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The Policy and Politics of Reproductive Health
Arrests of and Forced Interventions on
Pregnant Women in the United States,
1973–2005: Implications for Women’s
Legal Status and Public Health
Lynn M. Paltrow
National Advocates for Pregnant Women
Jeanne Flavin
Fordham University
Abstract In November 2011, the citizens of Mississippi voted down Proposition
26, a “personhood” measure that sought to establish separate constitutional rights
for fertilized eggs, embryos, and fetuses. This proposition raised the question of
whether such measures could be used as the basis for depriving pregnant women
of their liberty th rough arrests or forced medical inter ventions. Over the past four
decades, descriptions of selected subsets of arrests and forced interventions on preg-
nant women have been published. Such cases, however, have never been systemati-
cally identified and documented, nor has the basis for the deprivations of liberty been
comprehensively examined. In this article we report on 413 cases from 1973 to 2005
in which a woman’s pregnancy was a necessary factor leading to attempted and actual
deprivations of a woman’s physical liberty. First, we describe key characteristics of
the cases and the women, including socioeconomic status and race. Second, we inves-
tigate the legal claims made to justify the arrests, detentions, and forced interventions.
Third, we explore the role played by health care providers. We conclude by discussing
the implications of our findings and the likely impact of personhood measures on
pregnant women’s liberty and on maternal, fetal, and child health.
On November 8, 2011, Mississippians voted down Proposition 26, a “per-
sonhood” measure that would have changed the state constitution by rede-
fining the word person to include “every human being from the moment
Journal of Health Politics, Policy and Law, Vol. 38, No. 2, April 2013
DOI 10.1215/03616878- 196632 4 © 2013 by Lynn M. Paltrow and Jeanne Flavin
The authors gratefully acknowledge t he contributions to th is research endeavor made by Julia
M. P. Martin, Kathrine D. Jack, Farah Diaz-Tello, and numerous staff, inter ns, volunteers, col-
leagues, and others who provided research and other assistance over nearly a decade. A list of
these individuals is available at advocatesforpregnantwomen.org/jhppl_acknowledgements.php.
This site also lists the foundations that have provided general support to National Advocates for
Pregnant Women over these years; we are deeply grateful to them as well. Finally, this article
benefited from the comments of Mardge Cohen, MD, and two anonymous, external reviewers.
300 Journal of Health Politics, Policy and Law
of fertilization, cloning, or the functional equivalent thereof” (Missis-
sippi Secretary of State 2011a). The measure’s defeat was attributed to
the recognition that such a law could have an impact beyond recriminal-
izing abortion, including outlawing some forms of contraception as well
as in vitro fertilization (Parents against Personhood 2012). In addition,
it was argued that such measures would create legal grounds for forcing
medical interventions on pregnant women and punishing those who, for
instance, suffered miscarriages and stillbirths. Proponents of Proposition
26 dismissed the latter concerns in particular as “scare tactics” (Yes on
26 2011). The research findings reported here call this characterization
into question.
Subsets of arrests and forced interventions on pregnant women who
miscarried or were perceived as risking harm to fertilized eggs, embryos,
or fetuses have been identified and discussed in a variety of venues (Kolder,
Gallagher, and Parsons 1987; Gallagher 1987; Paltrow et al. 1992; Gómez
1997; Ikemoto 1998; Nelson and Marshall 1998; Adams, Mahowald, and
Gallagher 2003; Cherry 2007; Samuels et al. 2007; Fentiman 2006, 2009;
Cantor 2012). For example, Paltrow et al.’s 1992 report collected informa-
tion about 167 cases in which pregnant women who sought to go to term
in spite of a drug problem were arrested. Since then, however, there has
been no similar documentation, nor has there ever been a comprehen-
sive collection or examination of cases involving the arrest and equivalent
deprivations of pregnant women’s liberty. As a result, there is a strong
possibility that the number of such actions, and their shared legal and
public health implications, has been underestimated. Lack of documenta-
tion also makes it difficult to evaluate what the likely implications of such
things as personhood measures are and whether they pose threats beyond
recriminalizing abortion.
A need remains, then, to document the cases, identify which women
have been targeted, and determine the legal and public health implications
of these arrests, detentions, and forced interventions. We report on more
than four hundred such cases that have taken place in forty- four states,
the District of Columbia, and federal jurisdictions from 1973 to 2005.
We begin by describing the methods by which we identified cases for
inclusion in this study and discuss the limitations of our research, leading
to the conclusion that our findings represent a substantial undercount of
cases. Next, we provide five illustrative cases from among the hundreds
that were included in this study. We then report the findings of three sep-
arate analyses. First, we describe characteristics of the women and the
cases, finding that low- income women and women of color, especially
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 301
African American women, are overrepresented among those who have
been arrested or subjected to equivalent deprivations of liberty. In this
section we also describe the circumstances under which arrests, deten-
tions, and forced medical interventions were made and identify leading
criminal charges and other actions taken to deprive pregnant women of
their liberty. Second, we investigate the legal claims made to justify the
arrests, detentions, and forced interventions and their implications. Third,
we explore the role played by health care professionals and discuss how
arrests and other interventions were carried out in health care settings. We
conclude by considering the implications of these cases for the legal status
of pregnant women and for maternal, fetal, and child health.
Methodology
Our study examines cases in which a woman’s pregnancy was a neces-
sary factor leading to attempted and actual deprivations of her liberty in
its most concrete sense: physical liberty. Any case in which authority was
sought or obtained to restrain a pregnant woman or massively curtail her
physical liberty was eligible for inclusion. Thus, whether under cover of
criminal or civil laws, all the following fit under the study’s rubric: arrests;
incarceration in jails and prisons; increases in prison or jail sentences;
detentions in hospitals, mental institutions, and treatment programs; and
forced medical interventions, including surgery.
Because pregnancy is a necessary element of each case included in the
study, the term pregnant woman is used to denote any woman whose case
fits the rubric, regardless of whether she was pregnant, had experienced
a pregnancy loss, or had already delivered at the time she was subject to
the arrest, detention, or intervention. In most cases pregnancy provided
a “but for” factor, meaning that but for the pregnancy, the action taken
against the woman would not have occurred. In seven cases, efforts to
deny women their liberty also included allegations related to actions a
woman took after she had delivered a baby and was no longer pregnant.
We confined our analyses to cases that took place between 1973 and
2005. The beginning date coincides with the US Supreme Court decision
in Roe v. Wade,1 recognizing a woman’s fundamental right to choose abor-
tion. The ending year of 2005 was chosen in order to capture cases that
had reached a final legal conclusion.
We identified and obtained information about the cases through a
1. Roe v. Wade, 410 U.S. 113 (1973).
302 Journal of Health Politics, Policy and Law
variety of sources, starting with earlier published research, articles, and
reports (Kolder, Gallagher, and Parsons 1987; Gallagher 1987; Paltrow
et al. 1992; Gómez 1997; Adams, Mahowald, and Gallagher 2003). Our
primary mechanism for identifying additional cases was through repeated
and systematic searches of legal, medical, news, and other periodical data-
bases.2 We also identified cases as a result of our direct involvement in
cases and through periodic, informal inquiries to public defenders and
other legal advocates, judges, and health care providers across the country.
Once we identified a case that seemed to fit our rubric, our team gath-
ered information from public records, including police and court docu-
ments as well as media accounts. In some cases (for example, when no
other source offered information or where there was contradictory infor-
mation), we contacted attorneys, parties, or others involved in the cases
and documented their responses in written memoranda. In a small per-
centage of cases we were unable to obtain any court documents and relied
solely on secondary sources such as newspaper stories.
For each case we created a physical file containing all available docu-
mentation of the case (e.g., docket sheets, arrest warrants, indictments,
pleadings — such as written memoranda and briefs — orders, decisions,
and other documents filed with the court; documentation relating to
sentencing, probation, and parole; media accounts; online public court
records including those obtained from offender and inmate databases,
public memoranda, and published photographs). These files are kept at
the office of National Advocates for Pregnant Women (NAPW 2005)
and have been scanned and stored electronically. Select information in
these files was also recorded on a coding form and entered into an Excel
spreadsheet (see description below). For each case, NAPW legal staff
wrote summaries of the case information, including key facts, procedural
history, and case outcome, where known, and providing citations to all
available public documentation about the case.
We created a coding form to capture information on approximately
seventy- five variables. The form recorded basic demographic and related
information (e.g., age, race, county, and state) as well as case characteris-
tics (e.g., type of attorney, key allegations described in the arrest or other
charging documents, pregnancy outcome, drug[s] mentioned, media cov-
erage, charging information, and disposition of the cases, where known).
We reviewed each case and recorded information on the coding form.
2. For example, using Westlaw, we searched the databases for federal cases, all state cases,
and secondary sources. We also used several online periodical databases, including LexisNexis
Academic, Newslibrary, Proquest, and Academic Search Complete.
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 303
Each case file and its corresponding form were examined by at least
two people. Disagreements about how a variable should be coded were
resolved by consensus achieved through face- to- face discussions. Indi-
vidual coding forms were updated to reflect changes to the case itself
(e.g., a conviction was overturned). All changes were recorded on the
original coding sheet, initialed by the person authorizing the change, and
confirmed by at least one other person before being entered into an Excel
spreadsheet.
The spreadsheet was later exported to SPSS, a statistical software pack-
age for the social sciences. More than two dozen separate quality control
checks were done to ensure that variables were coded consistently and
to identify and correct any coding errors. Despite our efforts to verify
and validate each data point and to ensure consistency of coding across
cases, errors no doubt remain. Wherever possible, we elected to code data
conservatively — that is, we avoided making assumptions and coded only
those things that were explicitly reported in our sources. For example,
if a woman’s last name was Hispanic, we did not code her ethnicity as
Hispanic unless there was explicit information in the file confirming her
ethnicity.
Frequency distributions of select variables are presented in table 1.
Contingency tables were generated and a chi- square- based measure of
association calculated to permit some limited comparisons by race; these
are presented in table 2.
The nature of the data — drawn as they are from public records, which,
for example, rarely contain a woman’s medical records or all the legal doc-
uments associated with a case — is such that the amount and type of infor-
mation available to be recorded varies widely across cases. For instance,
we have no missing data for the state or jurisdiction variable and only 11
percent missing data for the race variable. By contrast, in a third of the
cases we do not know how the case came to the attention of the criminal
justice system or other legal authorities. For this reason many variables
are coded and should be interpreted as “not mentioned/mentioned.” For
example, a zero for the domestic violence variable means that violence
was not mentioned in the available records; it is entirely possible that a
woman was subjected to domestic violence but that was not reported in
available documentation.
304 Journal of Health Politics, Policy and Law
Limitations
Despite the lengths taken to identify cases, we believe that the 413 cases3
we analyze here represent a substantial undercount. We reach this conclu-
sion for two overarching reasons: (1) there are multiple barriers to the
full identification and documentation of cases; and (2) numerous sources
indicate that such additional cases do in fact exist. We elaborate on these
reasons here.
In general, it is not possible to identify and document cases that have
not resulted in published court opinions and that were neither reported
by the media nor brought to public attention by clients, counsel, or other
concerned parties. At least five kinds of cases are not readily identifiable
through database or other public records searches:
■ Although it is possible to search some criminal databases for certain
crimes, no state has statutory criminal law that specifically permits
the arrest or detention of women with regard to their pregnancies,
making it impossible to identify such cases through criminal data-
base searches;
■ Similarly, there is no searchable database that records decisions to
sentence a woman to incarceration because she is pregnant;
■ Cases in which pregnant women, including teenagers, have been
deprived of their liberty through family and juvenile court proceed-
ings or through civil commitment proceedings are confidential;
■ Most cases involving hospital detentions and compelled treatment do
not result in reported opinions or media coverage, making it unlikely
that such cases would be identifiable (Kolder, Gallagher, and Parsons
1987); and
■ There is no comprehensive source that can be searched for decisions
from Native American tribal courts, and many of the decisions from
those courts are not published (Whisner 2010).
Despite these barriers to the identification of cases, newspaper stories
quoting prosecutors and other authorities (Kantrowitz et al. 1991; Hansen
1991; Fernandez 1995), statements by judges (Wolf 1988)4 and proba-
tion officers (Sherman 1988), reports by other researchers (Kolder, Gal-
lagher, and Parsons 1987; Lieb and Sterk- Elifson 1995; Gómez 1997) and
3. Citations to cases included in this study are to the final decision, where one exists, and in
all cases they refer to the case citation as it appears in our summaries. Sum maries are on file
at NAPW.
4. See, for example, Arkansas Department of Human Services v. Collier, 95 S.W.3d 772, 775
(Ark. 2003) (quoting Judge Collier).
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 305
writers (Dorris 1989: 166, 194, 214; Divorce, Blood Transfusions, and
the Other Legal Issues Affecting Children of Jehovah’s Witnesses 2012),
state laws that specifically permit the civil detention of pregnant women,5
and tribal laws that apparently authorize commitment or incarceration
of pregnant women in some circumstances6 all identify or point to the
existence of potentially hundreds of additional cases. For example, while
our study documents ninety-three cases in South Carolina for the time
period 1973–2005, local newspapers reported that as of 1998 “about 100”
pregnant women in a single county (Greenville) had been threatened with
or charged with criminal child neglect (Spartanburg Herald 1992). Simi-
larly, news reports about civil commitments of pregnant women also iden-
tify the existence of many additional cases. One 1992 Minnesota news
story reported that “in the Twin Cities, at least 30 women have been con-
fined in a locked psychiatric ward at the University of Minnesota Hospital
since the [civil commitment] law was passed” (Cook 1992). In the same
year CBS Evening News (1992) reported that Florida Judge Dennis Alva-
rez “commit[ed] pregnant addicts to drug treatment in jail under the same
mental health laws used to commit the insane.”
While numerous sources provide evidence of additional cases, they do
not provide enough detail to obtain sufficient documentation for inclusion
in this study. Such sources, however, support the conclusion that our study
constitutes a substantial undercount of cases. Unavoidable undercount
notwithstanding, the present study represents the most comprehensive
accounting of such cases through 2005.
Five Illustrative Cases
We briefly summarize five cases documented in this study that illustrate
some of the varied circumstances in which pregnant women have been
deprived of their liberty, the different legal mechanisms used to do that,
and some of the consequences of those deprivations. These summaries
5. Wis. Stat. A nn. § 48.193 (West 2009) (per mitting state authorities to take a woman into
custody if it is believed that she is pregna nt and demonstrates “habit ual lack of self-control”
in the use of alcoholic beverages or controlled substances); S.D. Codified Laws § 34–20A- 63
(West 2012) (authorizing civil commitment of women who are “pregnant and abusing alcohol
or drugs”); Minn. Stat. Ann. § 253B.02, subd. 2 (West 2011) (authorizing civil commitment
of persons who are “chemically dependent,” defi ned to include “a pregnant woman who has
engaged during the pregnancy in habitual or excessive use for a nonmedical purpose” of drugs
or alcohol).
6. See, for example, Sisseton- Wahpeton Sioux Tribal Code § 38– 02– 01(8) (1988); Colville
Confederated Tribes v. Sutton, 32 Indian L . Rep. 6037 (Confederated Tribes of t he Colville
Reservation Tribal Ct. 2005).
306 Journal of Health Politics, Policy and Law
also bring attention to constitutional issues apart from the right to lib-
erty. For example, they raise questions about whether pregnant women
who have been subject to arrests, detentions, and forced interventions
have been deprived of their right to procedural due process, including the
right to effective assistance of counsel at critical stages of the proceedings
against them.7
Regina McKnight
In South Carolina, Regina McKnight, a twenty- one- year- old African
American woman, unexpectedly suffered a stillbirth. Although it would
later be shown that the stillbirth was the result of an infection, McK-
night was arrested and charged with homicide by child abuse. The state
alleged that McKnight caused the stillbirth as a result of her cocaine use.
A jury found her guilty after fifteen minutes of deliberation. McKnight
was sentenced to twelve years in prison. In 2008, as a result of postconvic-
tion relief proceedings, the South Carolina Supreme Court unanimously
overturned her conviction, concluding that she had received ineffective
assistance of counsel at her trial. The court described the research that the
state had relied on as “outdated” and found that McKnight’s trial counsel
had failed to call experts who would have testified about “recent studies
showing that cocaine is no more harmful to a fetus than nicotine use, poor
nutrition, lack of prenatal care, or other conditions commonly associated
with the urban poor.”8 To avoid being retried and possibly sentenced to
an even longer term, McKnight pleaded guilty to manslaughter and was
released from prison. She had already served eight years of her original
sentence.9
Laura Pemberton
Laura Pemberton, a white woman, was in active labor at her home in Flor-
ida. Doctors, aware of this, believed that she was posing a risk to the life
of her unborn child by attempting to have a vaginal birth after having had
a previous cesarean surgery (VBAC). The doctors sought a court order
to force her to undergo another cesarean. A sheriff went to Pemberton’s
home, took her into custody, strapped her legs together, and forced her to
7. Se e, fo r exa mp le, Argersinger v. Hamlin, 407 U.S. 25 (1972); Mathews v. Eldridge, 424
U.S. 319 (1976); Addington v. Texas, 441 U.S. 418, 425 (1979); Foucha v. L ouisiana, 504 U.S.
71, 80 (1992); Strickland v. Washington, 466 U.S. 668 (1984).
8. McKnight v. State, 661 S.E.2d 354, 358 n.10 (S.C. 2008).
9. Ibid.
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 307
go to a hospital, where an emergency hearing was under way to determine
the state’s interest in protecting the fetus still inside her. While lawyers
argued on behalf of the fetus, Pemberton and her husband, who were not
afforded the opportunity to be represented by counsel, “were allowed to
express their views”10 as she was being prepared for surgery. The judge
presiding over the case compelled Pemberton to undergo the operation,
which she had refused and believed to be unnecessary. When she later
sued for violation of her civil rights, a trial- level federal district court
ruled that the state’s interest in preserving the life of the fetus outweighed
Pemberton’s rights under the First, Fourth, and Fourteenth Amendments.
Pemberton subsequently gave birth vaginally to three more children, call-
ing into question the medical predictions of harm from a VBAC on which
the court had relied.11
Rachael Lowe
Rachael Lowe, a twenty- year- old pregnant woman, voluntarily went to
Waukesha Memorial Hospital in Wisconsin to seek help for her addic-
tion to the opiate Oxycontin. Some hospital staff responded by report-
ing Lowe to state authorities under Wisconsin’s “cocaine mom” law, a
statute in the Children’s Code that allows the state to take a pregnant
woman into custody if it believes that the “expectant mother habitually
lacks self- control in the use of alcohol beverages, controlled substances
or controlled substance analogs.”12 As a result, Lowe was forcibly taken
to St. Luke’s Hospital in Racine, more than an hour away from where she
lived with her husband and two- year- old son. At St. Luke’s she was held
against her will in the psychiatric ward. While there, she received no pre-
natal care and was prescribed numerous medications, including Xanax.
Although a guardian ad litem was appointed for the fetus, Lowe was not
appointed counsel until after the first court hearing in her case, approxi-
mately twelve days after being taken into custody. At that hearing, no state
official could give the court any information about the health of the fetus
or the treatment Lowe was receiving. When a subsequent hearing was
held to determine the legality of her incarceration, a doctor testified that
Lowe’s addiction posed no significant risk to the health of the fetus. At
the end of the hearing, the court announced that Lowe would be released
10. Pemberto n v. Tall aha ssee Mem’l Reg’l Med. C tr., 66 F. Supp. 2d 1247, 1250 (N.D. Fla.
1999).
11. State v. Pemberton, No. 96 –759 (Fla. Cir. Ct. Leon County Feb. 22, 1996).
12. Wis. Stat. Ann. § 48.193 (West 2009).
308 Journal of Health Politics, Policy and Law
from her hospital- based incarceration. Nevertheless, she remained at the
hospital in state custody for several days, and under state surveillance and
supervision for the remainder of her pregnancy. Lowe was required to
provide urine samples and to cooperate with law enforcement and health
professionals. As a result of the intervention, Lowe’s husband had to take
a leave of absence from his job, and Lowe was fired from hers.13
Martina Greywind
Martina Greywind, a twenty- eight- year- old homeless Native American
woman from Fargo, North Dakota, was arrested when she was approxi-
mately twelve weeks pregnant. She was charged with reckless endanger-
ment, based on the claim that by inhaling paint fumes she was creating a
substantial risk of serious bodily injury or death to her unborn child. After
spending approximately two weeks in the Cass County Jail, Greywind
was able to obtain release for a medical appointment. At that appointment
Greywind obtained an abortion, despite widely publicized efforts by abor-
tion opponents to persuade her to carry the pregnancy to term. Following
the abortion, Greywind filed a motion to dismiss the charges. The state
agreed to a dismissal: “Defendant has made it known to the State that she
has terminated her pregnancy. Consequently, the controversial legal issues
presented are no longer ripe for litigation.”14 According to news reports,
the prosecutor in the case stated that since Greywind had had an abortion,
it was “no longer worth the time or expense to prosecute her” (Orlando
Sentinel 1992).15
Michelle Marie Greenup
In Louisiana, Michelle Marie Greenup, a twenty- six- year- old African
American woman, went to a hospital complaining of bleeding and stom-
ach pain. Doctors suspected that she had recently given birth and con-
tacted law enforcement authorities. After repeated police interrogations,
Greenup “confessed” that the baby was born alive, and it died because
she had failed to provide it with proper care. Greenup was charged with
second- degree murder and was incarcerated. Eventually counsel for
Greenup obtained her medical records, which revealed that the fetus could
not have been older than between eleven to fifteen weeks and that prior
13. State v. Lowe (Wisc. Cir. Ct. Racine County June 15, 2005) (Constantine, J.).
14. Motion to Dismiss with Prejudice, State v. Greywind, No. CR- 92– 447 (N.D. Cass County
Ct. Apr. 10, 1992).
15. State v. Greywind, No. CR- 92–447 (N.D. Cass County Ct. Apr. 10, 1992).
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 309
to the miscarriage Greenup had been given Depo- Provera, a contracep-
tive injection that may cause a miscarriage if administered to a woman
who is already pregnant. Greenup was finally released, but only after she
agreed to plead guilty to a misdemeanor violation of a public health law
that regulates disposal of human remains. There is no indication that the
human remains law was intended to apply to pregnant women confronted
with a miscarriage.16
These five case examples represent only a fraction of the state actions
taken against women in the United States, but they provide an important
sense of the consequences to the women, including incarceration, forced
surgery, coerced abortion, and civil commitment, apparently without
regard to the health care that would actually be provided.
Demographic and Case Characteristics
In this section we discuss key quantitative findings on geographic distri-
bution of cases, women’s age, stage of pregnancy, mental health status,
socioeconomic status, and race (see table 1). We also briefly discuss our
findings on men and domestic violence in the women’s lives.
We identified state actions taken against 413 women in forty-four states,
the District of Columbia, and some federal jurisdictions between 1973
and 2005 (see figure 1). The largest percentage of cases originated in
the South (56 percent), followed by the Midwest (22 percent), the Pacific
and West (15 percent), and the Northeast (7 percent).17 The cases took
place in every state except Delaware, Maine, Minnesota, Rhode Island,
Vermont, and West Virginia. Ten states had ten or more cases. Those
ten states also accounted for more than two- thirds of the total number
of cases. South Carolina had the largest number of cases (n = 93), fol-
lowed by Florida (n = 56), Missouri (n = 29), Georgia (n = 16), Tennessee
(n = 15), Wisconsin (n = 15), Illinois (n = 14), Nevada (n = 11), New York
(n = 11), and Texas (n = 10).
In individual states, cases tend to cluster in particular counties and
sometimes in particular hospitals. For example, in South Carolina thirty-
four of the ninety- three cases came from the contiguous counties of
Charleston and Berkeley. Staff at one hospital, the Medical University
of South Carolina, initiated thirty of these cases. In Florida twenty- five
of the fifty- five cases took place in Escambia County. Of these, twenty-
16. State v. Greenup, No. 2003–300B (La. Dist. Ct. St. John the Baptist Parish Aug. 16, 2004).
17. Regions are defined according to the US Census Bureau (USCB 2012).
310 Journal of Health Politics, Policy and Law
Table 1 Demographic and Case Characteristics
Characteristic n Percentage
Geographic region
South 230 56
Midwest 89 22
West/Pacific 63 15
Northeast 28 7
Federal 3 1
Race
Black 191 52
White 152 41
Native American 10 3
Hispanic (of any race) 9 3
Asian/Pacific Islander 4 1
Other 1 0
Socioeconomic status
Represented by indigent defense 295 71
Age
12–20 33 9
21–30 226 60
31–43 116 31
Health of fetus/infant
No reported complication/adverse outcome 262 64
Adverse outcome reported 132 32
Other 18 4
Mentioned:
Mental health issue 25 7
Male partner/father of baby 96 23
Violence against women 36 9
Mentioned use of:
Any illicit drug 348 84
Cocaine 282 68
Amphetamine/meth 57 14
Marijuana 43 10
Opiates 23 6
Alcohol 41 10
Cigarettes 12 3
Mentioned:
Refused treatment orders 84 20
Failed to obtain prenatal care 68 17
Forced medical intervention 30 7
Abortion 8 2
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 311
Table 1 (continued)
Characteristic n Percentage
Charged with:
At least one crime 354 86
A felony 295 74
Charged with:
Child abuse or neglect 204 51
Drug possession or use 90 22
Drug distribution/delivery 83 21
Homicide 48 12
Case reported to police by:
Health care providers 112 41
Social workersa 34 12
From hospital to CPS to law enforcement 47 17
Otherb 83 30
N = 413
Note: Amount of missing data var ies by variable.
aSocial workers include those employed by the hospital and child protective services (CPS);
the category also includes CPS social workers based within hospitals.
b“Other” includes reports by a probation or parole officer, repor ts resulting from an a rrest
unrelated to pregnancy, or a report by a boyfriend or family member.
three came from just two hospitals: Sacred Heart Hospital and Baptist
Hospital. In Missouri twenty- six of the twenty- nine cases came from Jack-
son County. Of these, twenty cases came from a single hospital: Truman
Medical Center.
Overwhelmingly, and regardless of race, women in our study were eco-
nomically disadvantaged, indicated by the fact that 71 percent qualified
for indigent defense. Of the 368 women for whom information on race was
available, 59 percent were women of color, including African Americans,
Hispanic American/Latinas, Native Americans, and Asian/Pacific Island-
ers; 52 percent were African American. African American women in par-
ticular are overrepresented in our study, but this is especially true in the
South (see table 2). Nearly three- fourths of cases brought against African
Americans originated in the South, compared with only half of the cases
involving white women. Racial disparities are even more pronounced in
particular states. Between 1973 and 2005 African Americans in Florida
made up approximately 15 percent of the state’s population and whites
composed 81 percent. Yet approximately three- fourths of Florida’s cases
were brought against African American women, while only 22 percent
were brought against white women. In South Carolina, African Ameri-
312 Journal of Health Politics, Policy and Law
cans made up 30 percent of the state’s population, and 68 percent of the
population base was white. Yet 74 percent of the cases in the state were
brought against African American women and only 25 percent against
white women.
We were able to determine the age of the women at the time of their
arrest, detention, or forced intervention in approximately 91 percent of the
cases. Women in the study range from twelve to forty- three years of age;
the average (and median) age was approximately twenty- eight years. We
identified two cases involving minors.
One out of five women was still pregnant at the time legal action was
taken. In some cases action was taken against a woman early in her preg-
nancy, when the fetus would not have been viable. In twenty- five cases we
found explicit references to a mental health diagnosis, a history of mental
health problems, or treatment for mental health problems. Although every
pregnancy in this study involved a man, the father or the woman’s male
partner was mentioned in only 23 percent of cases. Information available
in approximately one in ten cases (n = 36) mentioned violence against the
pregnant woman.
Figure 1 Number of Arrests, Detentions, and Forced Interventions of
Pregnant Women in the United States (1973–2005)
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 313
Circumstances of Arrests
and Other State Actions
In this section we describe the circumstances in which the arrests and
other state actions took place. These circumstances often defy simple cat-
egorization. Research into cases that were widely reported in the news
media as involving a pregnant woman and her use of an illegal drug or
alcohol often revealed that other actions, inactions, or circumstances, in
addition to pregnancy, were the primary reason for the state action. These
include a pregnant woman who had been in a location while pregnant that
exposed her unborn child to dangerous “fumes that permeate in the air,”18
and another case in which the woman did not follow her doctor’s medical
advice to rest during her pregnancy and did not get to the hospital quickly
enough on the day of delivery.19
In several cases a woman’s efforts to seek help after having been physi-
cally abused resulted in her arrest, although factors such as drinking alco-
Table 2 Distribution of Cases by Region, Felony Charge, and Reporting
Mechanism, by Race
Black # (%) White # (%) Other # (%) Cramer’s V
Region
South 137 (72) 75 (49) 4 (17)
Midwest 37 (19) 37 (24) 8 (33) .258**
West/Pacific 9 (5) 27 (18) 10 (42)
Northeast 8 (4) 13 (9) 2 (8)
Charged with a felony
Yes 152 (85) 107 (71) 18 (72) .174*
No 26 (15) 44 (29) 7 (28)
Reporting mechanism
Health care providers 57 (48) 27 (27) 6 (27)
Social workers 21 (18) 10 (10) 2 (9) .226**
Hospital to CPS to
law enforcement 19 (16) 18 (18) 6 (27)
Other 21 (18) 45 (45) 6 (27)
Note: CPS = child protective services.
*p < .01; **p < .001
18. Transcript of Proceedings Held on August 30, 1999 at 12, In re Unborn Child of Starks,
No. JF- 99–127 (Okla. Dist. Ct. Rogers County Jan. 24, 2000); In re Unborn Child of Starks,
No. 93,606 (Okla. Sept. 23, 1999).
19. People v. Stewart, No. M508197 (Cal. Mun. Ct. San Diego County Feb. 26, 1987).
314 Journal of Health Politics, Policy and Law
hol or using an illegal drug while pregnant were cited as grounds for those
arrests.20 In South Carolina a twenty- three- year- old African American
woman was charged with homicide by child abuse after she experienced a
stillbirth. The charging documents, including the arrest warrant and inci-
dent report, alleged that her use of drugs and alcohol caused the stillbirth.
Further research into her case revealed that she had used a small amount
of powder cocaine, consumed alcohol, and taken eight Tylenol in an effort
to commit suicide on her twenty- third birthday.21
Another case provides a particularly good example of one that defies
simple categorization and characterization. Deborah Zimmerman, a
thirty- four- year- old white woman from Franksville, Wisconsin, had been
drinking alcohol and was allegedly intoxicated when she was brought to
St. Luke’s Hospital two days before she was scheduled to deliver her baby.
Declining a “biophysical profile” at a prenatal care appointment a week
earlier, as well as drinking alcohol and smoking cigarettes while pregnant,
all legal activities, were mentioned in the criminal complaint describing
the grounds for her arrest on charges of attempted first- degree intentional
homicide and first- degree reckless injury.22 The case received widespread
national attention, focusing on Zimmerman’s alcohol use and the claim
that she wanted to “kill” her unborn child through her use of alcohol. A
review of the case reveals something unreported in the media: medical
staff decided to contact the police and characterize her as a criminal only
after she refused to consent to fetal monitoring and cesarean surgery.23
According to the criminal complaint, “Once at St. Luke’s Hospital,
Deborah Zimmerman was combative and refused monitoring and treat-
ment.”24 Although Zimmerman “kept talking about a gentleman and how
he was abusing her,” neither the nurses nor the doctors apparently saw this
information as bearing on why Zimmerman might object to being touched
by the strangers who made up the medical staff (Terry 1996).25 Eventu-
ally, however, staff performed an ultrasound on Zimmerman. Based on
their interpretation of the results, medical staff believed that cesarean sur-
20. State v. Pfannenstiel, No. 1–90–8CR (Wyo. Laramie County Ct. Feb. 1, 1990) (Den-
hardt. J.); Jackson v. State, 430 S.E.2d 781 (Ga. Ct. App. 1993).
21. State v. Stephens, No. 01- GS- 26–2964 (S.C. Ct. Gen. Sess. Horry County Oct. 17, 2001)
(John, J.).
22. DA Complaint No. 96- F- 368, State v. Zimmerman, No. 96- CF- 525 (Wis. Cir. Ct. Racine
County, Sept. 18, 1996).
23. State v. Deborah J.Z., 596 N.W.2d 490 (Wisc. Ct. App. 1999).
24. DA Complaint No. 96- F- 368, State v. Zimmerman, No. 96- CF- 525 (Wis. Cir. Ct. Racine
County, Sept. 18, 1996).
25. State v. Zimmerman, File No 96- CF- 525, Transcript of Prelim inary Hearing (Racine
County Circuit Court, July 3, 1996) at 115.
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 315
26. State v. Zimmerman, File No 96- CF- 525, Transcript of Prel iminary Hearing (Racine
County Circuit Court, July 3, 1996) at 110–11.
gery was necessary because of “fetal intolerance to labor and suspected
intra- uterine growth retardation.” According to testimony from a surgical
technician in the labor and delivery unit, Zimmerman refused to consent
to the surgery:
Q. What did you and the hospital personnel do as a result of her refusal
to consent to the C- section?
A. Well, I was assisting the RN . . . and as I recall when we said we, we
told her she needed a C- section, she said no one is doing this f- ing thing
to me and I don’t want to be here. Like I said, she did threaten to leave
quite a bit, got up out of bed a few times. We then realized we had to do
something, so we consulted the physician again and our nurse supervi-
sor, who then decided to call in the police after [Zimmerman] had made
a statement to me.
Q. What sort of statement did she make?
A. . . . I was in the room alone with her, trying to talk to her, explained
to her the situation, that she needed a lot of help here, that she had to
cooperate, it wasn’t just for her health, it was for the baby’s health, and
she had said if — at this time there was talk about that she might not be
staying and, I recall her saying to me, if you don’t keep me here, I’m
going to go home and keep drinking and drink myself to death and I’m
going to kill this thing because I don’t want it anyways.26
The first half of this hearsay statement has been interpreted by some as an
explicit suicide threat made in the presence of doctors and nurses — one
that generated no psychiatric consultation, evaluation, or treatment (Arm-
strong 2003: 2). The second half of the statement became the excuse for
the arrest and the subject of national news. The fact that her refusal of
cesarean surgery prompted the idea to call the police did not make the
news at all.
The difficulty of categorization notwithstanding, we found that the
majority of cases identified in this study focused on women who became
pregnant, sought to continue to term, and were believed to have used one
or more illegal drugs, with cocaine most often identified as one of them.
Eighty- four percent (n = 348) of cases involved an allegation that the
woman, in addition to continuing her pregnancy, had used an illegal drug.
Two hundred and eighty- two cases identified cocaine as one of the drugs
being used, 51 identified methamphetamine or amphetamines, 23 men-
316 Journal of Health Politics, Policy and Law
tioned heroin or another opiate, and 43 identified marijuana. In 6 cases
marijuana was the only illegal drug mentioned.
More than half the 348 cases (n = 177) in which a woman was identified
as having used an illegal drug also specifically referred to other factors, in
addition to the pregnancy, as part of the rationale or circumstances justify-
ing the arrest or detention. Regardless of whether there was a drug- related
allegation, refusal to follow treatment orders was identified as part of the
justification for the arrest, detention, or forced medical intervention in
nearly one in five cases.27 In 41 cases alcohol was mentioned. Lack of pre-
natal care was identified as a factor in 68 cases. The fact that the woman
smoked cigarettes was mentioned in 12 cases.
Other factors explicitly described in arrest warrants and other legal doc-
uments justifying state intervention in cases that also involved an allegation
of drug use included the fact that the pregnant woman had a sexually trans-
mitted infection,28 was HIV positive,29 or gave birth at home or in another
setting outside a hospital.30 In one case the state indicated that it would use
the fact that the woman had refused offers of voluntary sterilization in sup-
port of its prosecution.31 In numerous cases the fact that a pregnant woman
had other children, some of whom were identified as having been exposed
to alcohol or another drug, was referenced as part of law enforcement offi-
cials’ explanation for the arrest (Rizzo 2002; Murphy 2007).32
Sixteen percent of the cases (n = 65) involved no allegation that the
woman had used an illegal, criminalized dr ug.33 These include cases in
27. See, for example, State v. Hudson, No. K88–3435- CFA (Fla. Cir. Ct. Seminole County
Jan. 23, 1991).
28. See, for example, State v. Maddox, No. K90 –1936- CFA (Fla. Cir. Ct. Seminole County
Sept. 17, 1992); State v. Fant, No. 91- GS- 44– 612 (S.C. Ct. Gen. Sess. Union Count y July 7,
1992 ).
29. See, for example, State v. Cannon, No. C805783 (S.C. Ct. Gen. Sess. Spartanburg County
Feb. 11, 1993).
30. See, for example, State v. Payton, No. 98- GS- 46–2137 (S.C. Ct. Gen. Sess. York County
July 28, 1998) (Eppes, J.); State v. Schwarz, No. 2003GS4601409 (S.C. Ct. Gen. Sess. York
County Apr. 22, 2003) (Burch, J.); State v. Arrowood, No. I675718 (S.C. Ct. Gen. Sess. Pick-
ens County Jan. 23, 2006); State v. Craig, No. S14068 (Tenn. Cr im. Ct. Carter County, July
13, 1999) (Cupp, J.); State v. Jerez, No. 90–0075- CF- F (Fla. Cir. Ct. Mon roe County July 31,
1990); State v. McCormack (Idaho Dist. Ct. Bonneville County, Oct. 29, 1996); State v. Cuf fie,
No. 98- B- 03097–6 (Ga. Super. Ct. Gwinnett County Dec. 21, 1998); State v. Coleman, No.
02D04–0004- MC- 000590(A) (Ind. Cir. Ct. Allen County Apr. 13, 2000); Patton v. State, No.
F- 2000 –1232 (Okla. Crim. App., Oct. 15, 2001).
31. Ward v. State, 188 S.W.3d 874 (Tex. App. 2006).
32. See, for example, State v. Cheadle, No. 16CR20 00–00720 (Mo. Cir. Ct. Jackson County
Nov. 16, 2007); State v. Gilbreth, No. 35825P (Ark. Cir. Ct. Benton Cou nty Aug. 25, 2003)
(Clinger, J.).
33. We note that in one case, State v. Rowland, No. 041901649 (Utah Dist. Ct.- 3d Apr. 7,
2004) (Fuchs, J.), discussed in greater detail below, allegations that Rowland had used an illegal
drug emerged later in the case, but played no role in the murder charge brought against her.
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 317
34. State v. Pregnant Teenager (Wisc. Fam. Ct. Waukesha County 1985).
35. In re Steven S., 178 Cal. Rptr. 525 (Cal. Ct. App. 1981).
36. State v. Ayala, 991 P.2d 1100 (Or. Ct. App. 1999).
37. Commonwealth v. Murphy, No. 82- CR- 079 (Ky. Cir. Ct. Shelby County May 7, 1982).
38. See, for example, State v. Pinder (Mo. Cir. Ct. Pulaski County Nov. 22, 1991); People v.
Gilligan, No. 5456 (N.Y. Sup. Ct. Warren County Apr. 19, 2004) (Krogmann, J.).
39. In re Unborn Baby Wilson (Mich. Juv. Ct. Calhoun County Feb. 3, 1981).
40. See, for example, In re Madyun Fetus, 114 Daily Wash. L. Rptr. 2233 (D.C. Super. Ct.
Oct. 29, 1986).
41. See, for example, In re Baby Boy Doe, 1632 N.E.2nd 326 (Ill. App. Ct. 1994).
42. See, for example, Taft v. Taft, 446 N.E.2d 395 (Mass. 1983).
43. See, for exa mple, Broward Medical Center v. Okonewski, 46 Fla. Supp. 120 ( Fl. Cir.
Ct. 1977).
44. Findings and Orders at 7, In re Unborn Child Corneau, No. CP- 00- A- 0022 (Mass. Juv.
Ct. Attleboro Div. Aug. 29, 2000) (quoting petition).
45. In re Unborn Child Corneau, No. CP- 00- A- 0022 (Mass. Juv. Ct. Attleboro Div. Aug.
29, 2000) (Nasif, J.).
46. See, for example, State v. Flores, No. 2006GS3203466 (S.C. Ct. Gen. Sess. Feb. 28,
2008); People v. Lyerla, No. 96- CF- 8 (Ill. Cir. Ct. Montgomery County May 1997); In re
Unborn Child of J.B., No. 84–7- 500060 (Wash. Super. Ct. Benton/Franklin Counties Apr. 19,
1984 ).
47. Alt hough t he 1973 decision in Roe v. Wade held that states could not prohibit pregnant
women from having abortions in all circumstances, many states still have “pre- Roe” laws on the
books, and virtually all states have post- Roe laws that place limits on what they define as legal
abortion (Center for Reproductive Rights 2007; Guttmacher Institute 2012b).
48. See, for example, State v. Kawagu chi, 739 N.E.2d 392 (Ohio Ct. App. 2000).
which women were deprived of their liberty based on claims that they
had not obtained prenatal care,34 had mental illness,35 or had gestational
diabetes,36 or because they had suffered a pregnancy loss.37 In fifteen of
these cases alcohol was the only drug mentioned.38 Thirty of these cases
involved efforts to force women to submit without consent to medical
interventions. These forced interventions included pregnant women who
had diabetes39 or sought to have a vaginal birth40 and refused to undergo
cesarean surgery41 or other surgical intervention,42 those who refused to
submit to a blood transfusion,43 and one who refused to allow a public
health nurse who had been appointed as a guardian ad litem for the fetus
to monitor the pregnancy, “check on the welfare of the unborn child,”44
and provide any medical services that the nurse deemed necessary (Sealey
2001).45
In eight cases pregnant women were alleged to have self- induced an
abortion46 that the state claimed violated the state’s abortion laws.47 In two
cases state action was used to detain women who expressed an intention to
have an abortion, and in one of those the woman’s incarceration prevented
her from having an abortion.48
Although deprivations of women’s liberty are often justified as mecha-
nisms for protecting children from harm, we found that in a majority of
cases the arrest or other action taken was not dependent on evidence of
318 Journal of Health Politics, Policy and Law
actual harm to the fetus or newborn. As noted earlier, in two out of three
cases no adverse pregnancy outcome was reported. In many cases crimi-
nal charges rested on the claim that there was a risk of harm or a positive
drug test but no actual evidence of harm.49 Similarly, in numerous cases
where court orders were sought to force medical interventions, a risk of
harm was identified that did not materialize.50
In cases where a harm was alleged (e.g., a stillbirth), we found numer-
ous instances in which cases proceeded without any evidence, much less
scientific evidence, establishing a causal link between the harm and the
pregnant woman’s alleged action or inaction. In other cases we found that
courts failed to act as judicial gatekeepers to ensure, as they are required
to do, that medical and scientific claims are in fact supported by expert
testimony based on valid and reliable scientific evidence (Neufeld 2005;
Paltrow and Jack 2010).
The lack of scientific evidence was especially clear in the Geralyn Susan
Grubbs case. Grubbs, a twenty- three- year- old white woman, gave birth
to a son in Alaska. Two weeks after birth, the baby died unexpectedly.
The state asserted that Grubbs’s use of cocaine while pregnant caused her
son’s death and charged her with manslaughter as well as two drug- related
offenses. Facing a potential thirty- year sentence, Grubbs accepted a plea
bargain to the lesser charge of criminally negligent homicide. Grubbs’s
conviction and sentence remained in full force even though, in response to
a separate civil suit, the state admitted that it had since discovered that the
autopsy, which had formed the basis of Grubbs’s conviction, was errone-
ous and that cocaine was not the cause of the infant’s death.51
In re Unborn Child of Starks provides a clear example of a judicial
proceeding in which witnesses were allowed to express opinions about
medical and scientific facts even though they were not qualified to do
so.52 Julie Starks, a twenty- five- year- old white pregnant woman in Okla-
homa, was arrested in a trailer that was allegedly being used, or that had
once been used, to manufacture methamphetamine. In addition to arrest-
49. See, for example, S.C. Code Ann. § 20–7- 50 (Law. Co- op. 1985) (“Any person having the
legal custody of any child or helpless person, who shall, without lawful excuse, refuse or neglect
to provide . . . the proper care and at tention for such child or helpless person, so that the life,
health or comfort of such child or helpless person is endangered or is likely to be endangered,
shall be guilty of a misdemeanor and shall be punishe d within the discret ion of the ci rcuit
court” [emphasis added]).
50. See, for example, WVHCS- Hospital, Inc. v. Doe, No. 3- E 20 04 (Pa. Ct. Co. Pl. Luzer ne
County Jan. 14, 2004).
51. State v. Grubbs, No. 4FA- S89 –415CR (Alaska Super. Ct.- 4th Oct. 2, 1989) (Hodges, J.).
52. In re Unborn Child of Starks, No. 93,606 (Okla. Sept. 23, 1999).
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 319
ing Starks and charging her with manufacturing methamphetamine, the
state began proceedings in the Rogers County juvenile court to declare her
unborn child “deprived” (in danger due to parental neglect, abuse, cruelty,
or depravity). The juvenile court took emergency custody of Starks’s fetus
and also raised her bond from the $25,000 set by the criminal court to
$200,000, with the added condition that if Starks posted bond she would
be placed in a foster home until she gave birth.53 While incarcerated in the
county jail, Starks experienced dehydration and premature labor, devel-
oped urinary tract infections and sinus problems, and lost twelve pounds.
She spent more than a month in jail before the Oklahoma Supreme
Court ruled that the juvenile court judge’s order raising Starks’s bond to
$200,000 was “an unauthorized application of judicial force.”54
The lower court, however, continued its emergency order, giving cus-
tody of Starks’s fetus to the Oklahoma Department of Human Services. A
jury trial in the juvenile court went forward to determine if the fetus was
“deprived” under the state’s Children’s Code. The state alleged that Starks
had placed “the unborn child at risk of injury, serious bodily injury, with
defects or death.” Because there was no evidence to support the state’s
claim that Starks was using any illegal drugs while pregnant, the case
focused on the argument that while pregnant, she had “inhaled” danger-
ous chemicals allegedly used in the manufacture of methamphetamine.55
The state was allowed to rely on testimony from local law enforcement
officials to support this claim. For example, a police sergeant agreed with
the prosecutor that he did not “need a medical degree” to testify that a
pregnant woman should not have been in the environment in which they
found her.56 The prosecutor argued that it did “not take a rocket scientist,
so to speak, to figure out that these kinds of chemicals would be harmful
to not only the mother but the unborn child,” and was allowed to make
this claim without any scientific experts at all.57 The jury reached a ver-
dict, later overturned, that the fetus, while still inside Starks, had been
“deprived.”
53. Cou rt M inute s, In re Unborn Child of Sta rks, No. J F990127 (Ok la. Dist. Ct. Rogers
County Nov. 24, 1999).
54. Order, In re Unborn Child of Starks, No. 93,606 (Okla. Sept. 23, 1999).
55. Petition, In re Unborn Ch ild of Starks, No. JF990127 (Okla. Dist. Ct. Rogers County
Nov. 24, 1999) (approved for filing Aug. 30, 1999).
56. Transcript of Jury Trial at 284, In re Unborn Child of Starks, No. JF- 99–127 (Okla. Dist.
Ct. Rogers County Jan. 24, 2000) .
57. Transcript of Jury Trial at 129–130, In re Unborn Child of Starks, No. JF- 99 –127 (Okla.
Dist. Ct. Rogers County Jan. 24, 2000).
320 Journal of Health Politics, Policy and Law
Criminal Charges and Other Efforts
to Deprive Pregnant Women of Their Liberty
Overwhelmingly, the deprivations of liberty described here occurred in
spite of a lack of legislative authority, in defiance of numerous and signifi-
cant appellate court decisions dismissing or overturning such actions,58
and contrary to the extraordinary consensus by public health organiza-
tions, medical groups, and experts that such actions undermine rather than
further maternal, fetal, and child health (American College of Obstetri-
cians and Gynecologists 1987, 2005, 2011; National Perinatal Association
2011; American Psychiatric Association 2001; American Nurses Asso-
ciation 1991; American Academy of Pediatrics 1990; Cole 1990; March
of Dimes 1990; National Council on Alcoholism and Drug Dependence
1990). The American Medical Association, the American Academy of
Pediatrics, and the American College of Obstetricians and Gynecologists,
for example, have concluded that threats of arrest and punishment deter
women from care and from speaking openly with their doctors (Cole
1990; American Academy of Pediatrics Committee on Substance Abuse
1990). The American Medical Association statement also notes that such
threats could pressure some women to have unwanted abortions rather
than risk being subject to criminal penalties.
Due in part, no doubt, to the strong public health opposition to such
measures, no state legislature has ever passed a law making it a crime for
a woman to go to term in spite of a drug problem, nor has any state passed
a law that would make women liable for the outcome of their pregnancies
(Paltrow, Cohen, and Carey 2000; National Abandoned Infants Assis-
tance Resource Center 2008; Guttmacher Institute 2012a). Similarly, no
state legislature has amended its criminal laws to make its child abuse
laws applicable to pregnant women in relationship to the eggs, embryos, or
58. See, for example, Johnson v. State, 602 So. 2d 1288 (Fla. 1992); State v. Aiwohi, 123 P.3d
1210 (Haw. 2005); Cochran v. Commonwealth, 315 S.W.3d 325 (Ky. 2010); Kilmon v. State, 905
A.2d 306, 313–14 (Md. 2006); State v. Wade, 232 S.W.3d 663 (Mo. 2007); State v. Geiser, 763
N.W.2d 469, 471 (N.D. 2009); State v. Gray, 584 N.E.2d 710 (Ohio 1992); In re Unborn Child
of Starks, 18 P.3d 342 (Okla. 2001); Ex parte Perales, 215 S.W.3d 418 (Tex. Crim. App. 2007);
State ex rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729 (Wis. 1997); Reinesto v. Superior Court,
894 P.2d 733 (Ariz. App. 1995); Reyes v. Superior Court, 141 Cal. Rptr. 912 (Cal. App. 1997);
In re A.C., 573 A.2d 1235 (D.C. 1990) (en banc); State v. Gethers, 585 So. 2d 1140 (Fla. App.
1991); State v. Luster, 419 S.E.2d 32 (Ga. App. 1992); In re Fetus Brown, 689 N.E.2d 397 (Ill.
App. Ct. 1997); In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. Ct. 1994); Herron v. State, 729
N.E.2d 1008 (Ind. App. 2000); Peo ple v. Hardy, 469 N.W.2d 50 (Mich. App. 1991); State v.
Martinez, 137 P.3d 1195 (N.M. App. 2006); Collins v. State, 890 S.W.2d 893 (Tex. App. 1994);
State v. Dunn, 916 P.2d 952 (Wash. App. 1996); State v. Deborah J.Z., 596 N.W.2d 490 (Wis.
App. 1999).
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 321
59. A Georg ia Supreme Court decision in Jefferson v. Griffin Spalding Cou nty Hospital
Authority, 274 S.E.2d 457 (Ga. 1981) has sometimes wrongly been cited as precedent affirming
forced medical inter ventions. Because the decision was reached on an emergency basis without
the benefit of research, written briefs, or pa rticipation of expert amicus, because subsequent
Georgia cour t rulings have rejected the argument that a pregnant women may be held liable for
endangering a fetus inside her, State v. Luster, 419 S.E.2d 32 (Ga. Ct. App. 1992) and Hillman
v. State, 503 S.E.2d 610 (Ga. Ct. App. 1998), and because this case provides a well- k nown
example of doctor’s predictions of harm being wrong (Berg 1981), this decision does not have
precedential value even in Georgia.
60. Whit ner v. State, 492 S.E.2d 777 (S.C. 1997). The existence of tribal codes that appear
to authorize tribal aut horities to arrest, detain, or forcibly treat pregnant women in a variety
of circumstances suggests the need for further research into this category of law and the cases
that may have ensued.
61. People v. Moten, 280 Cal. Rptr. 602 (Cal. Ct. App. 1991); State v. Chapa, No. 01–
7021CFA02 (Fla. Cir. Ct. Palm Beach County Jan. 3, 2002); People v. Sp encer, No.
98CR1730901 (Ill. Cir. Ct. Cook County Sept. 2, 1998) (Nowinski, J.); State v. Bedgood, No.
05CR053615 (N.C. Dist. Ct. Wilson County July 19, 2006); Patton v. State, No. F- 2000 –1232
(Okla. Crim. App. Oct. 15, 2001); Commonwealth v. Chernchick, No. CP- 35- CR- 1620–2004
(Pa. Ct. Com. Pl. Lackawanna County Jan. 28, 2005) (Geroulo, J.).
62. Jaurigue v. Justice Court, No. 18988 (Cal. Super. Ct. San Benito County Aug. 21, 1992)
(Chapman, J.); People v. Jones, No. 93–5 (Cal. Justice Ct. Siskiyou Count y July 28, 1993)
(Kosel, J.); Hillman v. State, 503 S.E.2d 610 (Ga. Ct. App. 1998).
63. State v. Ashley, 701 So. 2d 338 (Fla. 1997).
64. State v. Garrick, No. 95- GS- 40–08467 (S.C. Ct. Gen. Sess. Rich land County Dec. 2,
1997) (Cooper, J.).
fetuses that women carry, nurture, and sustain. No state has rewritten its
drug delivery or distribution laws to apply to the transfer of drugs through
the umbilical cord. To date no state has adopted a personhood measure,
and no law exists at the state or federal level that generally exempts preg-
nant women from the full protection afforded by federal and state consti-
tutions.59 In 1997, as a result of a judicial ruling (not legislation), South
Carolina became the only state during the time period covered by our
study (1973–2005) to authorize the prosecution of pregnant women.60
Nevertheless, our study documents hundreds of arrests or equivalent
deprivations of liberty, with the majority relying on interpretations and
applications of criminal laws that were never intended to be used to punish
women in relationship to their own pregnancies. In 86 percent of the cases
(n = 354), the efforts to deprive pregnant women of their liberty occurred
through the use of existing criminal statutes intended for other purposes
(see table 1). In those cases the charges most frequently filed were child
abuse or child endangerment (n = 204).
Sixty- eight cases involved women who experienced miscarriage, still-
birth, or infant death. In all but six cases,61 prosecutors attributed the loss
entirely to actions or inactions that occurred during the woman’s preg-
nancy. In forty- eight of those cases, women were charged under varia-
tions of the state’s homicide laws, including such crimes as feticide,62
manslaughter,63 reckless homicide, homicide by child abuse,64 and first-
322 Journal of Health Politics, Policy and Law
degree murder.65 In four cases in which a woman’s actions were described
as inducing a self- abortion, she was also charged under murder or man-
slaughter statutes.66
Some of those statutes did not require any intent to end the pregnancy.
For example, Regina McKnight, the African American woman from South
Carolina discussed above, was convicted of homicide by child abuse even
though all parties in the action, including the state, agreed that she had no
intention of ending the pregnancy.
The vast majority of women (n = 295) were charged with felonies,
which are offenses punishable by more than one year of incarceration.
African American women were significantly more likely than white
women to be charged with felonies (see table 2). Eighty- five percent of
African American women were charged with felonies, compared with 71
percent of white women.
Identifying the Underlying Legal Theory
As discussed above, appellate courts have overwhelmingly rejected efforts
to use existing criminal and civil laws intended for other purposes (e.g.,
to protect children) as the basis for arresting, detaining, or forcing inter-
ventions on pregnant women (Fentiman 2006). Given the lack of spe-
cific legislative authority, we sought to determine what legal theory was
offered. In virtually every case in which we could identify the underlying
legal theory, we found it to be the same as that asserted by proponents of
personhood measures: namely, that the fertilized egg, embryo, or fetus
should be treated as if it were completely legally separate from the preg-
nant woman herself. Prosecutors, judges, and hospital counsel argued
that the legal authority for their actions came directly or indirectly from
feticide statutes that treat the unborn as legally separate from pregnant
women, state abortion laws that include language similar to personhood
measures, and Roe v. Wade, misrepresented as holding that fetuses, after
viability, may be treated as separate persons.
Today, thirty- eight states and the federal government have passed feti-
cide or unborn victims of violence acts or amended their murder statutes
65. State v. Hernandez, No. CF- 2004– 4801 (Okla. Dist. Ct. Okla homa County Dec. 21,
2007).
66. People v. Tucker, No. 147092 (Cal. Santa Barbara- Goteta Mun. Ct. June 1973); State v.
Ashley, 701 So. 2d 338 (Fla. 1997); Hillman v. State, 503 S.E.2d 610 (Ga. Ct. App. 1998); Com-
monwealth v. Pitchford, No. 78CR392 (Ky. Cir. Ct. Warren County Aug. 30, 1978); People v.
Jenkins, No. 900– 84 (N.Y. Westchester County Ct. Nov. 5, 1984).
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 323
to include the unborn (National Conference of State Legislators 2012).67
Such laws make it a crime to cause harm to a “child in utero” and recog-
nize everything from a zygote to a fetus as an independent “victim,” with
legal rights distinct from the woman who has been harmed. These laws
are generally passed in the wake of a violent attack on a pregnant woman
and, as in Texas, are described as creating “a wall of protection for preg-
nant women and their unborn children” (Hupp 2003; emphasis added).
These laws, however, have also been used to provide the purported author-
ity for arresting pregnant women themselves.
As cases documented in this study demonstrate, women in California,68
Georgia,69 Tennessee,70 South Carolina,71 and Utah who suffered still-
births or delivered babies who died shortly after birth have been charged
directly under state feticide laws. In Utah a feticide law was used as the
basis for arresting and charging Melissa Rowland. Rowland gave birth
to twins, one of whom was stillborn. Rowland was arrested on charges
of criminal homicide, a first- degree felony, based on the claim that she
had caused the stillbirth by refusing to have cesarean surgery two weeks
earlier.72 A spokesman for the Salt Lake County district attorney’s office
explained the homicide charge this way: “The decision came down to
whether the dead child — a viable, if unborn, being as defined by Utah
law — died as a result of another person’s action or failure to take action.
That judgment . . . is required by Utah’s feticide law, which was amended
in 2002 to protect the fetus from the moment of conception” (Johnson
2004).
Even when women are not charged directly under feticide laws, such
laws are used to support the argument that generally worded murder stat-
utes, child endangerment laws, drug delivery laws, and other laws should
be interpreted to permit the arrest and prosecution of pregnant women in
relationship to the embryos or fetuses they carry.
Texas’s feticide law (SB 319), enacted as the Prenatal Protection Act,
was used in precisely this way. As the Austin Chronicle reported, “The
bill passed, was signed into law by Gov. Rick Perry, and took effect on
67. Federal Unborn Victims of Violence Act, 18 U.S.C. § 1841 (2004).
68. People v. Tucker, No. 147092 (Cal. Santa Barbara- Goteta Mun. Ct. June 1973); Jaurigue
v. Justice Court, No. 18988 (Cal. Super. Ct. San Benito County Aug. 21, 1992) (Chapman, J.);
People v. Jones, No. 93–5 (Cal. Justice Ct. Siskiyou County July 28, 1993) (Kosel, J.).
69. Hillman v. State, 503 S.E.2d 610 (Ga. Ct. App. 1998).
70. State v. Craig, No. S14068 (Tenn. Crim. Ct. Car ter County July 13, 1999) (C upp, J.);
State v. Ferguson, No. 82392 (Tenn. Crim. Ct. Knox County July 22, 2005) (Leibowitz, J.).
71. State v. McKnight, 576 S.E.2d 168 (S.C. 2003).
72. State v. Rowland, No. 041901649 (Utah Dist. Ct.- 3d Apr. 7, 2004) (Fuchs, J.).
324 Journal of Health Politics, Policy and Law
73. Ward v. State, 188 S.W.3d 874 (Tex. App. 2006); see also Ex parte Perales, 215 S.W.3d
418 (Tex. Crim. App. 2007) (citing with approval Ward v. State, 188 S.W.3d 874); Smith v. State,
No. 07–04 –0490- CR, 2006 WL 798069 (Tex. App. Mar. 29, 2006) (mem.) (incorporating Ward
v. State, 188 S.W.3d 874).
74. Mo. A nn. Stat. § 1.205 (West 2011); see Webster v. Reproductive Health Services, 492
U.S. 490 (1989); Stiles v. Blunt, 912 F.2d 260 (8th Cir. 1990).
75. Mo. Ann. Stat. § 1.205(4) (West 2011).
76. State v. K.L ., No. 03CR113048 (Mo. Cir. Ct. Chariton County Dec. 13, 2004).
77. State v. Pinder (Mo. Cir. Ct. Pulaski County Nov. 22, 1991).
78. In re Fetus Brown, 689 N.E.2d 397, 404 (Ill. App. 1997).
Sept. 1, 2003. A mere three weeks later, 47th District Attorney Rebecca
King (prosecuting in Potter and Armstrong counties) penned a letter to
‘All Physicians Practicing in Potter County’ — Amarillo — informing them
that under SB 319 ‘it is now a legal requirement for anyone to report a
pregnant woman who is using or has used illegal narcotics during her
pregnancy’ ” (Smith 2004).
Rather than refuse this demand from the district attorney, health care
providers complied. As a result, more than fifty Potter County women were
reported, charged with crimes, and in many cases incarcerated (Thomas
2006). Some of these arrests were challenged. In 2006, a Texas Court of
Appeals finally held that the Prenatal Protection Act did not authorize
the arrests. In spite of this decision, however, some of the women were
incarcerated for years while their cases worked their way through the
court system.73
Antiabortion statutes that include statements of separate rights for the
unborn, similar to those asserted by personhood measures, are also rou-
tinely used to justify arrests, detentions, and forced surgeries on women
who had no intention of ending a pregnancy. For example, the 1986 Mis-
souri Abortion Act includes a preamble stating that life begins at concep-
tion and that “the laws of this state shall be interpreted and construed
to acknowledge on behalf of the unborn child at every stage of develop-
ment, all the rights, privileges, and immunities available to other persons,
citizens, and residents of this state.”74 Although the statute contains an
explicit provision protecting pregnant women from punishment, Missouri
prosecutors have used the law to justify the arrests of scores of pregnant
women,75 including one who admitted to using marijuana once while she
was pregnant76 and another who drank alcohol.77 An Illinois abortion law
stating that “an unborn child is a human being from the time of concep-
tion and is, therefore, a legal person for the purposes of the unborn child’s
right to life” was cited as authority for forcibly restraining, overpowering,
and sedating a pregnant woman in order to carry out a blood transfusion
she had refused.78
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 325
79. See, for example, State ex. rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729 (Wis. 1997).
80. See, for example, Findings and Orders at 6, In re Unborn Child Corneau, No. CP- 00-
A- 0 022 (Mass. Juv. Ct. Attleboro Div. Aug. 29, 2000); Pemberton v. Tallahassee Mem’l Reg’l
Med. Ctr., 66 F. Supp. 2d 1247, 1249 (N.D. Fla. 1999); Motion for Special Injunction Order
and Appointment of Gua rdian, WVHCS- Hospital, Inc. v. Doe, No. 3- E 2004 (Pa. Ct. Co. Pl.
Luzerne County Jan. 14, 2004) at 3.
81. Fin ding s an d Or ders at 6, In re Unborn Child Corneau, No. CP- 00- A- 0022 (Mass. Juv.
Ct. Attleboro Div. Aug. 29, 2000).
82. Motion for Special Injunction Order and Appointment of Guardian, WVHCS- Hospital,
Inc. v. Doe, No. 3- E 20 04 (Pa. Ct. Co. Pl. Luzerne County Jan. 14, 2004) at 3.
83. WVHCS- Hospital, Inc. v. Doe, No. 3- E 2004 (Pa. Ct. Co. Pl. Luzerne County Jan. 14,
2004).
84. Pemberton v. Tallahassee Mem’l Reg’l Med. Ctr., 66 F. Supp. 2d 1247, 1249 (N.D. Fla.
1999).
In Roe v. Wade, the US Supreme Court explicitly rejected the claim
that fetuses, even after attaining viability, are separate legal persons with
rights independent of the pregnant women who carry, nurture, and sustain
them. Still, consistent with the goals of personhood measures, prosecu-
tors, hospital attorneys, and judges frequently misrepresent the decision
to stand for the opposite meaning (Gallagher 1987). They claim that Roe
instead establishes that viable fetuses must be treated as legal persons
fully separate from the pregnant woman.79 This misstatement of Roe’s
actual holding has been used in numerous cases as authority for depriving
pregnant women of their liberty.80
A Massachusetts trial- level court relied on this distortion of Roe when
it ordered Rebecca Corneau, a thirty- two- year- old white woman, impris-
oned so the state could force her to undergo medical examinations over
her religious objections.81 In Pennsylvania a hospital sought a court order
to force Amber Marlowe, a twenty- five- year- old white woman, to undergo
cesarean surgery. Counsel for the hospital cited Roe for the proposition
that “Baby Doe, a full term viable fetus, has certain rights, including the
right to have decisions made for it, independent of its parents, regarding its
health and survival.”82 The court granted the order, awarding the hospital
custody of a fetus before, during, and after delivery and giving the hos-
pital the right to force Marlowe to undergo cesarean surgery without her
consent.83 In Florida Roe was misused as authority for taking Pemberton,
the Florida woman discussed above who attempted a VBAC, into police
custody and forcing her to undergo cesarean surgery. As a trial- level fed-
eral court asserted, “Whatever the scope of Pemberton’s personal consti-
tutional rights in this situation, they clearly did not outweigh the interests
of the State of Florida in preserving the life of the unborn child. . . . This
is confirmed by Roe v. Wade.”84
In other words, where prosecutors, judges, and other state actors have
326 Journal of Health Politics, Policy and Law
85. See, for example, In re Viable Fetus of H.R., No. 96- JC- 08 (Wis. Cir. Ct. Ashland County
Feb. 26, 1996).
86. See, for example, State v. Griffin, No. C567255, C569256 (S.C. Ct. Gen. Sess. Charleston
County Oct. 7, 1989).
articulated legal arguments for depriving pregnant women of their liberty,
they are the same as those made in support of personhood measures; both
rely on the idea that state actors should be empowered to treat fertilized
eggs, embryos, and fetuses as completely, legally separate from the preg-
nant women.
Interventions in Health Care Settings
and the Role of Medical Professionals
In this section we discuss findings indicating that some medical and
public health professionals have worked with law enforcement and other
state officials to deprive pregnant women of their liberty. Although it is
often presumed that medical information is confidential and rigorously
protected by constitutional and statutory privacy protections as well
as principles of medical ethics, cases we have identified challenge that
assumption. Similarly, the results of those disclosures, including bedside
interrogations by police and other state authorities, likely contradict most
medical patients’ expectations of privacy and humane treatment.
We note that state and federal law is extremely variable in terms of when
and whether health care providers may be required to report information
to civil child welfare authorities that would reveal evidence of a pregnant
woman’s drug or alcohol use or abuse (Paltrow, Cohen, and Carey 2000;
Ondersma, Malcoe, and Simpson 2001). These laws also sometimes fail
to define what must be reported (i.e., the term “drug- affected” newborn in
the federal law addressing this issue is not defined) (Weber 2007). Man-
dated reporting and civil child welfare responses deserve more attention
than can be provided here. Instead, we focus on our findings indicating
a wide variety of disclosures, some of which are clearly prohibited by
law and all of which challenge the idea that medical and public health
approaches are distinct from law enforcement approaches addressing drug
use and maternal, fetal, and child health issues (Gómez 1997).
In two- thirds of the cases (n = 276), we were able to identify the mech-
anism by which the case came to the attention of police, prosecutors,
and courts. In 112 cases, the disclosure of information that led to the
arrest, detention, or forced intervention was made by health care, drug
treatment, or social work professionals, including doctors,85 nurses,86
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 327
87. See, for example, In re Tolbert (Fla. Cir. Ct. Palm Beach County Feb. 28, 1997); State v.
DeJesus, No. 00CR051678 (N.C. Super. Ct. Henderson County June 30, 2000).
88. State v. Pedraza, No. D- 608- CR- 2005 –0 0003 (N.M. Dist. Ct. Grant County May 31,
2007).
89. See, for example, State v. Macy, No. 00- GS- 12–801 (S.C. Ct. Gen. Sess. Chester County
June 28, 2000).
90. Ferguson v. City of Charleston, 532 U.S. 67 (2001); Ferguson v. Cit y of Charleston, 308
F.3d 380 (4th Cir. 2002).
mid wives,87 hospital social workers,88 hospital administrators, and drug
treatment counselors (Dube 1998). In at least 47 cases, health care and
hospital- based social work professionals disclosed confidential informa-
tion about pregnant women to child welfare or social service authorities,
who in turn reported the case to the police.
Hospital- based health care providers and social workers appear more
likely to disclose information about patients of color (see table 2). In 240
cases, both race and reporting mechanism were known. Nearly half (48
percent) of African American women were reported to the police by
health care providers, compared to less than one- third (27 percent) of
white women. White women, by contrast, were far more likely (45 per-
cent) to have their cases come to the attention of the police through other
mechanisms, such as reports by a probation or parole officer, an arrest
unrelated to pregnancy,89 or a report from a boyfriend or family member.
Far from being a bulwark against outside intrusion and protecting
patient privacy and confidentiality, we find that health care and other
“helping” professionals are sometimes the people gathering informa-
tion from pregnant women and new mothers and disclosing it to police,
prosecutors, and court officials. In some cases hospital medical staff
have specifically collaborated with police and prosecutors to develop a
coordinated system of searching pregnant women for evidence of illegal
drug use, reporting women who test positive to the police, and helping the
police carry out arrests of the hospitalized women. In Ferguson v. City of
Charleston, the US Supreme Court held that such collaboration violated
a patient’s Fourth Amendment constitutional rights to privacy. Ferguson
also held that medical staff who collect and disclose patient information
in order to advance law enforcement purposes may be held liable for dam-
ages.90 Nevertheless, as our earlier discussion of cases from Amarillo,
Texas, demonstrates, collection of patient information for law enforcement
purposes has occurred since Ferguson.
Our research also revealed that in some cases making a report to child
welfare authorities was no different than making a report directly to law
enforcement officials. For example, as part of a long-standing partner-
328 Journal of Health Politics, Policy and Law
91. Kilmon v. State, 905 A.2d 306 (Md. 2006); State v. Cruz, No. 0N00014322 (Md. Dist.
Ct. Talbot County Aug. 5, 2005), rev’d sub nom Kilmon v. State, 905 A.2d 306 (Md. 2006).
92. State v. Watkins, No. 492–291–047643 (Tenn. Gen. Sess. Ct. Montgomery County Aug.
21, 1995) (Catalano, J.).
93. State v. DeJesus, No. 00CR051678 (N.C. Super. Ct. Henderson County June 30, 2000).
94. State v. Parson, No. 95- CF- 53 (Wis. Cir. Ct. Kenosha County Apr. 28, 1995) (Bastianelli,
J.); State v. Maddox, No. K90–1936- CFA (Fla. Cir. Ct. Seminole County Sept. 17, 1992); State
v. Earls, No. 05- GS- 11312 (S.C. Ct. Gen. Sess. Cherokee County Apr. 20, 2005) (Birch, J.);
State v. Tanner, No. CF- 2005–309 (Okla. Dist. Ct. Washington County Feb. 19, 2008).
ship among social workers, local police, and the Maryland state attorney’s
office, medical personnel at Easton Memorial Hospital reported positive
drug test results of new mothers or their newborns to the Talbot County
Department of Social Services, which in turn, and by agreement, passed
that information on to the police.91 In Tennessee, Anita Gail Watkins,
a forty- three- year- old African American woman, was reported to the
Department of Human Services (DHS) after she confided in her doctor
that she had used cocaine before the birth of her son. A doctor at the hos-
pital explained that “our goal from a medical standpoint is the best out-
come for the infant. When there is evidence of drug use, we notify DHS.
Where the trail goes from there is not up to us.” The disclosure to DHS
led to a Clarksville Police Department detective, who arrested Watkins
and charged her with the crime of reckless endangerment (Crosby 1995).92
Disclosures of patient information to law enforcement authorities,
whether directly from health care providers or conveyed through child
welfare agencies, have resulted in bedside interrogations that are remi-
niscent of the days before Roe when women suspected of having illegal
abortions were subjected to humiliating police questioning about intimate
details of their lives while lying, and sometimes dying, in their hospital
beds (Reagan 1998). For example, Sally Hughes DeJesus, a twenty- eight-
year- old white woman from North Carolina, experienced a relapse and
used cocaine after eleven months of abstinence. She told her midwife what
had happened, reporting that “I told her I needed help. . . . I was afraid for
my baby” (Beiser 2000). According to a news story, the midwife told the
hospital where DeJesus was having the baby about her drug use. When
the doctors there performed a drug test on the healthy newborn and found
that it had been exposed prenatally to cocaine, they called the police.
Following this report, “As DeJesus lay recuperating in her hospital room
in Henderson County, North Carolina, sheriffs marched in to interrogate
her” (ibid.). She was then charged with felonious child abuse.93 Cases in
this study reveal that women who had recently given birth,94 suffered a
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 329
95. People v. S mith , No. 97CF497 (I ll. Ci r. Ct. Kane County Feb. 18, 1998) (Wegner, J.);
State v. Barnett, No. 02D04–9308- CF- 611(A) (Ind. Super. Ct. Allen County May 27, 1994)
(Scheibenberger, J.).
96. Commonwealth v. Pitchford, No. 78CR392 (Ky. Cir. Ct. Warren County Aug. 30, 1978);
State v. Kennedy, No. 03- GS- 42–1708 (S.C. Ct. Gen. Sess. Spartanburg County Jan. 5, 200 4)
(Hayes, J.).
97. State v. Kolesar, No. 0000GS32 (S.C. Ct. Gen. Sess. Lexington County May 3, 2005).
98. State v. Kolesar, No. 0000GS32 (S.C. Ct. Gen. Sess. Lexington County May 3, 2005).
99. Voluntary Statement of Angela Kennedy (Dec. 11, 1998), State v. Kennedy, No. 03- GS-
42–1708 (S.C. Ct. Gen. Sess. Spartanburg County Jan. 5, 2004) (Hayes, J.) (statement resulting
from an interrogation in a hospital room).
100. Voluntar y Statement of Angela Kennedy (Dec. 11, 1998), State v. Kennedy, No. 03- GS-
42–1708 (S.C. Ct. Gen. Sess. Spartanburg County Jan. 5, 2004) (Hayes, J.) (statement resulting
from an interrogation in a hospital room).
101. State v. Rowland, No. 041901649 (Utah Dist. Ct.- 3d Apr. 7, 2004) (Fuchs, J.).
stillbirth,95 or were believed to have self- induced an abortion96 were sub-
jected to bedside interrogations.97 Women have been interrogated while
still experiencing the effects of sedatives given during cesarean surgery.98
In one case, police were called so quickly that they were present when
the woman was informed she had lost the pregnancy.99 The detective who
interrogated the bereaved woman in that case asked, among other things,
“Did you do everything in your power to ensure that you’d have a healthy
baby?”100
In many cases, hospital staff disclosed information to police and pros-
ecutors despite principles of patient confidentiality and apparently without
any court order or other legal authority requiring them to do so. Such
disclosures were clear in the Melissa Rowland case discussed above. The
probable cause statement (describing the grounds for the fetal homicide
charge) relied extensively on statements made by doctors and nurses who
had examined Rowland.101 The fact that Rowland signed a form acknowl-
edging that she was leaving the hospital against medical advice was used
against her. While health care providers at LDS (Latter Day Saints) Hos-
pital freely discussed Rowland’s case with the police, the hospital’s official
spokesperson nevertheless cited “medical privacy” as one of the reasons
for declining to comment on the case to the press (Sage 2004).
A Wisconsin obstetrician who was providing twenty-four- year- old
Angela M. W. with prenatal care suspected that she was using cocaine
or other drugs. When blood tests allegedly confirmed the obstetrician’s
suspicion, he confronted Angela about her drug use. She then stopped
coming in for scheduled appointments, at which point the obstetrician
reported her to the Waukesha Department of Health and Human Services
(DHHS). Relying on this information, DHHS petitioned the juvenile court
for an order directing the Waukesha County Sheriff’s Department to take
330 Journal of Health Politics, Policy and Law
102. Wisconsin ex. rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729, 732 (Wis. 1997).
103. See, fo r exa mple, In re Margaret G. (Iowa Polk County 1992); State v. Sunday, No.
CF- 2005–288 (Okla. Dist. Ct. Washington County Feb. 8, 2008).
104. State v. Joseph, No. 92- GS- 107304 (S.C. Ct. Gen. Sess. Charleston County May 3,
1993).
105. Se e, for example, State v. Lizalde, No. CF02–061734A- XX (Fla. Cir. Ct. Polk County
Mar. 18, 2004); Patton v. Sta te, No. F- 2000 –1232 (Okla. Crim. App. Oct. 15, 2001); State v.
Elrod, No. CF- 2004 –4032 (Okla. Dist. Ct. Tulsa County Oct. 25, 2005); State v. Coleman, No.
02D04–0004- MC- 000590(A) (Ind. Cir. Ct. Allen County Apr. 13, 2000) .
Angela’s fetus into protective custody. With the obstetrician’s sworn state-
ment against his patient as the sole source of information about the case,
the juvenile court appointed a guardian ad litem for Angela’s fetus and
issued an order requiring that the fetus “be detained . . . and transported
to Waukesha Memorial Hospital for inpatient treatment and protection.”
According to the order, “Such detention will by necessity result in the
detention of the unborn child’s mother, [Angela].”102 This 1997 Wisconsin
case occurred before the state adopted a law specifically permitting the
commitment of a pregnant woman who “habitually lacks self- control in
the use of alcohol beverages or controlled substances.” Notably, however,
this law does not mandate that health care providers report their pregnant
patients to state authorities (Martino 1998; Quirmbach and Montagne
1998).
The Angela M. W. case illustrates that threats of punitive responses
discourage some women from continuing medical care.103 In the Mar-
lowe case discussed earlier, Marlowe fled the hospital while in active
labor rather than submit to unnecessary surgery. She found a hospital
that respected her decision making and delivered a healthy baby vagi-
nally. In South Carolina, a thirty- three- year- old biracial woman, Theresa
Joseph, was in her first trimester of pregnancy when she was admitted to
the Medical University of South Carolina for treatment of a severe foot
infection. Because Joseph was pregnant and acknowledged having a drug
problem, she was threatened with arrest under the hospital’s policy. Joseph
responded to the threat by leaving the hospital against medical advice
and avoiding both prenatal care and drug treatment for the remainder
of her pregnancy.104 Several other women not only avoided prenatal care
and hospital births because they feared child removal or arrest but also
delayed seeking, or failed altogether to obtain, medical care for them-
selves or their newborn babies for the same reasons.105
Alma Baker, a thirty- four- year- old white woman in Texas, was arrested
on charges of delivering a controlled substance to a minor when her twins
were born and tested positive for THC, a chemical compound found in
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 331
106. State v. Baker, No. 48426- A (Tex. Dist. Ct. Potter County July 11, 2004).
107. See, for example, Johnson v. State, 602 So. 2d 1288, 1297 (Fla. 1992) (noting the oppo-
sition of medical groups to the prosecution of pregnant women under a drug deliver y statute
and concluding that “[t]he Court declines the State’s invitation to walk down a path that the law,
public policy, reason and common sense forbid it to tread”).
108. State v. Arnold, No. 94- GS- 24–107 (S.C. Ct. Gen. Sess. Greenwood County Feb. 16,
1994) (Hughston, J.).
marijuana.10 6 Baker squarely addressed how fear of reporting and punish-
ment may have a deterrent effect when she said, “If I would have known
that I’d get in trouble for telling my doctor the truth [that she was using
cannabis to calm her nausea] I would have either lied or not gone to the
doctor” (Gorman 2004).
Individual health care providers and social workers have in some
instances arguably violated ethical standards by breaching privacy and
confidentiality, overriding patient decision making, and facilitating the
arrest or other punitive detention of a patient (Jos, Marshall, and Perlmut-
ter 1995). To be sure, professional medical, public health, and social work
organizations and individuals have also played a vital role in challenging
such actions. Our research found that more than 250 professional and
advocacy organizations and individual experts have joined one or more
amicus curiae (friend of the court) briefs in cases documented in this
study. These briefs bring courts’ attention to the dangerous impact that
arrests, detentions, and forced interventions have on maternal, fetal, and
child health (e.g., Abrahamson et al. 1998).107
Implications
The hundreds of cases this study documents raise numerous concerns
about the health and dignity afforded to pregnant women in the United
States. Pregnancy and childbirth continue to carry significant life and
health risks (Centers for Disease Control and Prevention [CDC] 2000,
2008; Amnesty International 2010; Save the Children 2010; Raymond
and Grimes 2012). In many of the cases, women experienced those risks
(often voluntarily undergoing cesarean surgery to bring forth life) only
to find that doing so provided the basis for being charged with a crime.
Some affidavits in support of the arrest describe giving birth as part of the
alleged crime. For example, one affidavit explained that the woman “did
willfully and unlawfully give birth to a male infant.”108 In some cases the
criminal charges filed and comments made by arresting officers, prosecu-
tors, and judges were explicit in denying dignity to both women and their
332 Journal of Health Politics, Policy and Law
109. See, for example, State v. Soban, No. 16CR1999– 03190 (Mo. Cir. Ct. Jackson County
Jan. 17, 2006).
110. State v. Crawley, Transcript of Record (Ct. Gen. Sess. Anderson Cnty., S.C., Oct. 17,
1994 ).
111. State v. Davis, No. 1990CF001924A ( Fla. Cir. Ct. Escambia County Dec. 13, 1990);
State v. Andrews, No. JU 68459 (Ohio Ct. Com. Pl. Stark County June 19, 1989).
112. See, for example, United States v. Vaughan, No. F- 2172–88B (D.C. Super. Ct. June 24,
1988) (Wolf, J.).
113. Se e, for exam ple , State v. Lowe (Wisc. Cir. Ct. Racine County June 15, 2005) (Con-
stantine, J.).
114. Se e, for exam ple , State v. Sims, No. H- 176074 (S.C. Ct. Gen. Sess. Horry County Feb.
20, 2003); State v. Kennedy, No. 03- GS- 42–1708 (S.C. Ct. Gen. Sess. Spartanburg County Jan.
5, 2004) (Hayes, J.).
115. Se e, for ex amp le, State v. Drewitt (S.C. Ct. Gen. Sess. York County Dec. 11, 1997)
(Epps, J.).
children. Accordingly, the woman did not give birth to a child but rather
to a “victim,”10 9 a “bastard,”110 or a “delinquent.”111
Our findings challenge the notion that arrests and detentions promote
maternal, fetal, and child health or provide a path to appropriate treat-
ment.112 Significantly, detention in health and correctional facilities has
not meant that the pregnant women (and their fetuses) received prompt or
appropriate prenatal care.113 Our research into cases claiming that arrests
and detentions would ensure that pregnant women were provided with
appropriate drug treatment or that only women who had refused treat-
ment would be arrested or prosecuted overwhelmingly found that such
claims were untrue.114 In some cases women were arrested despite the
fact that they were voluntarily participating in drug treatment.115 Our find-
ings also lend support to the medical and public health consensus that
punitive approaches undermine maternal, fetal, and child health by deter-
ring women from care and from communicating openly with people who
might be able to help them (Roberts and Pies 2011; Roberts and Nuru- Jeter
2010; Jessup et al. 2003; Poland et al. 1993; Gehshan 1993; US General
Accounting Office 1990). Cases documenting pregnant women’s unwill-
ingness to seek help for themselves, and in some cases for their newborns,
provide compelling anecdotal evidence that punitive measures and the
legal arguments supporting them will undermine rather than advance state
interests in public health.
Our study also challenges the idea that arrests, detentions, and forced
interventions of pregnant women are extremely rare and occur only in
isolated, exceptional circumstances against a narrowly definable group of
women. Quite to the contrary, cases documented in this study make clear
that arrests, detentions, and forced interventions have not been limited to
pregnant women who use a certain drug or engage in a particular behav-
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 333
ior. Our research shows that these state interventions are happening in
every region of the country and affect women of all races.
At the same time, disturbing patterns emerge from our data, which
show that the majority of cases have included an allegation relating to the
use of an illegal drug (overwhelmingly cocaine), that low- income women,
especially in some southern states, are particularly vulnerable to these
state actions, and that pregnant African American women are significantly
more likely to be arrested, reported by hospital staff, and subjected to
felony charges.
These findings are consistent with investigative news articles report-
ing that African Americans are more likely to be subjected to drug test-
ing and reporting (Rotzoll 2001; Anderson 2008); studies finding racial
disparities in drug testing and reporting of African American women
(Chasnoff, Landress, and Barrett 1990; Ellsworth, Stevens, and D’Angio
2010; Roberts and Nuru- Jeter 2011), and previous research concerning
court- ordered interventions (Kolder, Gallagher, and Parsons 1987). They
are also consistent with well- documented racially disproportionate appli-
cation of criminal laws to African American communities in general and
to pregnant African American women in particular (Roberts 1997; Flavin
2009; Alexander 2010; Tonry 2011).
A full discussion of the implications of our research with regard to race,
gender, and the war on drugs is beyond the scope of this article. It is impor-
tant to note, however, that the clear racial disparities identified cannot be
explained as the consequences of “color- blind” decisions to exercise state
control over pregnant women who use drugs or more specifically those
who use cocaine. Although which substances are most likely to be used
may vary with population subgroups and geography, rates of drug use and
dependency are similar across races (Mathias 1995; Hans 1999; National
Institute on Drug Abuse 2003; Substance Abuse and Mental Health Ser-
vices Administration 2009, 2011; Roberts and Nuru- Jeter 2011).
Moreover, the risks of harm from prenatal exposure to cocaine are not
qualitatively different from risks posed by other factors (legal and illegal),
and the harms that have been associated with prenatal exposure to cocaine
are not easily distinguishable from other contributing and often correlated
factors (Zuckerman et al. 1989; Mayes et al. 1992; Little, Wilson, and
Jackson 1996; Slotnick 1998; Addis et al. 2001; Chavkin 2001; Lewis et
al. 2004; Ackerman, Riggins, and Black 2010). In 2001 the Journal of
the American Medical Association published a comprehensive analysis
of the developmental consequences of prenatal exposure to cocaine that
concluded:
334 Journal of Health Politics, Policy and Law
116. See, for example, State v. Powell, No. C569305 (S.C. Ct. Gen. Sess. Charleston County
Oct. 14, 1989).
117. See, for example, State v. Young (S.C. Ct. Gen. Sess. Oct. 5, 1989) (Guedalia, J.).
118. See, for example, State v. Grif fin, No. C567255, C569256 (S.C. Ct. Gen. Sess. Charles-
ton County Oct. 7, 1989).
Among children aged 6 years or younger, there is no convincing evi-
dence that prenatal cocaine exposure is associated with developmen-
tal toxic effects that are different in severity, scope, or kind from the
sequelae of multiple other risk factors. Many findings once thought to
be specific effects of in utero cocaine exposure are correlated with other
factors, including prenatal exposure to tobacco, marijuana, or alcohol,
and the quality of the child’s environment. (Frank et al. 2001: 1613–14)
The authors of the study condemned as “irrational” policies that selec-
tively “demonize” in utero cocaine exposure (ibid.: 1620). Indeed, the US
Sentencing Commission (2007), in adjusting the penalties associated with
crack- related offenses, did so in part because it concluded that “the nega-
tive effects from prenatal exposure to cocaine, in fact, are significantly
less severe than previously believed” and that those negative effects are
similarly correlated with the effects of prenatal exposure to other drugs,
both legal and illegal.
Finally, as has been compellingly argued by historians, sociologists,
legal scholars, and others, the willingness to believe that cocaine, and
especially crack cocaine, required uniquely punitive responses was
derived in large measure from racist assumptions about African Ameri-
cans in general and African American mothers in particular (Gómez
1997; Morgan and Zimmer 1997; Reinarman and Levine 1997; Roberts
1997; Humphries 1998, 1999; Collins 2000: 69–96; Zerai and Banks
2002; Hart 2012). The harsh treatment imposed on the pregnant women
in our study, including being taken straight from their hospital beds and
arrested shortly after delivery,116 being taken in handcuffs, sometimes
shackled around the waist,117 and at least one woman being shackled dur-
ing labor,118 is consistent with a long and disturbing history of devaluing
African American mothers (Roberts 1997; Ocen 2011; Roth 2012).
Our review of the legal authority articulated in support of the actions
taken against the pregnant women identified in this study found that it
rested on the claim that state authorities should have the power to arrest,
detain, and forcibly intervene on pregnant women in order to protect the
fertilized eggs, embryos, and fetuses inside them. We believe the implica-
tions are clear: if feticide statutes that purport to protect pregnant women
Paltrow and Flavin ■ Forced Interventions on Pregnant Women in the US 335
and fetuses from third- party attacks and existing laws that declare sepa-
rate rights for eggs, embryos, and fetuses are already being used as the
basis for justifying depriving pregnant women of their liberty, we must
expect that personhood measures will be used this way, too. Thus, far
from being a scare tactic, our findings confirm that if passed, personhood
measures not only would provide a basis for recriminalizing abortion,
they would also provide grounds for depriving all pregnant women of
their liberty.
Our findings also make clear that far more than the right to decide to
have an abortion is at stake if such laws pass. All pregnant women, not
just those who try to end a pregnancy, will face the possibility of arrest,
detention, and forced intervention as well as threats to and actual loss of a
wide range of rights associated with constitutional personhood (Gallagher
1987; Johnson 1989; Roberts 1991; Daniels 1996; Boyd 1999; Campbell
2000; Solinger 2002; Roth 2003; Fentiman 2006; Cherry 2007). Indeed,
we have identified more than two hundred cases initiated against pregnant
women since 2005 that also overwhelmingly rest on the claim of sepa-
rate rights for fertilized eggs, embryos, and fetuses (see, e.g., James 2010;
Pilkington 2011; Robinson 2012; Calhoun 2012; ABC News 2 2012).
While voters in Colorado and Mississippi defeated personhood ballot
measures three times (Colorado Secretary of State 2008, 2010; Missis-
sippi Secretary of State 2011b), Personhood USA, the organization spon-
soring these measures, has promised to continue its efforts to get them
passed (Pesta 2012; Vanderveen 2012). Similar bills, including the so-
called Sanctity of Human Life Act (H.R. 212, 112th Cong. [2011]), have
been introduced in Congress. In light of these continued efforts and our
findings, we challenge health care providers, law enforcement and child
welfare officials, social workers, judges, and policy makers to examine
the role they play in the arrests and detentions of and forced interven-
tions on pregnant women. We call on these same people to develop and
support only those policies that are grounded in empirical evidence, that
in practice will actually advance the health, rights, and dignity of preg-
nant women and their children, and that will not perpetuate or exacer-
bate America’s long and continuing history of institutionalized racism.
Finally, our study provides compelling reasons for people who value preg-
nant women, whether they support or oppose abortion, to work together
against personhood and related measures so women can be assured that on
becoming pregnant they will retain their civil and human rights.
336 Journal of Health Politics, Policy and Law
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