The case of Nina Buckhalter could set a terrible precedent in Mississippi.
Buckhalter is currently on trial for charges of manslaughter.
Why? Because in 2009 she gave birth to a stillborn child, and doctors found traces of drugs in her system.
In Mississippi, the law is so vague that it allows prosecutors to charge women for stillbirths and miscarriages, and they seem to be using the law in just that way:
If prosecutors prevail in this case, the state would be setting a “dangerous precedent” that “unintentional pregnancy loss can be treated as a form of homicide,” says Farah Diaz-Tello, a staff attorney with National Advocates for Pregnant Women, a nonprofit legal organization that has joined with Robert McDuff, a Mississippi civil rights lawyer, to defend Buckhalter. If Buckhalter’s case goes forward, NAPW fears it could spur a wave of similar prosecutions in Mississippi and other states.
Mississippi’s manslaughter laws were not intended to apply in cases of stillbirths and miscarriages. Four times between 1998 through 2002, Mississippi lawmakers rejected proposals that would have set specific penalties for damaging a fetus by using illegal drugs during pregnancy. But Mississippi prosecutors say that two other state laws allow them to charge Buckhalter. One defines of manslaughter as the “killing of a human being, by the act, procurement, or culpable negligence of another”; another includes “an unborn child at every stage of gestation from conception until live birth” in the state’s definition of human beings.
The cause of any given miscarriage or stillbirth is difficult to determine, and many experts believe there is no conclusive evidence that exposure to drugs in utero can cause a miscarriage or stillbirth. Because of this, prosecuting Buckhalter opens the door to investigating and prosecuting women for any number of other potential causes of a miscarriage or stillbirth, her lawyers argued in a filing to the state Supreme Court—”smoking, drinking alcohol, using drugs, exercising against doctor’s orders, or failing to follow advice regarding conditions such as obesity or hypertension.” Supreme Court Justice Leslie D. King also raised this question in the oral arguments last month: “Doctors say women should avoid herbal tea, things like unpasteurized cheese, lunch meats. Exactly what are the boundaries?”
Laws that criminalize hurting or killing fetuses are pitched as ways to protect pregnant women from abuse but are often used to prosecute those same women, NAPW says. The group has documented more than 400 cases across the country in which these laws have been used to detain or jail pregnant women. Earlier this year, Mississippi’s neighbor to the east, Alabama, set its own precedent for prosecuting pregnant women for drug use. In January, the Alabama Supreme Court upheld convictions against two women—Amanda Kimbrough and Hope Ankrom—for “chemical endangerment” of a child, under a 2006 law that was written to punish people who expose children—not fetuses—to illegal drugs. Kimbrough gave birth prematurely to a baby boy who died shortly thereafter; she was charged after testing positive for meth. Ankrom gave birth to a healthy baby boy, but she was charged after he was found to have marijuana and cocaine in his system.
The consequences of prosecutors being allowed to charge women in this way is especially troubling for black women.
Black women are increasingly being jailed, and with blacks being over 1/3 of the population in Mississippi, such acts could disproportionately affect black women.
What can be done to reform this law?
What can be done to bring this issue to the fore?
Thoughts on the Buckhalter case?
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