Reproductive Carrots and Sticks

Part I: The Stick Effect: Pressure, Pain, and Punishment

Across the United States, a revived form of womb policing has led to an intensified state focus on women’s reproduction. In Utah for example, Governor Gary Herbert recently signed into law the Criminal Homicide and Abortion Revisions Act, which specifically applies to miscarriages and other fetal harms resulting from “knowing acts” committed by women. A prior version of the bill, drafted by state legislator Carl Wimmer, failed to win the support of the Governor, as it called for up to life imprisonment for women who engage in reckless behavior during pregnancy that could result in miscarriage and stillbirth. Absent from most of the new wave of legislation penalizing pregnant women are considerations about men’s conduct. For example, a 2006 peer-reviewed study published in the Journal of Obstetrics and Gynecology points out that pregnancies from men older than forty are 60% more likely to terminate in a miscarriage than those from men between the ages of twenty-five and twenty-nine.¹ Does this mean that a woman who intentionally decides to copulate with a man over forty exposes herself to the risk of criminal prosecution if a miscarriage results?

That the scope of such a law potentially extends beyond illicit drug use during pregnancy, encompassing activities ranging from consumption of alcoholic beverages and smoking, to the more innocuous, but equally dangerous, such as overeating, living near environmental hazards, or using ART, should raise concerns. How are prosecutors to decide which cases to pursue? And should miscarriages, which are issues of medical concern, now be the domain of police and prosecutors?

Ironically, the intensified interest in policing women’s reproduction by states like Utah, South Carolina, Kentucky, and others, does not translate economically or structurally into better prenatal services, maternal counseling, drug addiction rehabilitation, or social services. Rather, the effort is decisively “stick” driven; its fundamental aim is to punish without regard for the economic costs to the state, the long-term emotional and health impacts on the babies, or the psychological toll imposed on the pregnant women. Consider the following cases:

Tara Keil

“I was screaming; I needed help, and I even pounded on the door a few times, but nobody came …. And that’s when it hit me—I’m going to have this baby on my own.”²

In May 2009, Tara Keil (TK) screamed for help from her jail cell. The nineteen-year-old inmate’s contractions indicated the imminence of her son’s birth. Blood covered her hands and thighs. Amniotic fluid was on the floor of her cell. Despite her screams and pleas for help no one came to render aid. The day before, Keil was pulled over while walking to a friend’s home. Within minutes the nine-month pregnant teenager was arrested and whisked to the Dubuke County Jail, charged with violating parole conditions for a prior drug charge. A warrant had been issued for Keil after she stopped meeting regularly with her parole officer.

Despite TK indicating the nearness of her delivery on question 53 of her intake medical questionnaire, staff paid no particular attention to the pregnant girl. According to TK, after pleading to one of the guards that he call a nurse, his response was to ask whether she wanted breakfast or not. With no other options, TK sat on the metal toilet located in her cell and gave birth to her son. By the time of the nurse’s arrival, the cell, sink, toilet and other areas were covered in TK’s blood, and according to reports, the new mother was visibly shaking and crying. Two days later, the baby was placed in foster care, and TK was given a three-month sentence.

Ambrett Spencer

“I kept praying that she would just open her eyes because she looked like she was alive.”³

Studies indicate that African American women’s pain is usually misdiagnosed or treated with some skepticism on the part of doctors.⁴ Ambrett Spencer’s (AS) story fits that paradigm. In April 2006, Ambrett, a pregnant inmate at the Maricopa County Estrella Jail in Phoenix, called for assistance at 3 AM, indicating a pain level of 10 based on a scale from 1-10. She alerted jail staff that her medical condition was painful and urgent.

In her case, the nurse ordered immediate action, but the sergeant on duty declined to follow the nurse’s order. Instead, AS was shuttled to the infirmary an hour later. But there too, Ambrett, who was incarcerated for driving while intoxicated, was ignored. Her pain was not treated, nor was she taken to a hospital. Her blood pressure decreased, the pain intensified, she grew pale. An hour passed before the nurse on duty decided to call an ambulance. By that time, AS had collapsed, and the nurse was unable to get an intravenous drip into her arm. On arrival, the emergency medical technician noted, “If you are turning that color, you’re not getting enough blood to your organs and skin.” He was right. AS’s baby, Ambria, was born dead.

AS suffered from placental abruption, a condition in which fetuses have a promising rate of survival, but only if the patient receives timely treatment. The nearly four-hour wait for appropriate medical attention may have caused the baby’s death. According to John Dickerson, a reporter for an Arizona newspaper, while the number of women in Maricopa jails is relatively low, the complaints made by these women about jail conditions, including water contamination and other matters, should not be dismissed. After all, the local environmental agency found mice fecal matter in the drinking water.⁵

Paula Hale

Paula Hale (PH) was a rape victim and a drug addict.⁶ She informed hospital officials about her rape. But she never received rape counseling for the trauma and, like other women and girls with histories of sexual violence in their lives, she treated her depression and anxiety with illegal drugs.⁷ Hale’s rape resulted in a pregnancy. By deciding to carry her pregnancy to term, she ruled out an abortion and pursued prenatal care for the baby she was carrying. For her, it was a rational decision to seek treatment at the Medical University of South Carolina (MUSC), the only hospital she knew to serve poor black women like her. But, “no one bothered to link her with an appropriate drug treatment program or a trauma institute.”⁸

PH did receive prenatal care, but she did not anticipate how dramatically her life and that of her baby would change by making that decision. PH did not realize that by seeking prenatal treatment she would surrender privacy and provide presumptive consent for her medical personnel to waive confidentiality. More specifically, PH did not anticipate that MUSC nurses and doctors would test her and the baby for the presence of illicit drugs. Nor did she foresee that the medical test would become “evidence” of her drug use or turned over to police and prosecutors. As with the twenty-eight other black women snagged by the MUSC, PH was “dragged out of the hospital in chains and shackles.”⁹ To Lynn Paltrow, Executive Director of National Advocates for Pregnant Women, these haunting episodes conjured images of slavery.⁹ Indeed, race seemed to dominate every aspect of pregnant patients’ treatment at MUSC. All of the women who were turned over to police for using illegal drugs during pregnancy were black, with only one exception.⁹ In the case of the one lone white woman surrendered to police, hospital officials made sure to note on her chart that the white patient “lives with her boyfriend who is a Negro.”⁹

1. See for example:, Andrew J. Wyrobek et al., “Advancing Age Has Differential Effects on DNA Damage, Chromatin Integrity, Gene Mutations, and Aneuploidies in Sperm,” (PDF) Proceedings of the National Academy of Sciences 103.25 (2006): 9601.  [↩]
2. Bekah Porter, “Dubuquer Gives Birth In Cell Alone,” The Telegraph Herald 15 May 2009. [↩]
3. Ambrett Spencer, quoted in John Dickerson, “Arpaio’s Jail Staff Cost Ambrett Spencer Her Baby, and She’s Not the Only One,” Phoenix New Times 30 October 2008. [↩]
4. Margaret Paulson and Anthony Decker, “Health Care Disparities in Pain Management,”Journal of the American Osteopathic Association 15.6 (2005). [↩]
5. See Dickerson, John. [↩]
6. Lynn Paltrow, “South Carolina: First in the Nation for Arresting African-American Pregnant Women—Last in the Nation for Funding Drug and Alcohol Treatment,” National Advocates for Pregnant Women Briefing Paper (2003). [↩]
7. Ibid; Renae D. Duncan et al., “Childhood Physical Assault as a Risk Factor for PTSD, Depression, and Substance Abuse: Findings from a National Survey,” American Journal of Orthopsychiatry 66 (1996): 437, 443; Sana Loue, “Legal and Epidemiological Aspects of Child Maltreatment: Toward an Integrated Approach,” Journal of Legal Medicine 19 (1998): 471, 475-6. [↩]
8. Paltrow, Lynn.  [↩]
9. Ibid. [↩] [↩] [↩] [↩]