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Is Locking Up Pregnant Women the New Cure for State Financial Woes and Mental Health Problems?

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This article was originally published by RH RealityCheck.

In December of 2010, Bei Bei Shuai, a 34-year-old pregnant woman living in Indiana, attempted to end her own life. She did so in one of the slowest and most painful ways possible: she consumed rat poison. With help from friends who intervened, however, she made it to a hospital and survived. The premature newborn she delivered by undergoing cesarean surgery did not. An Indiana prosecutor's response has been to charge her with the crimes of murder (defined to include viable fetuses) and feticide (defined to include ending a human pregnancy at any stage). She has been arrested, denied bail, and will, unless bail is granted, be imprisoned for as long as her case proceeds through the court system.

National Advocates for Pregnant Women (NAPW), through Indiana-based counsel Kathrine Jack, is working with Indiana defense attorney Linda Pence to secure Ms. Shuai's freedom and to defend the basic idea that when the person suffering from mental illness, severe depression, or any other health problem happens to be a pregnant woman, she does not lose her right to be treated like other human beings experiencing the same problems.

Pregnant women are not immune from the mental illness or severe depression that leads some people to attempt to end their lives. Indiana, like virtually every other state in the country, addresses suicide and attempted suicide as a public health issue, not a crime. Prosecutors simply may not decide that a suicide attempt is a public health issue for everyone except pregnant women. Moreover, there is wide consensus that subjecting pregnant women to special criminal penalties does not work. Rather, it undermines legitimate interests in maternal, fetal, and child health by stigmatizing pregnant women and by making them vulnerable to punishment if they seek help of any kind.

If this prosecution is allowed to go forward, the law will not just apply to one desperate pregnant woman who attempted suicide by swallowing rat poison -- it will create legal precedent that makes every woman criminally liable for the outcome of her pregnancy. This precedent would mean that women who undergo significant risks to their lives and health by bringing forth life, sometimes undergoing major surgery to do so, may then be arrested as criminals if they are unable to guarantee the birth of a live and healthy baby. In addition, if Ms. Shuai's prosecution is upheld, it leaves no doubt that women who intentionally end their pregnancies will go to jail as murderers if Roe is ever overturned.

This story and the heart-rending video that accompanies it, "Attorney Rips Prosecutor In Infant Rat Poison Death, Pence: Prosecuting Pregnant Women 'Bad For Babies,'" provides a glimpse of the jailhouse dehumanization that awaits pregnant women who become the targets of state feticide and murder laws that have defined eggs, embryos, and fetuses as legally separate from pregnant women.

Women in Alabama may also look forward to such dehumanization. There, legislators suggest that locking up pregnant women, depriving them of treatment, and separating them from their families is the right way to address drug dependency problems.

Alabama House Bill 8 would amend the state's chemical endangerment law, which was originally designed to deter people who run methamphetamine laboratories from bringing children to such dangerous locations. HB 8 would define the word "child" to include "an unborn child in utero at any stage of development," and make the law applicable to a pregnant woman who uses any amount of a "controlled substance," prescribed or otherwise, at any point in her pregnancy, and whether or not she knew she was pregnant at the time.

In other words, the bill would allow prosecutors to treat a pregnant woman as if she herself is an illegal drug lab.

Alabama, like most states, makes it a crime to possess illegal drugs, not to use or be addicted to them. This is consistent with state and federal efforts to encourage people to seek help for drug problems. HB 8, however, creates a gender-based law that singles out pregnant women for criminal punishment.

To be clear, HB 8 will not increase pregnant women's access to treatment or care. Instead, it will increase the number of pregnant women and new mothers in Alabama's notoriously horrific jails and prisons. And wait, there is more! According to the fiscal impact statement that accompanies the bill: this bill could increase receipts to the State General Fund from fines, increase receipts to the State General Fund, county general funds and other funds to which court costs are deposited. In other words, because pregnant women arrested under this law will be required to pay fines, court fees and other costs, Alabama claims locking up pregnant women and new mothers will be a money-making proposition for the state.

The prosecution in Indiana and the proposed law in Alabama both fly in the face of medical and public health recommendations regarding the most effective and appropriate ways to respond to suicide attempts and drug-dependency disorders. That these states believe there is value, financial or otherwise, in locking up pregnant women with these problems is stark evidence of how little, in fact, they value pregnant women and the children they purport to be protecting.

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