Under a controversial law in Mississippi that allows the state to prosecute women for causing harm to a fetus, Rennie Gibbs could be sentenced to life in prison because her daughter never took a breath.
As ProPublica reports, Gibbs was just 16 years old when she gave birth to a stillborn baby girl, who she named Samiya, back in 2006. Samiya was born premature, and medical records indicate that the umbilical cord was wrapped around her neck. But, since Samiya’s autopsy turned up traces of cocaine, Gibbs was indicted by a grand jury for “unlawfully, willfully, and feloniously” causing the death. If Gibbs receives the maximum sentence, she’ll spend the rest of her life behind bars.
Gibbs’ case is an example of a dangerous trend that’s certainly not specific to Mississippi. Across the country, there have been hundreds of documented cases of fetal harm laws being used to criminalize pregnant women. This is partly due to the proliferation of state-level abortion restrictions — since there are so many complicated regulations stipulating how women may legally end a pregnancy, that’s created a world in which miscarriages can fall under increased scrutiny, and desperate women can face charges for resorting to illegal abortions. But it’s largely due to persistent issues with this country’s War on Drugs.
In the 1980s, when crack cocaine use became more widespread, the media stoked unfounded fears about cocaine’s damaging effects on unborn children in the womb. According to the national media watch group Fairness and Accuracy in Reporting (FAIR), “few media fabrications have been as invidious, persistent or politically devastating as that of the so-called ‘crack baby.'” Eager to demonstrate that they were tough on drugs, prosecutors began going after pregnant women for using drugs because they were an easy target.
But it’s not even clear that cocaine actually harms fetuses in the first place. Several large studies into the subject have found that there’s no difference in long-term health outcomes between children who were exposed to cocaine in the womb and children who were not. Researchers agree that health disparities among children should actually be attributed to poverty, not to drug use.
Nonetheless, these cases persist. A routine prenatal checkup for a pregnant woman in Wisconsin led to her arrest and involuntary 78-day stay at a drug treatment center. A teenager in Louisiana was charged with feticide after she gave birth to a stillborn baby and admitted she had snorted cocaine a few days earlier. Officials in Pennsylvania removed a woman’s newborn child from her after she tested positive for opiates, which ended up being a false positive due to eating a salad with poppy seeds. Several hospitals in New York City that serve primarily low-income patients were exposed for regularly drug testing new mothers.
National Advocates for Pregnant Women (NAPW) and the American Civil Liberties Union (ACLU) have fought against these efforts to prosecute pregnant women for years, pointing out that — much like the criminal justice system’s response to crack cocaine as a whole — these laws disproportionately harm low-income people and communities of color. But not much has changed over the past several decades. For instance, Gibbs is a young black woman currently facing a potential lengthy legal battle in a state where black residents are three times more likely to go to jail for drug charges than their white counterparts.
And chipping away at pregnant women’s rights also threatens to undermine women’s access to legal abortion. The radical “personhood” movement, which seeks to outlaw all abortions by defining embryos as U.S. citizens, is hoping to find a foothold by strengthening state laws that bring criminal charges against people who end a pregnancy. Many state legislatures are open to this policy. New Hampshire lawmakers are currently trying to increase the legal penalties for “negligence” that causes miscarriages and stillbirths.
From a public health standpoint, taking punitive measures against pregnant women who use drugs is actually incredibly counterproductive. When women are afraid of potential prosecution, they tend to skip out on prenatal care — something that actually leads to a greater risk of miscarriage, stillbirth, and infant death. That’s why the leading medical and public health groups, including the American Academy of Pediatrics and the American Medical Association, all oppose criminal laws targeting prenatal drug use.