarily live in the town where this, where the abortion clinics happened to be. Um, also as you know, there the questions about how wide the walls happen to be in the abortion clinics and so forth. So many of these kinds of efforts to restrict abortion, but now it's also involving telemedicine as well. Uh, there are governors, uh, that have stepped into the fray. The state of Iowa-- have you come across this in your research about the governor in Iowa now needing to approve abortions that are safe and that they have to go across his desk? Can you imagine as governor that that's what you want to spend your time doing? Signing off on who can have, uh, an abortion? Uh, and also some states have gone so far as to restrict, restrict insurance providers from performing abortions for state employees. So employees who receive, uh, insurance through the state because they work for the state, not allowed to receive an abortion through their insurance, but also this is encroaching in the private sphere too, right? So this is some of that, what that landscape looks like.
Time for one more question.
I have a question. I noticed your word choice throughout your talk that you choose to say the word fetus rather than baby. I've noticed that, and I've heard some advocates say that framing and the language that we use to frame this debate and how important it is. And I don't know if that word choice for you is about framing the debate, or more scientific reasons about the word. If you could speak a little bit to that.
Sure. Well, the reason why I use the term fetus is to describe exactly what the status of that life happens to be at that particular stage, which is different than a child. And the reason why I use that is because it's important to draw the scientific distinction and also the legal distinction there. For example, in the state of Arkansas, I think the conflations can be problematic in the state of, uh, of, uh, Alabama, excuse me, not Arkansas. In Alabama. Uh, in a case, uh, a year, year and a half ago, the state Supreme Court said that it sees no distinction between a child and a fetus and no distinction between a non-viable fetus. And a child. Well, of course that's very different. We're talking about a non-viable fetus. Um, we're talking about embryos. You see no difference between an embryo and a 10 year old, right? There really is a distinction across that line for many different reasons.
And I think it also helps to reconcile between different areas of the law that we might want to think about. For example, court law, right? Much of what's been accepted within the framework of criminal law in these criminal prosecutions would not in fact fly in tort law. So we might imagine could embryos bring litigation? Um, you know, what court is where, where's that going to happen and what court? In the state of Louisiana, for example, they've said that, um, embryos have, um, that embryos are persons, but you'd imagine a hurricane, another hurricane Katrina coming about. Um, can embryos then bring suit all of those cryopreserved embryos, somebody's gotta represent them to bring suit against the clinic? And what kind of recovery would that be? I seriously doubt that any court would allow that to go forward. So that's why I use the distinction. You guys have been great. Thank you so very much.
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