Outcry in America as pregnant women who lose babies face murder charges

Published on 24 June 2011 by The Guardian

Across the US, more and more prosecutions are being brought against women who lose their babies. Photograph: Alamy

Rennie Gibbs is accused of murder, but the crime she is alleged to have committed does not sound like an ordinary killing. Yet she faces life in prison in Mississippi over the death of her unborn child.

Gibbs became pregnant aged 15, but lost the baby in December 2006 in a stillbirth when she was 36 weeks into the pregnancy. When prosecutors discovered that she had a cocaine habit – though there is no evidence that drug abuse had anything to do with the baby’s death – they charged her with the “depraved-heart murder” of her child, which carries a mandatory life sentence.

Gibbs is the first woman in Mississippi to be charged with murder relating to the loss of her unborn baby. But her case is by no means isolated. Across the US more and more prosecutions are being brought that seek to turn pregnant women into criminals.

“Women are being stripped of their constitutional personhood and subjected to truly cruel laws,” said Lynn Paltrow of the campaign National Advocates for Pregnant Women (NAPW). “It’s turning pregnant women into a different class of person and removing them of their rights.”

Bei Bei Shuai, 34, has spent the past three months in a prison cell in Indianapolis charged with murdering her baby. On 23 December she tried to commit suicide by taking rat poison after her boyfriend abandoned her.

Shuai was rushed to hospital and survived, but she was 33 weeks pregnant and her baby, to whom she gave birth a week after the suicide attempt and whom she called Angel, died after four days. In March Shuai was charged with murder and attempted foeticide and she has been in custody since without the offer of bail.

In Alabama at least 40 cases have been brought under the state’s “chemical endangerment” law. Introduced in 2006, the statute was designed to protect children whose parents were cooking methamphetamine in the home and thus putting their children at risk from inhaling the fumes.

Amanda Kimbrough is one of the women who have been ensnared as a result of the law being applied in a wholly different way. During her pregnancy her foetus was diagnosed with possible Down’s syndrome and doctors suggested she consider a termination, which Kimbrough declined as she is not in favour of abortion.

The baby was delivered by caesarean section prematurely in April 2008 and died 19 minutes after birth.

Six months later Kimbrough was arrested at home and charged with “chemical endangerment” of her unborn child on the grounds that she had taken drugs during the pregnancy – a claim she has denied.

“That shocked me, it really did,” Kimbrough said. “I had lost a child, that was enough.”

She now awaits an appeal ruling from the higher courts in Alabama, which if she loses will see her begin a 10-year sentence behind bars. “I’m just living one day at a time, looking after my three other kids,” she said. “They say I’m a criminal, how do I answer that? I’m a good mother.”

Women’s rights campaigners see the creeping criminalisation of pregnant women as a new front in the culture wars over abortion, in which conservative prosecutors are chipping away at hard-won freedoms by stretching protection laws to include foetuses, in some cases from the day of conception. In Gibbs’ case defence lawyers have argued before Mississippi’s highest court that her prosecution makes no sense. Under Mississippi law it is a crime for any person except the mother to try to cause an abortion.

“If it’s not a crime for a mother to intentionally end her pregnancy, how can it be a crime for her to do it unintentionally, whether by taking drugs or smoking or whatever it is,” Robert McDuff, a civil rights lawyer asked the state supreme court.

McDuff told the Guardian that he hoped the Gibbs prosecution was an isolated example. “I hope it’s not a trend that’s going to catch on. To charge a woman with murder because of something she did during pregnancy is really unprecedented and quite extreme.”

He pointed out that anti-abortion groups were trying to amend the Mississippi constitution by setting up a state referendum, or ballot initiative, that would widen the definition of a person under the state’s bill of rights to include a foetus from the day of conception.

Some 70 organisations across America have come together to file testimonies, known as amicus briefs, in support of Gibbs that protest against her treatment on several levels. One says that to treat “as a murderer a girl who has experienced a stillbirth serves only to increase her suffering”.

Another, from a group of psychologists, laments the misunderstanding of addiction that lies behind the indictment. Gibbs did not take cocaine because she had a “depraved heart” or to “harm the foetus but to satisfy an acute psychological and physical need for that particular substance”, says the brief.

Perhaps the most persuasive argument put forward in the amicus briefs is that if such prosecutions were designed to protect the unborn child, then they would be utterly counter-productive: “Prosecuting women and girls for continuing [a pregnancy] to term despite a drug addiction encourages them to terminate wanted pregnancies to avoid criminal penalties. The state could not have intended this result when it adopted the homicide statute.”

Paltrow sees what is happening to Gibbs as a small taste of what would be unleashed were the constitutional right to an abortion ever overturned. “In Mississippi the use of the murder statute is creating a whole new legal standard that makes women accountable for the outcome of their pregnancies and threatens them with life imprisonment for murder.”

Miscarriage of justice

At least 38 of the 50 states across America have introduced foetal homicide laws that were intended to protect pregnant women and their unborn children from violent attacks by third parties – usually abusive male partners – but are increasingly being turned by renegade prosecutors against the women themselves.

South Carolina was one of the first states to introduce such a foetal homicide law. National Advocates for Pregnant Women has found only one case of a South Carolina man who assaulted a pregnant woman having been charged under its terms, and his conviction was eventually overturned. Yet the group estimates there have been up to 300 women arrested for their actions during pregnancy.

In other states laws designed to protect children against the damaging effects of drugs have similarly been twisted to punish childbearers.

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  1. Although the loss of life is always tragic under any circumstances and the death of a child doubles the sadness…how is this even a viable response?
    I personally find this to be one of the most vicious and insidiously slimy ways that the religious right has yet found to force their agenda upon us…

    • Norman, imagine you lived here. Would you be enjoying it? We are a young country, tribalism still has a lot of cache here. We will evolve, socially, like most of the rest of the modern world, but the yahoos are having their last hoo-rah. We – the humanists, the atheists, the scientists, the people who can see the big picture, the THINKERS – are gaining in numbers every day. Also, most of what you see on the "news" from America is only news because some of the news outlets are owned by the very people you think we are, xenophobic racists with an agenda to reverse our social course in favor of the good old days. They are not America, they are only one of the many problems of freedom. We'll survive.

  2. I agree and disagree. Women should NOT continue to abuse drugs or harm themselves when pregnant. If they chose to keep the child, even if it is to give the child up for adoption, they have the responsibility to take care of and nurture that child until birth.

    If you directly do something to end that child's life through use of illegal drugs OR self harm, Then YES you should face charges.

    My Aunt is a foster mother to kids that are born addicted to drugs. I've seen first hand the long term emotional, physically and psychological effects it has on them. Anyone women whose baby is born drug addicted deserves punishment as well!

    • @Melinda, often women do not know they are pregnant until several months into the pregnancy. I was four months pregnant before I knew. I thought I had the flu, not morning sickness. How do you hold someone responsible for harm if they don't know they are doing it? What this means is that pregnant women are held to a different standard than other women, and it just runs right in line with the whole conservative schtick, that we are supposed to be nothing more than brood mares, that our bodies do not belong to us and that our personal rights disappear the moment we conceive… because the FETUS is more important than the mindless brood mare carrying it. Especially since it might be a sainted BOY fetus… who is NOT held accountable, you will note, for any behaviors that might have a bearing on their future progeny. This is insufferable!

    • Why don’t you just advocate mandatory abortion as soon as the drug addicted woman finds out she is pregnant? I would get an abortion if I thought their was a chance I would be tried for murder.

    • if addiction was so easy to overcome, we would have no addicts in this country. I applaud people like your aunt who rise above and help out these kids. What no one ever talks about is the men who "father" these kids…shouldn't they be held to the same standard??

  3. Hi Sisters, I will be broadcasting tonight Tuesday at 11pm on the "Atheist Age" program and on Thursday at 3pm on the "Free Waves" Feminist program.
    Go to http://www.3rpp.com.au to listen live.
    11pm and 3pm Melbourne time (1pm & 5am UTC).
    I will mention your information.
    Thank you, In sisterhood.
    Elida Radig


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