Kentucky Rules Against “Pregnancy Prosecutions”

Amie Newman

The state supreme court of Kentucky ruled that Ida Cochrane could not be prosecuted for child abuse after she and her newborn tested positive for cocaine in 2005. "Pregnancy prosecutions" happen around the country, despite their unconstitutionality and the best medical evidence.

For more information straight from Lynn Paltrow, one of the leading advocates on this issue, check out her Reader Diary on Rewire!

On Friday, the state supreme court of Kentucky ruled in favor of Ida Cochrane, a pregnant woman prosecuted for “wanton endangerment”, a child abuse charge, when she and her newborn both tested positive for cocaine in 2005. The court ruled that Cochrane could not be prosecuted based on current state legislation, and an earlier trial court ruling, both of which prevent pregnant women struggling with substance abuse from being prosecuted for child abuse.

According to the ACLU attorney who filed an amicus brief in the case in support of Cochrane, in 1993 a law in Kentucky was passed which explicity states that you cannot use laws to “punish women struggling with substance abuse,” but prosecutors “wouldn’t be dissuaded” and brought a case against Cochrane anyway.

The ACLU became involved in the case for a variety of reasons. Not only was Ida Cochrane wrongfully prosecuted, but this is part of a larger problem, seen in recent decades in states around the country; criminally addressing substance abuse in pregnant women rather than providing care and services. Overwhelmingly, the evidence supports the best way to address addiction during pregnancy – for both mother and baby –  is through improved access to care and treatment and not through imprisonment and prosecution. As Alexis Kolbi-Molinas, attorney with the ACLU Reproductive Freedom Project, says, “Virtually every medical group in the country opposes these prosecutions and say they are bad for mothers and babies…”

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As the National Advocates for Pregnant Women (NAPW) notes,

The good news is that a surprisingly broad group of organizations oppose such arrests and prosecutions. Among these are the March of Dimes and the American Medical Association. They recognize that threatening women with arrest and frightening them away from treatment is bad for women and bad for babies. They understand that many of the women who come to police attention started to use drugs long before they became pregnant as a way of numbing the pain of violence and other trauma.

Because prosecutions don’t actually protect children, and because the only way a woman who has a drug problem can be sure to avoid arrest is to have an abortion, no state legislature in the country has actually passed a law making it a crime for a woman with a drug problem to continue her pregnancy to term.

It’s an issue that’s been addressed by state legislatures and courts in many states – including New Jersey, Illinois, Wisconsin, New Mexico, Florida and South Carolina. And in all of them legislatures have confirmed that criminal laws are not intended to be used in the relationship between a pregnant woman and her fetus. South Carolina is an example, however, of what happens when lawmakers believe they can use criminal prosecution to address health issues. Kolbi-Molinas calls the effect of South Carolina’s court rulings “devastating” as she relates the story from earlier this year of a pregnant woman struggling with mental illness. The woman tried to kill herself and ended up terminating her pregnancy. She was charged with manslaughter but rather than face jail time, she’s pleading guilty to the “crime.” It’s a case with terrifying consequences for pregnant women around the country.

This interview with Kolbi-Molinas provides excellent insight into why the issue of “pregnancy prosecutions” has a much broader effect, nationally. She notes that laws that seek to criminalize pregnant women’s addiction turn pregnant women into “public property” by restricting women’s lives and ability to function in society. She recalls laws from an earlier time, at the turn of the nineteenth century – a time when state laws reduced pregnant women to “second class citizens” by legislating that pregnant women could be kept off of juries, out of universities, or that women could only work a certain number of hours each day.

Constitutionally, notes Kolbi-Molinas, prosecuting pregnant women for substance abuse does not hold up. It denies women due process and opens the door for pregnant women to be prosecuted for anything that effects the health of their fetus. The advice pregnant women receive in this country about what can – and cannot – effect the health of their fetus changes dramatically. From moderate caffeine to absolutely no caffeine (it may cause a miscarriage!); from one glass of wine a day to no alcohol; exercising regularly to none at all. And, says Kolbi-Molinas, what about pregnant women who live in rural areas with limited access to prenatal care? Would we prosecute them for not seeing a health care provider? What if one of these things caused a miscarriage? Would we want her to be criminally charged? Says NAPW of cases like Cochrane’s and others:

“Liked or disliked, misunderstood or understood, their cases have huge legal implications for all pregnant women–potentially setting a devastating precedent that could establish special, separate legal rights for the fetus and the basis for punishing all pregnant women, including those who suffer miscarriages.”

Kolbi-Molinas pre-emptively dispels the notion that taking drugs during pregnancy is a different issue than too much exercising or improper prenatal care and should be addressed criminally instead of through public health channels:

“A lot of poeple hear these cases and say – well, drinkng wine and smoking and exercising are not illegal but taking drugs is. Why can’t we make a distinction there? This argument misses the point. We aren’t saying pregnant women are exempt from the same drug laws as everyone else – if she is found to be dealing or with illegal drug paraphernalia, she can be charged just the same as anyone else.” But, says Kolbi-Molinas, use alone [of drugs] is not a crime. Otherwise every overdose, or every visit to the emergency room would result in that person being thrown in jail. It’s the idea of making it a separate crime of being pregnant while using drugs which makes it unconstitutional, she says. 

Ultimately, the Kentucky Supreme Court’s opinion on Ida Cochrane’s case was clear. Prosecuting pregnant women for acts that may threaten the health of the fetus is a “slippery slope…whereby the law could be construed as covering the full-range of pregnant woman’s behavior – a plainly unconstitutional result that would, among other things, render the statutes void for vagueness.” Pregnant women who suffer alcohol addiction or substance abuse should be afforded access to care and services through public health channels. It’s the best way to balance the rights of the fetus with the rights of the pregnant woman. Criminally prosecuting pregnant women, however, is more than a slippery slope – it’s a dead-end.

News Health Systems

Complaint: Citing Catholic Rules, Doctor Turns Away Bleeding Woman With Dislodged IUD

Amy Littlefield

“It felt heartbreaking,” said Melanie Jones. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

Melanie Jones arrived for her doctor’s appointment bleeding and in pain. Jones, 28, who lives in the Chicago area, had slipped in her bathroom, and suspected the fall had dislodged her copper intrauterine device (IUD).

Her doctor confirmed the IUD was dislodged and had to be removed. But the doctor said she would be unable to remove the IUD, citing Catholic restrictions followed by Mercy Hospital and Medical Center and providers within its system.

“I think my first feeling was shock,” Jones told Rewire in an interview. “I thought that eventually they were going to recognize that my health was the top priority.”

The doctor left Jones to confer with colleagues, before returning to confirm that her “hands [were] tied,” according to two complaints filed by the ACLU of Illinois. Not only could she not help her, the doctor said, but no one in Jones’ health insurance network could remove the IUD, because all of them followed similar restrictions. Mercy, like many Catholic providers, follows directives issued by the U.S. Conference of Catholic Bishops that restrict access to an array of services, including abortion care, tubal ligations, and contraception.

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Some Catholic providers may get around the rules by purporting to prescribe hormonal contraception for acne or heavy periods, rather than for birth control, but in the case of copper IUDs, there is no such pretext available.

“She told Ms. Jones that that process [of switching networks] would take her a month, and that she should feel fortunate because sometimes switching networks takes up to six months or even a year,” the ACLU of Illinois wrote in a pair of complaints filed in late June.

Jones hadn’t even realized her health-care network was Catholic.

Mercy has about nine off-site locations in the Chicago area, including the Dearborn Station office Jones visited, said Eric Rhodes, senior vice president of administrative and professional services. It is part of Trinity Health, one of the largest Catholic health systems in the country.

The ACLU and ACLU of Michigan sued Trinity last year for its “repeated and systematic failure to provide women suffering pregnancy complications with appropriate emergency abortions as required by federal law.” The lawsuit was dismissed but the ACLU has asked for reconsideration.

In a written statement to Rewire, Mercy said, “Generally, our protocol in caring for a woman with a dislodged or troublesome IUD is to offer to remove it.”

Rhodes said Mercy was reviewing its education process on Catholic directives for physicians and residents.

“That act [of removing an IUD] in itself does not violate the directives,” Marty Folan, Mercy’s director of mission integration, told Rewire.

The number of acute care hospitals that are Catholic owned or affiliated has grown by 22 percent over the past 15 years, according to MergerWatch, with one in every six acute care hospital beds now in a Catholic owned or affiliated facility. Women in such hospitals have been turned away while miscarrying and denied tubal ligations.

“We think that people should be aware that they may face limitations on the kind of care they can receive when they go to the doctor based on religious restrictions,” said Lorie Chaiten, director of the women’s and reproductive rights project of the ACLU of Illinois, in a phone interview with Rewire. “It’s really important that the public understand that this is going on and it is going on in a widespread fashion so that people can take whatever steps they need to do to protect themselves.”

Jones left her doctor’s office, still in pain and bleeding. Her options were limited. She couldn’t afford a $1,000 trip to the emergency room, and an urgent care facility was out of the question since her Blue Cross Blue Shield of Illinois insurance policy would only cover treatment within her network—and she had just been told that her entire network followed Catholic restrictions.

Jones, on the advice of a friend, contacted the ACLU of Illinois. Attorneys there advised Jones to call her insurance company and demand they expedite her network change. After five hours of phone calls, Jones was able to see a doctor who removed her IUD, five days after her initial appointment and almost two weeks after she fell in the bathroom.

Before the IUD was removed, Jones suffered from cramps she compared to those she felt after the IUD was first placed, severe enough that she medicated herself to cope with the pain.

She experienced another feeling after being turned away: stigma.

“It felt heartbreaking,” Jones told Rewire. “It felt like they were telling me that I had done something wrong, that I had made a mistake and therefore they were not going to help me; that they stigmatized me, saying that I was doing something wrong, when I’m not doing anything wrong. I’m doing something that’s well within my legal rights.”

The ACLU of Illinois has filed two complaints in Jones’ case: one before the Illinois Department of Human Rights and another with the U.S. Department of Health and Human Services Office for Civil Rights under the anti-discrimination provision of the Affordable Care Act. Chaiten said it’s clear Jones was discriminated against because of her gender.

“We don’t know what Mercy’s policies are, but I would find it hard to believe that if there were a man who was suffering complications from a vasectomy and came to the emergency room, that they would turn him away,” Chaiten said. “This the equivalent of that, right, this is a woman who had an IUD, and because they couldn’t pretend the purpose of the IUD was something other than pregnancy prevention, they told her, ‘We can’t help you.’”

News Human Rights

What’s Driving Women’s Skyrocketing Incarceration Rates?

Michelle D. Anderson

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

Local court and law enforcement systems in small counties throughout the United States are increasingly using jails to warehouse underserved Black and Latina women.

The Vera Institute of Justice, a national policy and research organization, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge initiative, released a study last week showing that the number of women in jails based in communities with 250,000 residents or fewer in 2014 had grown 31-fold since 1970, when most county jails lacked a single woman resident.

By comparison, the number of women in jails nationwide had jumped 14-fold since 1970. Historically, jails were designed to hold people not yet convicted of a crime or people serving terms of one year or less, but they are increasingly housing poor women who can’t afford bail.

Eighty-two percent of the women in jails nationwide find themselves there for nonviolent offenses, including property, drug, and public order offenses.

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Overlooked: Women and Jails in an Era of Reform,” calls attention to jail incarceration rates for women in small counties, where rates increased from 79 per 100,000 women to 140 per 100,000 women, compared to large counties, where rates dropped from 76 to 71 per 100,000 women.

The near 50-page report further highlights that families of color, who are already disproportionately affected by economic injustice, poor access to health care, and lack of access to affordable housing, were most negatively affected by the epidemic.

An overwhelming percentage of women in jail, the study showed, were more likely to be survivors of violence and trauma, and have alarming rates of mental illness and substance use problems.

“Overlooked” concluded that jails should be used a last resort to manage women deemed dangerous to others or considered a flight risk.

Elizabeth Swavola, a co-author of “Overlooked” and a senior program associate at the Vera Institute, told Rewire that smaller regions tend to lack resources to address underlying societal factors that often lead women into the jail system.

County officials often draft budgets mainly dedicated to running local jails and law enforcement and can’t or don’t allocate funds for behavioral, employment, and educational programs that could strengthen underserved women and their families.

“Smaller counties become dependent on the jail to deal with the issues,” Swavola said, adding that current trends among women deserves far more inquiry than it has received.

Fred Patrick, director of the Center on Sentencing and Corrections at the Vera Institute, said in “Overlooked” that the study underscored the need for more data that could contribute to “evidence-based analysis and policymaking.”

“Overlooked” relies on several studies and reports, including a previous Vera Institute study on jail misuse, FBI statistics, and Rewire’s investigation on incarcerated women, which examined addiction, parental rights, and reproductive issues.

“Overlooked” authors highlight the “unique” challenges and disadvantages women face in jails.

Women-specific issues include strained access to menstrual hygiene products, abortion care, and contraceptive care, postpartum separation, and shackling, which can harm the pregnant person and fetus by applying “dangerous levels of pressure, and restriction of circulation and fetal movement.”

And while women are more likely to fare better in pre-trail proceedings and receive low bail amounts, the study authors said they are more likely to leave the jail system in worse condition because they are more economically disadvantaged.

The report noted that 60 percent of women housed in jails lacked full-time employment prior to their arrest compared to 40 percent of men. Nearly half of all single Black and Latina women have zero or negative net wealth, “Overlooked” authors said.

This means that costs associated with their arrest and release—such as nonrefundable fees charged by bail bond companies and electronic monitoring fees incurred by women released on pretrial supervision—coupled with cash bail, can devastate women and their families, trapping them in jail or even leading them back to correctional institutions following their release.

For example, the authors noted that 36 percent of women detained in a pretrial unit in Massachusetts in 2012 were there because they could not afford bail amounts of less than $500.

The “Overlooked” report highlighted that women in jails are more likely to be mothers, usually leading single-parent households and ultimately facing serious threats to their parental rights.

“That stress affects the entire family and community,” Swavola said.

Citing a Corrections Today study focused on Cook County, Illinois, the authors said incarcerated women with children in foster care were less likely to be reunited with their children than non-incarcerated women with children in foster care.

The sexual abuse and mental health issues faced by women in jails often contribute to further trauma, the authors noted, because women are subjected to body searches and supervision from male prison employees.

“Their experience hurts their prospects of recovering from that,” Swavola said.

And the way survivors might respond to perceived sexual threats—by fighting or attempting to escape—can lead to punishment, especially when jail leaders cannot detect or properly respond to trauma, Swavola and her peers said.

The authors recommend jurisdictions develop gender-responsive policies and other solutions that can help keep women out of jails.

In New York City, police take people arrested for certain non-felony offenses to a precinct, where they receive a desk appearance ticket, or DAT, along with instructions “to appear in court at a later date rather than remaining in custody.”

Andrea James, founder of Families for Justice As Healing and a leader within the National Council For Incarcerated and Formerly Incarcerated Women and Girls, said in an interview with Rewire that solutions must go beyond allowing women to escape police custody and return home to communities that are often fragmented, unhealthy, and dangerous.

Underserved women, James said, need access to healing, transformative environments. She cited as an example the Brookview House, which helps women overcome addiction, untreated trauma, and homelessness.

James, who has advocated against the criminalization of drug use and prostitution, as well as the injustices faced by those in poverty, said the problem of jail misuse could benefit from the insight of real experts on the issue: women and girls who have been incarcerated.

These women and youth, she said, could help researchers better understand the “experiences that brought them to the bunk.”

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