Pregnant Women in America Are Being Prosecuted for Losing Their Babies
Inadvertently kill your unborn child and you could face a murder charge.
In 2006, 15-year-old Rennie Gibbs' unborn child died after 36 weeks. An autopsy of the foetus showed traces of a metabolite of cocaine. Her doctors informed the authorities that she had tested positive for drugs while pregnant and she was arrested on a charge of “depraved heart murder” – a US legal phrase used when it's alleged that a "callous disregard for human life" has resulted in death. For the last seven years, the case has bounced around in the Mississippi court system as her lawyers wage an extensive legal challenge. Today, Gibbs is still awaiting a trial that could yet send her to prison for life.
The abortion argument is one that has rumbled on noisily for over a century in the US. Gibbs' case isn't unrelated to the pro-life/pro-choice debate, but it's more of a grim sideshow to it, in which laws originally set up to punish third parties who attack pregnant women and cause miscarriages have been used to punish prospective mothers. Another recent example is that of Bei Bei Shuai, who was pregnant when she tried to commit suicide by swallowing rat poison in 2010. Though she survived, her baby Angel died days after birth and Shuai was charged with murder.
Relatively speaking, these two cases have attracted more attention because both women have pleaded not guilty. Many other women have not had the legal support to fight against their charges and have pleaded guilty in order to obtain reduced prison sentences. Either way, it seems callous to force a woman who's recently lost her baby to face criminal charges equivalent to murder.
After reading about Bei Bei's case in 2011, I wanted to know whether either of these women have had any kind of resolution to their traumas. Lynn Paltrow runs a non-profit organisation called National Advocates for Pregnant Women, based in New York. While it’s a small organisation, it’s talking on a national level, getting involved in legal proceedings as well as educating young women so they are aware of their rights. She also campaigns against the personhood movement – a collection of pro-life groups seeking to establish separate constitutional rights for fertilised eggs, embryos and foetuses in America.
VICE: Can you tell me a little about how you became involved in helping out women like Bei Bei?
Lynn Paltrow: I founded National Advocates for Pregnant Women 11 years ago. I started out defending women’s rights to choose to have an abortion, then started getting cases where the American anti-abortion argument was also being used to hurt women who had no intention of ending a pregnancy.
What sort of cases?
I had a case in California in which a baby was born alive but then died. The mother was charged, the claim being that she'd been using illegal drugs and had intercourse with her husband on the day of delivery. It turned out there was no issue of drug use and, according to an investigative report, she'd been subject to serious physical abuse by her husband. In the past he had been arrested but had never been prosecuted for brutally beating her.
Is there a long history of this kind of thing in the US?
Yes. In 1987, Angela Carder, a 27-year-old woman who was 25 weeks pregnant, became critically ill. Although she, her family and doctors agreed she should be kept alive for as long as possible, the hospital called an emergency hearing to determine whether Ms Carder could be forced to have caesarean surgery to save the foetus. A lawyer was appointed for the foetus, as if it were already separate from her. Although it was understood that forcing Ms Carder to undergo the surgery could kill her, courts decided in the space of an afternoon that they had an obligation to give the foetus a chance for life. The foetus was born alive but died two hours later. Angela Carder died two days later, with the caesarean surgery listed as a contributing factor.
The personhood movement is campaigning for laws that give rights to unborn children. These haven’t been passed in any state yet, so how are women like Bei Bei Shuai and Rennie Gibbs being punished with charges equal to murder?
Currently, 38 states in the US have foeticide laws. The plan is to get the notion of separate rights for fertilised eggs established in as many different places as they can and then point to those laws as the basis for overturning Roe v Wade and depriving pregnant women of their personhood. Bei Bei tried to commit suicide. She survived, but her baby didn’t. She was charged under what? She was charged under the state’s murder of a viable foetus law and its attempted foeticide law! These laws were passed in response to violence against women. If you look at the legislative history, it's very clear that it was only meant to punish third parties.
Attempting suicide in Indiana is not a crime. There is no exception for pregnant women. The prosecutor can’t rewrite these laws to make them applicable to a suicidal pregnant woman. But of course their response is “Oh yes, we can.” So, foeticide laws were passed in the wake of violence against pregnant women – those are being used as the primary argument for essentially doing state violence against pregnant women, by arresting them, rather than the people who beat them up.
(A pro-life campaigner in Sarasota, Florida. Image via)
So Bei Bei Shaui is coming to trial in the coming months?
That is correct.
Are you actively working in that case, do you know what the likely outcome of that trial is or what she is pleading?
We have been very involved, along with the lawyer Linda Pence in Indiana, in the efforts to get her charges dismissed.
What is the likely outcome?
I don’t know what the outcome will be. What I do know is that no woman who has suffered a pregnancy loss should be put on trial for murder.
Can you tell me about her time in prison?
What people don’t understand is that if you get charged with murder, it’s unlikely you’ll be released on bail. They don’t have to let you out while the case is pending; no matter how long that takes. We eventually helped get Bei Bei out on bail but that was the first time a person in Indiana was released from jail pending a murder trial since the 1800s.
How long was she in prison for?
Over a year, in a county jail.
Right now, Shuai has been released but she has to pay around $12 a day for the electronic monitor on her ankle.
How long has that been on her leg?
A year. We helped get her out of jail about a year ago and she has been living with that thing and having to personally pay for it.
That’s nearly $6000.
Yep. And that’s nothing to what the actual cost of her defence will be in the end. We’re a non-profit organisation, all the work we do on her behalf is free of charge, but for her counsel the costs are mounting up.
Was she provided with some trauma care or any mental health support by the judicial system?
Minimal health care is provided in county jails. You can't pretend someone is getting appropriate mental healthcare while you are traumatising them by locking them up after they’ve experienced a pregnancy loss and attempted suicide.
Bei Bei Shuai still has no resolution to her trauma and neither does Rennie Gibbs, now 21 and living in Mississippi. I spoke to Rob McDuff, a lawyer who is volunteering on Gibbs' case.
VICE: How long have you been working with Rennie and what was it about the case that made you want to defend her?
Rob McDuff: Since 2009. I think it's quite extreme to prosecute a teenager for murder and possibly send her to prison for the rest of her life because she suffered an unintentional stillbirth. The law shouldn't allow that. If someone like Rennie Gibbs can be prosecuted for allegedly taking drugs during her pregnancy, what about a pregnant woman who drinks or smokes or is overweight or doesn't follow all of her doctor's orders and suffers a stillbirth? Can she be prosecuted as well? This opens up a can of worms that could have far-reaching results.
How will Rennie plea?
She has pleaded not guilty.
The trial date keeps moving – why is this?
The legal and factual issues are so complicated that her lawyer requested several postponements to prepare her defence. A few months after being arrested, Ms Gibbs was released from jail on bail and remains out of jail. Once I got involved, we filed a very thorough motion to dismiss the charges on the grounds that a woman should not be prosecuted for a murder because she suffers a miscarriage or stillbirth, even if something she did or didn’t do during her pregnancy contributed to it.
What happened then?
When the trial judge denied our motion, we asked the Mississippi Supreme Court to review our legal argument prior to trial and dismiss the charges. The Mississippi Supreme Court agreed, and a long time was taken as both sides prepared and filed legal briefs, argued the case in court, and awaited a decision. Then, the Mississippi Supreme Court changed its mind and has chosen not to decide the issue prior to any trial. Now that we are back in the trial court, we have renewed our motions to dismiss. This has all taken a very long time. But we do not want to put Ms Gibbs through the trauma of a trial and a possible conviction without exhausting every opportunity to have the charges dismissed in advance.
The whole process sounds incredibly convoluted and laborious. How long do you think it will be before Rennie receives a final resolution?
Probably later this year or early next year. If she is convicted at that point, we will file an appeal and continue the fight to free her from the unjust charges.
How is Rennie Gibbs doing?
She is OK, all things considered. It has been difficult for her, as it would be for anyone in her position.
Follow Alison on Twitter: @Alisonsevers
Additional research by Elizabeth Rhodes.