Pregnancy advocates and others on social media are expressing outrage after a 21-year-old Oklahoma woman was convicted of first-degree manslaughter earlier this month for having a miscarriage, which the prosecutor blamed on her alleged use of methamphetamine.
Brittney Poolaw, who is a member of the Comanche Nation, according to the Comanche County Detention Center, was sentenced on October 6 by a jury to four years in state prison. Poolaw's attorney filed a notice of intent to appeal on October 15.
Prosecutors argued that the miscarriage Poolaw suffered was from her use of methamphetamine. An autopsy of the fetus showed it had tested positive for methamphetamine, the Associated Press reported, but there was no evidence her use of the substance is what caused the miscarriage. The autopsy showed the miscarriage could have been caused by a congenital abnormality and placental abruption, when the placenta detaches from the womb, the AP said.
But the state said she had violated the Oklahoma's manslaughter statute, which says homicide is manslaughter in the first degree when the offender is "engaged in the commission of a misdemeanor; in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon; or when perpetrating unnecessarily either while resisting an attempt by the person killed to commit a crime, or after such attempt shall have failed."
National Advocates for Pregnant Women (NAPW) said in a statement that the state's murder and manslaughter laws don't apply to those who suffer miscarriages, defined as pregnancy losses that occur before 20 weeks of pregnancy.
"Even when applied to later losses," NAPW said, "Oklahoma law prohibits prosecution of the 'mother of the unborn child' unless she committed 'a crime that caused the death of the unborn child.'"
The fetus was between 15 and 17 weeks old according to the medical examiner's report, AP reported, meaning it was not yet viable outside of the womb. Fetuses do not typically have a chance of surviving outside of the womb until at least 24 weeks of gestation, according to the American College of Obstetricians and Gynecologists.
Women under the age of 35 have a roughly 15% chance of suffering a miscarriage, according to the American Pregnancy Association.
"Ms. Poolaw's case is a tragedy," NAPW said. "She has suffered the trauma of pregnancy loss, has been jailed for a year and a half during a pandemic, and was charged and convicted of a crime without basis in law or science."
The organization pointed to several policy statements from health officials over the years, which generally express the that pregnant women who have drug dependencies or addictions should not be criminally penalized, but rather treated and cared for.
"Transplacental drug transfer should not be subject to criminal sanctions or civil liability," the American Medical Association said in 2017. "In particular, support is crucial for establishing and making broadly available specialized treatment programs for drug-addicted pregnant and breastfeeding women wherever possible."
The National Perinatal Association said it opposes "any legal measures" that involve the criminal justice system when someone is pregnant.
"Any statute which criminalizes substance use during pregnancy is inherently discriminatory in addition to being counterproductive to the goal of improving maternal and neonatal outcomes," the association said in 2017. "Criminalization and incarceration are ineffective and harmful to the health of the pregnant person and their infant."
Poolaw's case has sparked an outcry on social media, with many criticizing the court's decision.
"October is National Pregnancy and Infant Loss Awareness Month and Brittney Poolaw is facing 4 years in prison for something that happens in 1 in 4 pregnancies," one woman tweeted.
"That dystopian future everyone keeps warning about is already here," author Jessica Valenti said. "The state went after Poolaw because she used drugs - even though there's no proof that's why her pregnancy ended. Criminalizing behavior during pregnancy is a slippery slope: What's next, arresting women who don't take prenatals? Or who have a glass of wine?"
And while Poolaw's case has garnered national attention, NAPW says that her case is not unusual. The organization says it has documented over 1,600 cases involving the criminalization of pregnancy. More than 1,200 of those cases occurred in the past 15 years.
"These cases include pregnant women who have been arrested for falling down stairs, drinking alchol, giving birth at home, being in a 'dangerous' location, having HIV, experiencing a drug dependency problem, or attempting suicide," the organization tweeted. "The majority of women subjected to pregnancy-based prosecutions are low-income women, drug-using women, and women of color."
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