Lynn Paltrow on the Prosecution of Pregnancy

Over the past 40-plus years, state and federal lawmakers have doubled down on efforts to not only restrict abortion, but to scrutinize pregnancy — zeroing in on low-income women, women of color and drug-using women, allegedly to protect the “right to life of unborn babies.”

Already, 18 states have laws equating drug or alcohol use while pregnant with civil child abuse. Two states, Minnesota and South Dakota, allow civil commitment — mandatory institutionalization — when someone who is pregnant poses a danger to her embryo or fetus. At the initial hearing, the fetus is entitled to counsel but the pregnant woman is not.

National Advocates for Pregnant Women, which seeks to secure the civil and human rights of pregnant people and their families, argues that these efforts mistakenly treat both pregnancy and substance use as criminal — rather than as public health — matters. Worse, NAPW says that these tactics actually undermine rather than improve maternal and child health.

NAPW founder and executive director Lynn M. Paltrow recently spoke to Lilith’s Eleanor J. Bader about the group’s history and ongoing work.

 Eleanor J. Bader: Let’s start with NAPW’s history. When and why did you start the organization?

Lynn M. Paltrow:  Before creating NAPW, I’d worked at the American Civil Liberties Union, NARAL and the Center for Reproductive Rights, where the focus was on abortion. But by the mid-1980s, I started getting cases where anti-abortion arguments were also being used to hurt women who didn’t want to end their pregnancies. For example, pregnant Black women who were allegedly using crack were being arrested for child endangerment, child abuse and delivery of drugs to a minor (through the umbilical cord).  The media called them “crack mothers” and depicted so-called “crack babies” as damaged children. I began working on these cases and saw the ways misogyny, racism and the drug war were intersecting to deny pregnant women, especially Black pregnant women, their personhood.  

Around this time, I was invited by what was then the Lindesmith Center (now the independent Drug Policy Alliance) to speak at the Open Society Institute about the connection between the war on abortion and the war on drugs. This was my introduction to OSI and theirs, apparently, to the value of recognizing the connections between women’s rights and drug policy issues. That led to an opportunity to submit a funding proposal. 

By then, I was coming to the realization that the only way I could do the holistic legal advocacy — work that took place at the intersection of reproductive, women’s and civil rights — was to start a new organization.

At the same time, I realized that one person alone was unlikely to get or even deserve funding, so I approached the Pennsylvania-based Women’s Law Project and asked them if I could apply for an OSI grant to start NAPW. They said yes, we got the initial grant, and within two years I was able to separate and incorporate NAPW as an independent nonprofit organization. 

EJB: Tell me about your initial cases.

LMP: I started NAPW as the attorney on several ongoing cases. One of these was Ferguson v. City of Charleston, a case I conceived of, filed and tried while I was still at the Center. At this point, the case was headed to the U.S. Supreme Court. This case challenged a policy in which health care providers at the Medical University of South Carolina were working in collaboration with police and prosecutors to secretly search their Black pregnant patients for evidence of cocaine use in the guise of medical drug tests. If they tested positive, their confidential patient information was handed over to the police, and they were taken out of the hospital in chains and shackles, often right after giving birth or while still pregnant. Some were still bleeding from the delivery when they were arrested and taken to jail. It was outrageous that hospital staff were working with police and prosecutors to arrest rather than treat Black pregnant women. In fact, the  racist nurse who instigated the policy put a note in the file of the only white women who was arrested, saying that she “lived with her boyfriend, who is a Negro.” 

I worked on this case and others on behalf of women who were being charged with crimes such as child endangerment based on something they did or did not do while they were pregnant. But there was more to it. The Ferguson case made clear how anti-abortion arguments had seeped into law enforcement. The fetus was being treated as a child — a separate person — who was endangered by the actions of a pregnant woman.

EJB: Did you win this case?

LMP: Yes. The six-to-three decision found that the Medical University, police and prosecutor had violated the women’s 4th Amendment rights against unreasonable searches. It was an extraordinary victory that validated the plaintiffs. The idea that pregnant Black women have to give consent before they can be searched — in the guise of drug testing — affirmed that what the doctors and nurses had done was wrong. Sadly, despite this decision, these injustices continue today.

EJB: NAPW documented 413 arrests of pregnant women between 1973 and 2005 and more than 800 arrests since then. Has anything changed in terms of who is being arrested?

LMP: The idea to arrest pregnant people for child endangerment started with myths about “crack babies” and the idea of Black mothers as bad parents. Once these ideas became popularized, they were later extended to all women. Our study of arrests up to 2005 found that more than 50% of them were of Black women. Since 2005, the arrests of poor, white, rural women who use opioids has ramped up. But I want to stress that punitive policies are not limited to arrests. More than 20 states have civil child welfare laws that treat evidence of drug use during pregnancy as the basis for taking children away and separating families.

EJB: In addition to testing positive for drugs or alcohol, pregnant people can also face charges for refusing to heed medical advice. How does this play out?

LMP: Let me tell you about Rinat Dray, an Orthodox Jewish woman who is currently suing Northwell Health’s Staten Island University Hospital because Cesarian surgery was performed on her in 2011 against her will. At the time, Rinat was pregnant with her third child. Her first two had been born by C-section, and she wanted to try to deliver this one vaginally. She chose her doctor and the hospital very carefully and even hired a doula to ensure that this would occur. 

Rinat was assured that she could try to have a vaginal birth but, when she went into labor, she did not see her doctor at the hospital. The doctor who was there ignored Rinat’s wishes and went so far as to put a note in her file saying, “I have decided to override her refusal to have a C-section.” [] 

Unbeknownst to Rinat, the hospital had a secret policy that allowed the doctor to do this, so she was forced to have the C-section. Her bladder was seriously damaged by the surgery. She is now represented by a private attorney and we have filed a friend of the court brief in support of her, but the hospital is vigorously defending its decision. They have argued that pregnant patients do not have the right to informed consent and even, at one point, claimed that they were not included in New York State’s Patient Bill of Rights. They are claiming that fetuses have a right to live and forcing pregnant patients to have procedures they don’t want is acceptable.

EJB: You’re also working to free Chelsea Becker, a California woman who is in jail on a murder charge for having a stillbirth that the state alleges — with no scientific proof — was caused by methamphetamine use. 

LMP: We’re working on her case and numerous others in Oklahoma, Tennessee and Wyoming. Our work involves organizing, educating and disseminating model legal briefs to contest these arrests and prosecutions.

EJB: My last question involves the use of the word women in NAPW’s name, since women are not the only people who can become pregnant.

LMP: We constantly talk about this, and our website refers to women, pregnant people, and people with the capacity for pregnancy. When I founded NAPW, I did not have the consciousness I now have. Though we have not yet been made aware of the prosecution of a non-binary person, of course we’ll be there for them if they are arrested.