Analysis Law and Policy

Feticide Laws Advance ‘Personhood,’ Punish Pregnant Women

Imani Gandy

When viewed as part of this ”fetus first” landscape, fetal homicide laws quite plainly seek to exploit tragedies like that suffered by Heather Surovik in order to pursue an anti-choice agenda, which champions so-called personhood and seeks to eliminate safe abortion care access.

When a drunk driver slammed into Heather Surovik’s car in July 2012, Heather and her mother were badly injured but survived. Heather was due to give birth in just a few days to a boy she’d already named Brady, but he died at birth from injuries sustained in the crash.

The drunk driver faced numerous charges for the accident—vehicular assault, leaving the scene of an accident, and driving under the influence—but did not face any charges for Brady’s death.

Colorado law provides that defendants can be convicted for specified offenses against pregnant victims if those defendants knew or reasonably should have known that the victim was pregnant. Colorado law also requires that a baby be born and take a breath before it can be considered a “person.” Neither circumstance applied to the Surovik tragedy, however. “They had told us he has this charge, this charge, this charge and that there was no charge for Brady,” Surovik explained to KOAA.com.

In response to this tragedy, a law named in Brady’s memory will be one of the ballot measures considered by Colorado voters this year. The Brady Amendment is a measure being couched as a fetal homicide statute, and would require “person” and “child” in the Colorado Criminal Code and the Colorado Wrongful Death Act to include “unborn human beings.” It would punish the killing of a fetus in circumstances similar to what happened to Brady and Heather Surovik. It would also, however, introduce the legal status of “personhood” into law in a state where voters have twice rejected ballot measures to establish just such status.

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Fetal homicide laws are common in the United States, with 38 states now reporting such statutes on their books. Frequently, the laws are introduced in the wake of an incident like the accident that killed Brady Surovik, or the killing of Laci Peterson who, at seven-and-a-half-months pregnant, was brutally murdered by her husband Scott.

These laws differ significantly between states. According to the National Conference of State Legislatures, 23 of the 38 states that have passed fetal homicide laws apply those laws to the earliest stages of pregnancy. In some states like California, existing homicide statutes have been amended to include fetuses as possible victims. Other states have enacted statutes defining a fetus as a “person” or “human being,” thus making applicable penalties for harm to a born person equally applicable to a fetus. Others have followed in the footsteps of Congress—which, in the wake of Laci Peterson’s murder, passed the Unborn Victims of Violence Act—and have enacted statutes to penalize a new crime of “injury to a fetus.” And still other states provide that pregnant women and families of victims can sue offenders for wrongful death.

Many such feticide laws are not, as drafted, incompatible with a woman’s choice to terminate a pregnancy. Indeed, the majority of states that have passed feticide laws expressly exempt abortion and do not punish a pregnant woman’s actions. As such, these laws have, in the past, been welcomed by pro-choice activists who view them as consistent with protecting a mother’s relationship with a wanted pregnancy.

Farah Diaz-Tello, staff attorney at National Advocates for Pregnant Women (NAPW), regards such views as naive, however. “It’s really optimistic or overly generous to think that the laws as created are not intended to create ‘personhood,’” she told Rewire. “I think that the Brady Amendment is one of the laws that makes that the most clear, and that’s only because we have the conservative smoking gun; and that’s the admission that yes, this is a ‘personhood’ law.”

“This is part of a concerted effort to create ‘personhood’ in as many places in the law as possible,” she added.

The rush to establish “personhood” and the enthusiasm for protecting fetuses above all else has perverted the stated purpose of fetal homicide laws. Once intended to protect fetuses and provide to pregnant women and their families a legal remedy for wrongful death, fetal homicide laws are being misused by overzealous prosecutors and judges to trample women’s rights in favor of the nebulous personhood rights of fertilized eggs, embryos, and fetuses. These nebulous personhood rights even include the right of a fetus to be free from any potential harm in utero. Accordingly, women who engage in stigmatized behavior—like drug or alcohol use—are finding themselves incarcerated and arrested, charged under fetal homicide laws that were specifically not intended to criminalize their behavior or punish them.

“A prosecutor on a mission can change the law just by charging until it sticks, and hoping that the court will engage in judicial activism and allow laws that explicitly say that they won’t be used against pregnant women to be used against pregnant women,” explained Diaz-Tello. Indeed, a recent study by NAPW Executive Director Lynn Paltrow and Jeanne Flavin, a sociology professor at Fordham University, found 413 cases in which laws intended to protect fetuses have been used to arrest, prosecute, and detain women, or to force them to submit to medical intervention.

Tragic cases like that of Bei Bei Shuai, whose attempted suicide resulted in the death of her newborn daughter, illustrate the point.

Shuai was charged under Indiana’s feticide statute, despite the fact that at the time of her death her daughter Angel was not a fetus, and Indiana’s feticide statute was not intended to criminalize the behavior of pregnant women. Even though Shuai’s daughter was born and lived for several days before dying, attorneys for the State of Indiana proceeded with the case anyway, with a stamp of approval from the state judge who refused to dismiss the charges against Shuai. (Shuai eventually plead guilty to criminal recklessness.)

This perversion of laws intended to protect the rights of women and children extends beyond the fetal homicide context; criminal laws are being used to establish separate legal rights for eggs, embryos, and fetuses even in cases where state legislatures did not intend such a result.

In Alabama, for instance, a judge contorted a chemical endangerment statute to affirm the conviction of Amanda Kimbrough even though the statute under which Kimbrough was prosecuted criminalized exposing a child to controlled substances and was specifically not intended to address the behavior of pregnant women or to apply to fetuses in utero. The judge in Kimbrough’s case ignored the plain language of the statute, as well as the legislature’s repeated failure to amend the existing statute so that it would apply to drug use by pregnant women, and cemented the prosecution’s efforts to expand the law beyond what it was intended to cover.

In a stunning display of judicial activism in Ohio, a state judge used quasi-“personhood” language in the Criminal Code to allow prosecutors to move forward with a case charging Astasia Clemons with “corrupting another with drugs,” even though the law specifically excluded pregnant women from the class of individuals who can be prosecuted under the law. The judge in Clemons’ case reasoned that “another” could also mean “person,” and that “person” could be defined as “an unborn human who is viable.” Inexplicably, the judge ignored that in enacting the law, the legislature expressly exempted pregnant women from prosecution.

These are but two of myriad examples throughout the country of prosecutors and judges going well beyond what a particular law allows and criminalizing pregnant women, stripping women of the right to decide how their pregnancy should proceed, and using draconian tactics against grief-stricken women in the wake of bad pregnancy outcomes.

In some states, efforts to criminalize the behavior of pregnant women and prioritize the rights of the “unborn” over the rights of women are more blatant and far more insidious. In Wisconsin, for example, Alicia Beltran is being involuntarily detained under a statute that, under certain circumstances, gives courts “original jurisdiction over fertilized eggs, embryos, and pregnant women at all stages of pregnancy where the pregnant woman ‘habitually lacks self-control’ in the use of alcohol or controlled substances.” Such approaches demonstrate a woeful lack of understanding about drug addiction and prenatal and maternal health, but underscore concerns that when it comes to pregnancy, the trend seems to be to do whatever it takes to protect the “unborn child” at every stage of development, even at the expense of the woman carrying it.

When viewed as part of this “fetus first” landscape, fetal homicide laws quite plainly seek to exploit tragedies like that suffered by Heather Surovik in order to pursue an anti-choice agenda, which champions “personhood” and seeks to eliminate safe abortion care access.

After the Surovik tragedy, Colorado state Rep. Janak Joshi (R-Colorado Springs) sponsored HB 1130, a bill proposed in 2012 that would have created a new class of crime victim: “an unborn member of the species Homo sapiens.” Rep. Joshi touted the legislation as being about victim’s rights and protecting pregnant women. State Rep. Cherylin Peniston (D-Westminster), on the other hand, expressed concerns that Joshi’s bill was a naked attempt to circumvent the will of the people and impose “personhood” on Colorado. The bill failed.

A short time later, state Rep. Mark Waller (R-Colorado Springs) introduced the Crimes Against an Unborn Child Act, an abortion-neutral bipartisan effort to establish the crime of fetal homicide. The policy would have brought justice to women like Heather Surovik without establishing “personhood.” Nevertheless, Colorado Right to Life and National Right to Life, along with Surovik herself, opposed the bill because of a single line:

Nothing in this article … shall be construed to confer the status of ‘person’ upon the human embryo, fetus, or unborn child at any stage of development prior to life birth.

The bill failed.

The fierce opposition of Right to Life groups to the Crimes Against Unborn Child Act is damning evidence that the true purpose of HB 1130 and similar fetal homicide laws is to punish pregnant women and establish “personhood,” and not to punish drunk drivers or violent offenders who cause the death of an infant.

The Brady Amendment, spearheaded by Surovik and backed by Personhood USA, followed soon after Rep. Waller’s failed effort, and laid to rest any doubts that these sorts of laws are simply about victim’s rights and protecting women. “The Brady Amendment is a good example of a law being couched as a feticide law but which is outwardly being touted as a ‘personhood’ law,” said Diaz-Tello of NAPW.

“This is an effort to spread ‘personhood’ in so many states that by the time Roe v. Wade is considered, the right to abortion will be seen as an anomaly,” she added.

That Colorado rejected “personhood” measures in 2008 and 2010 may provide some comfort to those in Colorado who oppose the 2014 measure. Still, the zeal for such legislation has not been dampened, nor have anti-choice efforts to restrict abortion out of existence. As such, any legislation touted by anti-choice advocates as “protecting women” should be examined closely for alternative consequences that actually harm women.

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.”

News Human Rights

Migrants in Border Patrol Facilities Endure ‘Inhumane,’ ‘Unconstitutional’ Treatment

Tina Vasquez

These processing centers have been found to be unsuitable for overnight detention, as they do not have beds. The centers “are extremely cold, frequently overcrowded, and routinely lack adequate food, water, and medical care," according to a 2015 report from the American Immigration Council.

An Arizona district court on Thursday released photos of Border Patrol processing centers that show the “inhumane and unconstitutional” treatment of migrants in these facilities.

The release comes after a months-long legal battle between Border Patrol and the National Immigration Law Center, the American Immigration Council, and the American Civil Liberties Union (ACLU) of Arizona.

The images were taken from security footage and are exhibits in an ongoing lawsuit against the agency. Taken within eight Arizona facilities, spanning Nogales, Douglas, Naco, Casa Grande, and Tucson, it is one of the rare instances Border Patrol has been forced to share images from its holding cells.

Known as as hieleras–or iceboxes–by migrants because of their frigid temperature, those detained in the holding cells are given nothing to stay warm but “Mylar blankets,” which are easily torn, foil-like sheets. In one photo, a mother changes her baby’s diaper on top of Mylar sheets on the concrete floor, surrounded by garbage. In another image taken from the processing center in Tucson, migrants are wrapped in Mylar sheets huddled together on the concrete floor. The cell is so crowded that there is no room to move.

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These processing centers have been found to be unsuitable for overnight detention, as they do not have beds. The centers “are extremely cold, frequently overcrowded, and routinely lack adequate food, water, and medical care,” according to a 2015 report from the American Immigration Council.

The facilities are intended to temporarily detain immigrants while their criminal records are checked, their fingerprints are taken, and the next step in their case is determined. U.S. Customs and Border Protection (CBP), Border Patrol’s parent agency, has no statutes or regulations governing short-term facilities.

CBP has internal guidance regarding standards, specifications, and the operation of its facilities, including setting limits on the maximum length of time that a person should be held in a holding cell.

A 2008 CBP memorandum revealed that “a detainee should not be held for more than 12 hours” and should be moved “promptly.” A new American Immigration Council study, released in conjunction with the security footage photos, found that migrants are routinely kept overnight in poor conditions.

Using government data obtained through the Freedom of Information Act (FOIA), the American Immigration Council found that Border Patrol regularly uses these facilities to detain people for prolonged periods.

“Over 80 percent of people detained by the Border Patrol in its Tucson Sector are held for over 24 hours, meaning that men, women and children are forced to sleep on concrete floors and hard benches in holding cells that lack beds and are not equipped for sleeping,” the organization reported.

Analyzing data on almost 327,000 immigrations from September 2014 to August 2015, the study reports that in the southwest Border Patrol sectors, 67 percent of detained immigrants were held in Border Patrol facilities for 24 hours or more. Almost 30 percent were held for 48 hours or more and 14 percent for 72 hours or more.

The American Immigration Council said the facilities’ conditions violate CBP’s policies and are alleged to violate the U.S. Constitution. Migrants endure freezing temperatures and are forced to sit and sleep on cold, concrete floors. According to CBP guidelines, those detained should be provided with snacks and meals, be given access to potable drinking water, should have access to bathrooms and toilet items, and be given necessary medical attention.

Agents must make “reasonable efforts” to provide a shower for detainees held for more than 72 hours and ensure detention cells are regularly cleaned and sanitized.

Evidence and testimonies gathered by the American Immigration Council found that migrants receive little or no food or clean drinking water. One of the images released Thursday shows a man drinking directly from a lone plastic gallon of water, presumably the only source of water for all those detained in the cell. The organization also reports that migrants are forced to stay in “overcrowded and unsanitary holding cells without basic hygiene items; denied adequate medical screening or care; denied communication with family members, legal counsel, or consulates; and coerced into signing deportation papers.”

The American Immigration Council’s findings add to accusations of inhumane treatment, abuse, and constitutional violations made by Border Patrol against migrants, including the abuse of children and significantly high rates of sexual misconduct. It remains unknown if Border Patrol will change its practices concerning the inhumane treatment of migrants in its custody.

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