A bill pre-filed in the New Jersey state legislature would criminalize the “use [of] a controlled dangerous substance or prescription drug while pregnant,” upgrading the offense from a misdemeanor to a felony for pregnant people.
Sponsored by a trio of Democratic Assembly members—Bob Andrzejczak (Atlantic/Cape May/Cumberland), Joseph A. Lagana (Bergen and Passaic), and R. Bruce Land (Atlantic/Cape May/Cumberland)—AB 774would amend a law concerning controlled substances and certain prescription drugs. The proposed measure states that a person who is found to be under the influence of these substances “for a purpose other than the treatment of sickness or injury as lawfully prescribed or administered by a physician is a disorderly person unless the person is pregnant during the commission of the offense, in which case it is a crime of the fourth degree.”
In New Jersey law, a felony is referred to as a “crime” and a crime of the fourth degree is punishable by a prison term of up to 18 months, a fine of up to $10,000, or both, while a misdemeanor is called a “disorderly person offense,” which carries a possible term of imprisonment of up to six months, or up to a $1,000 fine.
Advocates say the bill’s language is “blatantly discriminatory” toward pregnant people, and will deter them from seeking prenatal care and drug treatment.
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“My concern about this type of law is that it sets up a situation in which prosecutors get to decide who gets health care and who gets handcuffs,” Farah Diaz-Tello, senior staff attorney with the National Advocates for Pregnant Women, told Rewire in a phone interview. “This is one of the most resoundingly discriminatory statements we’ve ever seen.”
Diaz-Tello also said the bill, if passed, would “certainly fall most heavily on low-income women and women of color. People who don’t have access to private health care or private treatment for substance use are the ones who are going to get turned over to police.”
“Those who have the money and privilege to receive the type of care that will absolutely protect their confidentiality aren’t going to have to worry about the law, which is really about controlling certain groups of people,” she added.
Roseanne Scotti, the Drug Policy Alliance’s state director for New Jersey, said the bill raises concerns in a state like New Jersey where, by some estimates, “half the adults seeking drug treatment can’t get it because we simply don’t fund it at the level to create adequate access.”
Scotti explained in a phone interview with Rewire that the state does not properly track the number of people in need of drug treatment, yet it continues to incarcerate residents for drug use, and put up barriers for those seeking care, particularly those from marginalized communities.
“Finding drug treatment is particularly challenging for women in general, and low-income women of color in particular, because they often have families, [and] may have other children who they are the primary caretakers for,” Scotti said. “Many drug treatment centers won’t even take in a pregnant woman, and certainly won’t take in a woman with children, and so women end up having to fend for themselves. The way to address this issue is to remove these barriers, not criminalize pregnant women.”
Both Scotti and Diaz-Tello suggested that the proposed bill likely will not go far.
“This is a very unusual bill,” Diaz-Tello explained, adding that, unlike the largely GOP-sponsored attempt to criminalize pregnant people and curtail reproductive autonomy nationwide, many of this legislation’s co-sponsors are Democrats. “One of them, Assembly member Valerie Vainieri Huttle, recently sponsored New Jersey’s anti-shackling bill and … has [pushed] for protections for breastfeeding parents and a Maternity Care Report Card that requires reporting of cesarean and vaginal birth rates at the hospital level—so I have high hopes that when people like her see the pushback they’re going to get from the medical and public health community, they’re going to re-think their strategy.”
Diaz-Tello said the bill is likely based on the “misguided” notion that “some level of criminalization pushes people to get help through court-mandated drug treatment programs or other such measures.”
She said that approach is not borne out by medical research. Diaz-Tello pointed to statements by prominent voices within the health community, including the American Medical Association and the American Congress of Obstetricians and Gynecologists, that make clear pregnant patients tend to avoid seeking necessary prenatal care if they believe a health-care provider’s knowledge of their substance dependency, or other potentially harmful behaviors, could lead to jail sentences.
Scotti said she is hopeful that pressure from advocates will “prevent the bill from going anywhere.”
“But you never can tell—sometimes, things move when you don’t expect them to. If this does happen, it will certainly make women even more fearful and reluctant to seek prenatal care or drug treatment,” she said.
Almost three years ago, the State of Indiana first charged Purvi Patel with both feticide and neglect of a dependent following Patel’s home delivery of what state doctors testified was a 25-week-old fetus. Today, there is still no clear picture of the events leading up to those charges. Based on the conflicting evidence presented at Patel’s seven-day trial, it’s not clear what Patel knew about her pregnancy, including how far along she was. It’s not clear what exactly happened that day in Patel’s bathroom. And, most importantly, there is no clear picture of whether the delivery resulted in a live birth.
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But on Monday, lawyers from the state Attorney General’s Office argued to the Indiana Court of Appeals that none of those unknowns matter. Patel’s charges of feticide for unlawfully terminating her pregnancy and neglecting a live dependent were not contradictory. Quite simply, argued Indiana Deputy Attorney General Ellen Meilaender, if there’s evidence that a person’s conduct contributed to the death of a fetus or a severely prematurely infant born alive that then dies, that person faces possible felony prosecution both for feticide and criminal neglect of a dependent—setting a disturbing potential precedent for pregnant people throughout the state.
The Indiana feticide statute makes it a felony for a person to “knowingly or intentionally terminate a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus.” The statute is silent on whether a self-induced abortion falls under this category. Indiana prosecutors argue that it does and told the appeals court Monday that the jury verdict against Patel proved them right.
The state made a similar argument with Patel’s conviction for felony neglect of a dependent. According to the state, by taking abortion-inducing drugs, Patel created a situation that put her “dependent”—in other words, her fetus—in harm’s way. Once delivered alive, the state argued, Patel had a legal duty to immediately seek medical attention on its behalf, including clamping her umbilical cord immediately after delivery to prevent neonatal blood loss and calling 9-1-1 for emergency care. It made no difference, prosecutors said, that the medical evidence was contradictory as to whether there was a live birth at all, or what, if anything, Patel understood was happening at the time of the delivery.
Patel’s attorneys may disagree with the inferences made by the jury, state attorneys argued, but that doesn’t mean the law grants the court grounds to overturn the jury verdict.
It wasn’t clear to me at the end of oral arguments that the three-judge panel was buying the State’s argument. The judges pushed Meilaender hard on where the law should draw the line between taking nonprescribed abortion medications that produce a live birth where the baby then dies—as the state argued happened here—to drinking whiskey, smoking cigarettes, or taking any other host of actions that may help contribute to a miscarriage. The judges seemed to agree that it would be excessive to prosecute pregnant people for smoking, for example. The judges also appeared skeptical about the argument that the feticide statute doesn’t require the fetus to die in utero, and that even a live birth can and should be prosecuted under this statute if the accused person’s original intent was to terminate a pregnancy outside Indiana’s stringent legal abortion requirements.
But it also wasn’t clear they bought the argument of Patel’s attorney, Lawrence Marshall, that the state hadn’t met its burden of proof when it convicted her. Marshall stammered to keep the judges on point, refusing to answer whether federal constitutional precedent, from Roe v. Wade to Planned Parenthood v. Casey, would protect many other people from unchecked pregnancy policing under feticide laws. (Spoiler: The simple answer is no—as Tennessee, Mississippi, Alabama, and Arkansas, to name a few, show).
The heart of the state’s negligence case against Patel rests on her alleged failure to seek care for a live birth. Yet Marshall could not specifically and directly answer the judges’ concerns that Patel, after allegedly cutting the umbilical cord during delivery, should have also immediately clamped or kinked it to prevent any blood loss to the fetus she just delivered. He did not note that it is unreasonable to expect any woman immediately following an extremely premature delivery to have the presence of mind to do such things, lest she face felony prosecution. He tried to point out that there was medical testimony at trial that at 25 weeks, severely prematurely born infants have only modest survival rates even when born at hospitals and immediately transferred to neonatal intensive care units, and tried to argue the state couldn’t prove that Patel had any idea a live birth had even happened. But all those counters appeared to fall flat on a panel of judges clearly willing to consider, and perhaps even accept, that Patel’s failure to kink her umbilical cord and call 9-1-1 immediately post-delivery was sufficient to convict her for felony neglect of a dependent.
Throughout the trial and the appeal, the state compensated for its lack of direct evidence about the situation by trying to redirect the jury’s focus to Patel’s “character,” which, prosecutors argued, helped inform the decision to convict her. Patel was in a relationship with a married man. Evidence at trial showed she had been texting back and forth with a friend concerning the pregnancy and her desire to terminate it, in part because of fears her conservative Hindu family would not support her. That’s both sexually provocative and naive, argued the state in its appellate brief—provocative because she was acting outside religious and social norms, and naive because “family would have loved her regardless and would have welcomed the baby, as it is their religious belief to love a child even if born out of wedlock and their religion is opposed to killing anyone or anything.”
Meanwhile, the state argued, the evidence that should be weighed in Patel’s favor did not matter. That included evidence at trial that showed Patel believed she was only about 12 weeks pregnant—not about 25 weeks—when she took the unprescribed abortifacient. Not important, argued the state. All that matters is her fetus was old enough to fall outside Indiana’s limit on 20-week abortions. Evidence at trial showed that Patel tried, ultimately unsuccessfully, to navigate Indiana’s web of anti-choice restrictions before ordering abortion-inducing medications online; but that just demonstrates Patel had the right criminal intent to support the jury’s conviction, said Meilaender, not that those regulations are difficult for non-lawyers to navigate on their own.
In other words, argued Meilaender, the details that should normally be necessary to support a criminal conviction—details such as what Patel knew, and when—just don’t matter in this case.
Those details do matter. That’s why the U.S. Court of Appeals for the Ninth Circuit rejected nearly identical arguments in the prosecution of Jenni Linn McCormack, an Idaho woman who also terminated a pregnancy and was criminally prosecuted for it. Expecting patients to understand the intricacies of abortion restrictions or face criminal prosecution at its very core unduly burdens abortion rights, that court ruled.
It will likely be months before the Indiana Court of Appeals issues its opinion. And I’m not going to make any guesses about how this case turns out. But I will say that, despite all the unknowns in the Patel case, there are plenty of knowns that ultimately affect Patel and pregnant people in Indiana as a whole.
We know that Indiana law does not mandate sex education be taught in its schools. The Indiana Department of Education recommends its inclusion as part of a school’s comprehensive health education program. But that’s it. And for those schools that decide to offer some form of sex ed, there’s no requirement that the information provided be unbiased and medically accurate, let alone do anything other than stress abstinence-only sex ed. And of course, parents in Indiana have the option of opting out of sex ed entirely for their children should they so choose.
We also know that legal abortion in Indiana is extensively and severely restricted. First, any person seeking an abortion must receive state-mandated counseling that includes information designed to discourage the patient from having an abortion. That counseling must be done in person. Indiana law then requires a patient to wait an additional 18 hours after that counseling session before an abortion can be performed. That means, effectively, patients must make two separate trips to an abortion clinic to have the procedure. A patient must also undergo an ultrasound before obtaining an abortion and during that ultrasound the provider must offer her the option to view the ultrasound image.
Indiana law also prohibits the use of telemedicine for medication abortion. Also, Indiana bans abortions after 20 weeks, with only a very narrow exception of when the patient’s life or physical health is at risk.
And if that patient can navigate the consent and waiting period requirements, how will they pay for the procedure? In Indiana, abortion is covered in private insurance policies only in cases of life endangerment, rape, incest, or the severely compromised health of the pregnant person. Individuals have the option of buying a separate abortion policy, but that, of course, is at additional cost.
What do Indiana’s sex ed requirements and abortion restrictions have to do with Patel’s conviction and appeal? Everything.Just like the fact that Patel, like Bei Bei Shuai before her, is not white and is not wealthy. A lack of comprehensive sex education means it’s increasingly likely other patients will, like Patel, have very little apparent understanding of the pregnancy process, particularly early on in pregnancy when indicators such as a missed period can be mixed. An increasingly draconian set of abortion restrictions means more and more patients like Patel will find themselves unable to access a legal provider or afford an abortion at all, which means that more and more patients like Patel will be forced into either attempting to self-terminate an unwanted pregnancy or carrying it to term.
Attorneys for the State of Indiana tried to tone down the “canary in a coal mine” aspect to Patel’s conviction. But there really is no denying it. During Monday’s arguments, they were pressing for the right to bring felony charges against women who terminate their own pregnancies. They insisted those prosecutions are exactly what the Indiana legislature intended when passing its feticide statute and further, such prosecutions advanced the state’s “significant” interest in protecting “unborn human life.”
Combine those arguments with the unavailability of comprehensive sex ed and the anti-choice restrictions in Indiana, and it’s clear that Patel’s case is absolutely a test case in the limits, if any, of state power to regulate pregnancies and their outcomes. Should Patel’s conviction be upheld, then the courts will have sent a very strong message to the the people of Indiana: The state expects and demands a healthy, live birth with each pregnancy, and failure to produce one could result in felony charges.
On the campaign trail this week, Hillary Clinton penned an opinion piece outlining her plans for addressing the experiences of women in prison, and Donald Trump lashed out with what many are calling a “sexist” attack on Clinton.
Clinton Calls for “Gender-Responsive” Prison Policies
Clinton published an opinion piece for CNN Wednesday on the costs of prison for women, calling for prison reforms that address the unique experiences women in the system face.
“Mass incarceration has torn families apart, impoverished communities, and kept too many Americans from living up to their God-given potential. But mass incarceration’s impact on women and their families has been particularly acute—and it doesn’t get the attention it deserves,” wrote Clinton. “We can’t go on like this. It is time we reform our broken criminal justice system.”
The Democratic presidential candidate went on to outline a series of reforms meant to address the experiences women face when it comes to imprisonment.
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“First, we need to reform policing practices, end racial profiling, and eradicate racial disparities in sentencing,” suggested Clinton. “Second, we need to promote alternatives to incarceration, particularly for nonviolent and first-time offenders, so families aren’t broken up. We need to improve access to high-quality treatment for substance abuse, inside and outside the prison system, because drug and alcohol addiction is a disease, not a crime-and we need to treat it as such.”
The op-ed went on to call for “gender-responsive” policies for women in prison, noting that “we need to be deliberate about understanding the different paths that can land women in prison, be more attentive to women’s unique needs while they are incarcerated, and do more to support women and their families once they are released.”
Clinton vowed to implement such policies on a federal level, and to encourage states to do the same in their prisons and jails.
Ending mass incarceration has been a key component of Clinton’s platform on the campaign trail since she pitched criminal justice reforms in April 2015, though some have questioned the sincerity of those promises. Many criminal justice reform advocates point out the role the 1994 crime bill, put in place during the Bill Clinton administration, played in exacerbating mass incarceration. Clinton’s op-ed did not address that bill.
Trump Says Clinton Is Playing the “Woman’s Card”
Trump spent much of the week accusing Clinton of playing the “woman’s card” in order to get ahead in the presidential race, generating serious backlash for what critics say is “sexist” rhetoric.
“If Hillary Clinton was a man, I don’t think she’d get 5 percent of the vote,” Trump said in a Tuesday night victory speech celebrating his primary wins, according to the New York Daily News. “The only thing she’s got going is the woman’s card.”
Clinton fired back on Tuesday during her own speech celebrating her primary victories, saying, “If fighting for women’s health care and paid family leave and equal pay is playing the woman card, then deal me in.”
Trump was at it again by Thursday, doubling down on his statement during an interview with NBC’s Today, saying, “She’s playing that card like I’ve never seen anyone play it before.” The Republican presidential candidate went on to claim, “All I’m doing is bringing out the obvious, that without the woman’s card, Hillary would not even be a viable person to even run for a city council position.”
Critics blasted Trump’s rhetoric as “brutally sexist,” sparking backlash against the candidate on social media. As ABC News reported, “Trump’s remarks prompted social media hashtags like #dealmein and #womancard, the latter ranking among the top 10 global trending topics on Twitter Wednesday, with more than 45,000 tweets by late afternoon.”
What Else We’re Reading
Rep. Donna Edwards (D-MD), who lost a tight race for retiring Sen. Barbara Mikulski’s (D-MD) seat to Rep. Chris Van Hollen (D-MD) in Tuesday’s primary, called out Maryland voters for failing to vote for women and people of color in a state that views itself as progressive.
The Nation‘s Joan Walsh asks: “Why Donna Edwards Lost-and Why It Matters for the Future of the Democratic Party.”
Speaking during an MSNBC town hall on Monday, Clinton told the audience that she is “a feminist because I believe that women deserve the same rights as men in every aspect of our economy and our society, here at home and around the world.”
About 58 percent of Clinton’s advertising dollars—three out of every five dollars spent—are going to ads that reference “women’s rights, gender equality or equal pay,” reports Adweek. CandidateSen. Bernie Sanders’ (I-VT) ads largely don’t address abortion, but about 33 percent of them do discuss equal pay.
Vermont became the fourth state to pass automatic voter registration on Wednesday. The new law will automatically register eligible voters who go to the Department of Motor Vehicles (DMV) to get a driver’s license, and could add up to 50,000 new voters to the state’s rolls in the next four years.
A federal judge upheld North Carolina’s voter identification law.
Virginia Gov. Terry McAuliffe (D) restored voting rights to more than 200,000 people in the state who were previously convicted of a felony, noting that provisions banning them from voting disproportionately disenfranchise people of color. “There’s no question that we’ve had a horrible history in voting rights as relates to African-Americans—we should remedy it,” McAuliffe said in an interview on the matter last Thursday according to the New York Times. “We should do it as soon as we possibly can.”
Trump called Virginia’s move to restore voting rights “crooked politics,” claiming that the move was politically motivated in order to get more Democratic votes. “That’s how disgusting and dishonest our political system is,” claimed the Republican presidential candidate.
Meanwhile, the Atlantic‘s Matt Ford explored the “racist roots” of Virginia’s law, saying McAuliffe’s action “marks an exorcism for one of Jim Crow’s last vestiges in Virginia’s state charter—and a reminder of how many of its legal aftereffects still linger today.”