Should pregnant people with drug use issues be jailed?

Although the mother was initially charged and convicted of murder in the stillbirth of her child, serving more than a year in jail, the dismissal of her charges led to the California attorney general weighing in on how the state’s law on murder should be interpreted in these kinds of cases.

Last year, a murder charge was dismissed in the case of a 26-yearold woman who had allegedly used methamphetamine while pregnant, with prosecutors arguing that her drug use led to the stillbirth of her child. Reproductive health and justice experts and advocates say that there is insufficient scientific evidence to draw a conclusive line between drug use during pregnancy and miscarriage or stillbirth.

They also contend that a 1970 amendment to the state’s penal code for murder only intended to criminalize third-party violence against someone who’s pregnant, and not the pregnant person. Attorney General Rob Bonta agreed earlier this month, saying, in part, “Penal Code section 187 does not impose criminal liability on a person carrying a fetus for allegedly causing the miscarriage or stillbirth of that fetus.”

To discuss this legal understanding and the reproductive health and justice issues that intersect with this interpretation, I spoke with Lucinda Finley, Joelle Puccio, and Dominika Seidman. Finley is the Frank Raichle Professor of Law at the University at Buffalo, State University of New York, where she specializes in issues of gender in the law, reproductive rights and justice, and how the law does and doesn’t support the needs and interests of pregnant women. Puccio is a registered nurse and co-founder of the Academy of Perinatal Harm Reduction, an organization working to improve the lives of pregnant people and parents with substance use disorders. Seidman is an obstetrician/gynecologist at the University of California, San Francisco and Zuckerberg San Francisco General Hospital, and co-founder of Team Lily, a program providing services to pregnant people experiencing significant barriers to care. (These interviews have been edited for length and clarity. For a longer version of this conversation, visit sandiegouniontribune.com/ sdut-lisa-deaderick-staff.html.)

The Associated Press recently reported on the California attorney general’s guidance on interpreting state law in a way that does not charge pregnant people with murder in the event of the death of a fetus, including if the pregnant person’s behavior is believed to have contributed to that death (e.g. substance use). Can you talk about why this was happening? What are some reasons that prosecutors seem to be inclined to file these kinds of charges?

Finley: These sorts of charges against women for various conduct while pregnant, that is alleged to cause harm to their fetuses, has been going on for decades.

A lot of prosecutions in the ’80s and ’90s were attributable to the sort of hysteria about a so-called “crack epidemic.” Subsequently, medical science determined that crack wasn’t nearly as harmful to babies as they thought it was. I think what’s driving several of these prosecutions now is the perception of the public health crisis regarding the use of opioids, fentanyl, methamphetamines. I think there are prosecutors in certain areas of the country, based on their politics or the politics of their constituents, who feel like they’re taking a stand in the war on drugs and standing up for the health of babies by going after pregnant women and trying to prosecute them for taking drugs while pregnant. I think it’s very linked to the political climate and the perceptions of the need to get tough on whatever the drug abuse problem of the moment is. Throughout history there have been many efforts to want to control, police, or regulate the behaviors of pregnant women, and this is just one manifestation of that.

The executive assistant district attorney in Kings County in the San Joaquin Valley, where the murder charge in the death of a stillborn child was dismissed, was quoted as saying that their cases “are not about abortion nor women’s reproductive rights in any way.” From your perspective, are they right?

Puccio: I think he probably was saying that his intention is not about abortion or reproductive rights in any way; sure, maybe he doesn’t intend for this to be about abortion, but it absolutely is. What he’s saying is, “If you put something in your body that we think might have contributed to the loss of this pregnancy, then we’re going to charge you with murder.” That is the definition of what medication abortion is, so these two issues cannot really be separated, in terms of the legal perspective. For folks that say this isn’t about abortion and not wanting to touch that hot topic, it absolutely is about abortion because, honestly, this isn’t about miscarriage or pregnancy loss. If you look at the laws that are being twisted and used to prosecute women and other people who become pregnant, none of them were intended for this purpose.

For people who read or hear about these cases and might think, “Of course people who use illegal substances while they’re pregnant should face criminal charges,” what’s your response to that understanding?

Seidman: I think what we, as a society, are really missing and forgetting there, is that substance use disorders are a medical condition. When we think about other medical conditions, high blood pressure in pregnancy or diabetes in pregnancy, for example, if someone is not able to control their blood pressure or their diabetes, we don’t charge that person with murder. If we think about a substance use disorder in the same light, we need to think about the loss of a pregnancy in a similar light, in that we were not adequately treating those substance use disorders.

lisa.deaderick@sduniontribune.com