Analysis Maternity and Birthing

Holding Pregnant Women and Providers to a Dangerous, Unattainable Standard

Miriam Pérez

There is a disturbing trend on the rise in the U.S., one that crosses into many arenas — from legislation to insurance policy to our judicial system to the way individuals interact with their medical providers. The trend? Making women responsible for healthy birth outcomes and jailing them when they don't meet this unattainable standard.

As of today, Bei Bei Shuai is out on bail, thanks to the efforts of thousands of people who wrote on her behalf. Charges against her, however, are still pending and the prosecution of Bei Bei for feticide is still a reality. This issue is far from over. We will keep you updated.

There is a disturbing trend on the rise in the United States. It’s a trend that crosses into many arenas — from legislation to insurance policy to our judicial system to the way individuals interact with their medical providers.

This trend has the potential to seriously inhibit the rights of a major percentage of our population during portions of their life — turning their health and well-being into a matter of public concern and investigation, litigation, and incarceration.

The group? Pregnant women.

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This trend goes way farther than restrictions on abortion rights. This trend goes much farther than limitations on access to contraception, the morning after pill, RU 486. This trend goes farther than limitations on sex education.

The trend? Holding pregnant women responsible for guaranteeing a healthy pregnancy outcome.

Let me say this more plainly: women are at risk of being punished for not being able to guarantee a healthy birth.

Forget the fact that no one can guarantee a healthy pregnancy or birth. Pregnancy and birth have always involved death — an estimated 10 to 15 percent of pregnancies end in miscarriage. Stillbirths, early infant death, developmental problems, and disease have all have been a constant fact of life. Modern medicine has not solved any of these problems entirely — the best doctor in the world cannot guarantee a healthy pregnancy outcome for every woman.

So why are women being held to that unattainable standard?

As a society we have absorbed the myth that the right doctor and the right use of modern medicine can circumvent illness and death in pregnancy and birth. Some of the blame for this myth falls on doctors and the medical industry. Although new technologies, particularly developments in neonatal medicine, have significantly improved chances of survival for newborns, we still cannot guarantee a healthy pregnancy and birth outcome for every pregnancy.

Modern medicine makes a lot of promises, many of which cannot always be guaranteed. The result? Our incredibly litigious and destructive malpractice culture. The lack of trust among providers and patients, the promises that cannot be kept, plus the litigious streak of our society has created a culture of fear and financial burden within which the care of pregnancy and birth resides.

Just ride the New York City subway and it won’t take long to see an advertisement from a law firm looking for clients who believe a doctor is at fault for their child’s cerebral palsy, or other birth outcome.

Doctors have some protection from these standards — they have insurers who back them, employers who support them, and worse comes to worse, they might have to stop attending births, which many of them are choosing to do. Hospitals are shutting down maternity wards because they don’t want to deal with the costs. Midwives often feel the brunt of these penalties because they lack the protections that obstetricians have from professional associations and institutions. Some midwives even end up in jail.

But these expectations don’t stop with providers — they’ve now extended to women themselves, who do not have the support of insurers, or employers, to protect them when they fail to live up to these expectations. We also believe the myth that pregnant women can guarantee a healthy birth outcome.

If doctors are expected to perform heroic acts to save the lives of newborns, women are expected to do even more to make the impossible possible — often expected to put their own life and well-being on the line.

And the punishment for not achieving perfection in pregnancy and birth goes way beyond a lawsuit, a multi-million dollar settlement, or even the loss of employment. Increasingly, the punishment is imprisonment.

Bei Bei Shuai is a recent example. Shuai has been in prison for well over a year now, after a failed suicide attempt during her pregnancy (the result of a desperate depression resulting from abandonment by her partner) eventually ended in the death of her child three days after birth.

The Indiana Supreme Court just refused to hear Shuai’s appeal of the charges, meaning she will likely go on trial for murder under new feticide laws. The laws themselves were meant to target third parties who murdered or attempted to murder pregnant women—increasing the charges that could be brought against them because of the pregnancy. But Shuai’s case is the beginning of these laws being brought against the pregnant women themselves.

Shuai’s situation is an extreme example — but it’s not only the extreme cases that will fall into this trend.

We’ve already seen it with pregnant women who have been penalized for using drugs while pregnant. We’ve seen it with women who are imprisoned after labor when their children test positive for drug exposure — even if there are no apparent health problems.

Women aren’t just being expected to be perfect during pregnancy, expected to overcome any mental health, drug addiction or other difficult to overcome situations. Pregnant women are even expected to risk their own lives.

In 1987, Angela Carder was one of these women. She had battled terminal cancer since the age of 13, and 27 years later, cancer free, she decided to attempt a pregnancy. When at 27 weeks they discovered a tumor in her lung, aggressive cancer treatment was begun. At some point during her hospitalization, though, hospital administrators stepped in and forced her doctors to attempt a caesarean section — even though Angela didn’t want to risk the surgery, which her doctors said might kill her. A court order forced the c-section anyway and Angela and the child both died as a result. The courts eventually ruled in her favor — but of course for Angela it was too late. And unfortunately for us, the legal climate for these cases has only worsened in recent decades.

The reason I harp on this trend is this: if we don’t see the kind of unreasonable standard to which we as a society are holding pregnant women and their caregivers, we won’t ever have a chance of fighting the many efforts that enforce and penalize those who fail to meet these standards.

There are two things at play here. One is the unrealistic standard that any person — medical provider or pregnant woman — can guarantee that every pregnancy will end in a healthy birth. Second is the issue of autonomy for pregnant women. These women are expected to put aside their own life, health and desires in order to prioritize this standard. Now failing to meet these expectations can actually land you in prison.

We must both understand that pregnancy and childbirth are complicated, complex life processes that, despite all our medical advances, cannot be controlled. That understanding, while difficult, sad and hard to accept, might ease our compulsion to police both providers and pregnant women when the outcomes are not ideal. We must accept that death, disease, and imperfection is likely. We must adapt to these realities with support for families and providers.

Second, we must also understand that pregnancy does not remove an individual woman’s autonomy. Whatever we might think of an individual’s decisions while pregnant—she is an independent being with all the rights afforded to such an individual. Her pregnancy does not negate that.

We are entering a truly frightening phase of policing and criminalization for pregnancy and birth. Both women and providers are being held to an absolutely unrealistic and unattainable standard — no one can guarantee a healthy pregnancy outcome, and the project of assigning blame when such an outcome is not achieved is absolutely hazy at best.

The real question underlying all of this is: What good comes from incarcerating providers or pregnant women who do not guarantee healthy pregnancy outcomes? It does nothing to improve the likelihood of perfect pregnancy outcomes, and in the end we simply send the message to women that they will be penalized for doing what even God cannot do — prevent death and illness in pregnancy. 

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.”

Culture & Conversation Family

‘Abortion and Parenting Needs Can Coexist’: A Q&A With Parker Dockray

Carole Joffe

"Why should someone have to go to one place for abortion care or funding, and to another place—one that is often anti-abortion—to get diapers and parenting resources? Why can’t they find that support all in one place?"

In May 2015, the longstanding and well-regarded pregnancy support talkline Backline launched a new venture. The Oakland-based organization opened All-Options Pregnancy Resource Center, a Bloomington, Indiana, drop-in center that offers adoption information, abortion referrals, and parenting support. Its mission: to break down silos and show that it is possible to support all options and all families under one roof—even in red-state Indiana, where Republican vice presidential candidate Gov. Mike Pence signed one of the country’s most restrictive anti-abortion laws.

To be sure, All-Options is hardly the first organization to point out the overlap between women terminating pregnancies and those continuing them. For years, the reproductive justice movement has insisted that the defense of abortion must be linked to a larger human rights framework that assures that all women have the right to have children and supportive conditions in which to parent them. More than 20 years ago, Rachel Atkins, then the director of the Vermont Women’s Center, famously described for a New York Times reporter the women in the center’s waiting room: “The country really suffers from thinking that there are two different kinds of women—women who have abortions and women who have babies. They’re the same women at different times.”

While this concept of linking the needs of all pregnant women—not just those seeking an abortion—is not new, there are actually remarkably few agencies that have put this insight into practice. So, more than a year after All-Options’ opening, Rewire checked in with Backline Executive Director Parker Dockray about the All-Options philosophy, the center’s local impact, and what others might consider if they are interested in creating similar programs.

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Rewire: What led you and Shelly Dodson (All-Options’ on-site director and an Indiana native) to create this organization?

PD: In both politics and practice, abortion is so often isolated and separated from other reproductive experiences. It’s incredibly hard to find organizations that provide parenting or pregnancy loss support, for example, and are also comfortable and competent in supporting people around abortion.

On the flip side, many abortion or family planning organizations don’t provide much support for women who want to continue a pregnancy or parents who are struggling to make ends meet. And yet we know that 60 percent of women having an abortion already have at least one child; in our daily lives, these issues are fundamentally connected. So why should someone have to go to one place for abortion care or funding, and to another place—one that is often anti-abortion—to get diapers and parenting resources? Why can’t they find that support all in one place? That’s what All-Options is about.

We see the All-Options model as a game-changer not only for clients, but also for volunteers and community supporters. All-Options allows us to transcend the stale pro-choice/pro-life debate and invites people to be curious and compassionate about how abortion and parenting needs can coexist .… Our hope is that All-Options can be a catalyst for reproductive justice and help to build a movement that truly supports people in all their options and experiences.

Rewire: What has been the experience of your first year of operations?

PD: We’ve been blown away with the response from clients, volunteers, donors, and partner organizations …. In the past year, we’ve seen close to 600 people for 2,400 total visits. Most people initially come to All-Options—and keep coming back—for diapers and other parenting support. But we’ve also provided hundreds of free pregnancy tests, thousands of condoms, and more than $20,000 in abortion funding.

Our Hoosier Abortion Fund is the only community-based, statewide fund in Indiana and the first to join the National Network of Abortion Funds. So far, we’ve been able to support 60 people in accessing abortion care in Indiana or neighboring states by contributing to their medical care or transportation expenses.

Rewire: Explain some more about the centrality of diaper giveaways in your program.

PD: Diaper need is one of the most prevalent yet invisible forms of poverty. Even though we knew that in theory, seeing so many families who are struggling to provide adequate diapers for their children has been heartbreaking. Many people are surprised to learn that federal programs like [the Special Supplemental Nutrition Program for Women, Infants, and Children or WIC] and food stamps can’t be used to pay for diapers. And most places that distribute diapers, including crisis pregnancy centers (CPCs), only give out five to ten diapers per week.

All-Options follows the recommendation of the National Diaper Bank Network in giving families a full pack of diapers each week. We’ve given out more than 4,000 packs (150,000 diapers) this year—and we still have 80 families on our waiting list! Trying to address this overwhelming need in a sustainable way is one of our biggest challenges.

Rewire: What kind of reception has All-Options had in the community? Have there been negative encounters with anti-choice groups?

PD: Diapers and abortion funding are the two pillars of our work. But diapers have been a critical entry point for us. We’ve gotten support and donations from local restaurants, elected officials, and sororities at Indiana University. We’ve been covered in the local press. Even the local CPC refers people to us for diapers! So it’s been an important way to build trust and visibility in the community because we are meeting a concrete need for local families.

While All-Options hasn’t necessarily become allies with places that are actively anti-abortion, we do get lots of referrals from places I might describe as “abortion-agnostic”—food banks, domestic violence agencies, or homeless shelters that do not have a position on abortion per se, but they want their clients to get nonjudgmental support for all their options and needs.

As we gain visibility and expand to new places, we know we may see more opposition. A few of our clients have expressed disapproval about our support of abortion, but more often they are surprised and curious. It’s just so unusual to find a place that offers you free diapers, baby clothes, condoms, and abortion referrals.

Rewire: What advice would you give to others who are interested in opening such an “all-options” venture in a conservative state?

PD: We are in a planning process right now to figure out how to best replicate and expand the centers starting in 2017. We know we want to open another center or two (or three), but a big part of our plan will be providing a toolkit and other resources to help people use the all-options approach.

The best advice we have is to start where you are. Who else is already doing this work locally, and how can you work together? If you are an abortion fund or clinic, how can you also support the parenting needs of the women you serve? Is there a diaper bank in your area that you could refer to or partner with? Could you give out new baby packages for people who are continuing a pregnancy or have a WIC eligibility worker on-site once a month? If you are involved with a childbirth or parenting organization, can you build a relationship with your local abortion fund?

How can you make it known that you are a safe space to discuss all options and experiences? How can you and your organization show up in your community for diaper need and abortion coverage and a living wage?

Help people connect the dots. That’s how we start to change the conversation and create support.

This interview has been edited for length and clarity.

CORRECTION: This article has been updated to clarify the spelling of Shelly Dodson’s name.

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