On Thursday, the Mississippi Supreme Court affirmed a lower court’s dismissal of an indictment against Nina Buckhalter, a Mississippi woman who suffered a stillbirth and was arrested in 2010 because of alleged drug use during her pregnancy. The decision is the latest in a string of prosecutions targeting women for failed pregnancies as conservative lawmakers look for more avenues to police pregnancy.
Prosecutors had charged Buckhalter with negligent culpable manslaughter, after she delivered a stillborn girl, Hayle Jade Buckhalter, in her 31st week of pregnancy. But a local judge threw out the case in 2012, finding some of the language in the manslaughter statute under which Buckhalter had been charged “vague and ambiguous” when applied to “a woman who has caused the miscarriage or stillbirth of her unborn child.” Prosecutors appealed, but the state supreme court said the indictment, which alleged Buckhalter willfully caused the death of the fetus, was flawed.
According to the justices, the underlying indictment failed to provide any information to back the state’s allegation that Buckhalter had “willfully, unlawfully, feloniously” killed the fetus “by culpable negligence.” Among the things prosecutors failed to disclose when they charged Buckhalter was “how Nina allegedly caused Hayle Jade’s death, but from the statements in other pleadings, we assume the State planned to prove at trial that she ingesting illegal drugs during the course of her pregnancy. And neither the indictment nor anything else in the record identifies the type of illegal drugs allegedly involved.”
While the ruling affirms the dismissal, it didn’t go as far as Buckhalter’s attorneys, Rob McDuff and the National Advocates For Pregnant Women, had hoped. The 15th Circuit Court Lamar County had backed the argument advanced by Buckhalter’s lawyer that the indictment should be dismissed, because the state’s manslaughter statute does not apply to a pregnant woman for the death of her unborn child. The lower court partially agreed and ruled the statute was “vague as to whether the legislature intended the term ‘other’ to be specifically inclusive of the pregnant woman herself as against her own unborn child.” But because the state supreme court found the underlying indictment “fatally flawed,” it dismissed the charges against Buckhalter without answering the question of whether or not the state’s manslaughter statutes can be used against pregnant women. That lack of resolution did not sit well with Mississippi Supreme Court Justice Leslie King, who authored a separate opinion stating that while he agreed with the outcome, the court should have addressed the merits of the case. The “decision places Buckhalter at risk of substantial injury—re-indictment and a possible trial and conviction,” King wrote. “Also with re-indictment, Buckhalter will have the same issue to present to the circuit court for resolution—whether she can be charged for murder of any kind under Mississippi statutes.” Justices James Kitchens and David Chandler joined that opinion.
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As noted by the National Women’s Law Center (NWLC), which filed an amicus brief on behalf of Buckhalter, while the prosecution Buckhalter’s case focused on a pregnant person’s alleged use of illegal drugs, nothing in the way the State of Mississippi read the statute would limit prosecutions to illegal activities. Under Mississippi’s theory of the case, a pregnant person could be prosecuted if they experienced a stillbirth after engaging in wholly lawful, “risky” activities during pregnancy. As detailed by the NWLC:
[T]his is by no means a theoretical threat. A pregnant woman in Wyoming was charged with felony child abuse for drinking alcohol, for example, and in Wisconsin, a sixteen-year-old was held in detention throughout her pregnancy based on her tendency ‘to be on the run’ and ‘lack of motivation or ability to seek medical care. Melissa Ann Rowland was charged with murder for refusing to submit to a cesarean section.
Buckhalter’s case in some ways represents the worst of the criminal justice system. Buckhalter didn’t face any drug charges herself, despite the fact that prosecutors believed it was her drug use that caused her stillbirth. Like Bei Bei Shuai, Buckhalter’s case demonstrates a need for social services intervention, not punitive criminal remedies. This has been known to the legal community for a long time now. Historically, courts across the country have soundly rejected prosecutions of women who continued their pregnancies in spite of drug or alcohol problems. But despite that long line of precedent, prosecutors across the country continue to try and prosecute women for failed pregnancies. Not surprisingly, many of these prosecutions are happening in states where abortion access is most under attack and most frequently target poor women and women of color. On that point, the only thing that’s exceptional about Buckhalter’s case is the outcome.
Since the Mississippi Supreme Court failed to address the ultimate question of whether or not the statute allows for prosecution of pregnant people, there is the chance that Buckhalter could be re-charged, but in order for prosecutors to successful charge her the second time around they must be able to disclose exactly how they believe Buckhalter is guilty of manslaughter, which they’ve been unable to do since 2010.