They lost their pregnancies. Then prosecutors sent them to prison

Written By: Brianna Bailey and Cary Aspinwall, The Marshall Project, and Amy Yurkanin, AL.com

This story was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletter, or follow The Marshall Project on Facebook or Twitter.

(NATIONAL) Some were already mothers, excited about having another baby. Others were upset or frightened to find themselves pregnant. All tested positive for drugs. And when these women lost their pregnancies, each ended up in jail. 

Read this story on The Frontier here.

More than 50 women have been prosecuted for child neglect or manslaughter in the United States since 1999 because they tested positive for drug use after a miscarriage or stillbirth, according to an investigation by The Marshall Project, The Frontier and AL.com that was co-edited and published in partnership with The Washington Post. 

The medical community calls this legal approach harmful and counterproductive. But it’s a strategy many legal experts say is likely to become more common now that Roe v. Wade has been overturned, making it easier for states to pass laws that give fetuses and embryos the same rights as children or their mothers.

An analysis of court records and medical examiner data over the last 23 years found at least 20 felony cases in Alabama, 14 in South Carolina and 10 in Oklahoma, as well as nine in other states where prosecutors have embraced some form of “fetal personhood” in bringing criminal charges after miscarriage or stillbirth. Many of the prosecutions resulted in lengthy prison sentences and life-altering consequences for mostly poor women who were struggling with addiction.

In 20 additional cases, women in Alabama, Oklahoma and South Carolina were prosecuted after positive drug tests because their babies died shortly after birth. 

Seven of the Oklahoma stillbirth and miscarriage cases were filed in the last two years. In many instances, the fetuses were not developed enough to be viable outside the womb. Sentences have ranged from probation to 20 years in prison. Women sent to prison after pregnancy loss are among the few Americans serving time for drug consumption; most laws criminalize drug possession and sales, not use. 

Prosecutors who bring these cases say they see them as a deterrent, or a way to help women get drug treatment. “It stops the cycle, it stops them getting pregnant again and using drugs and trying to get around it,” said Brian Hermanson, district attorney for two small counties north of Oklahoma City.

But many medical experts say the causes of miscarriage and stillbirth are complex and often unclear, and there isn’t scientific proof that using methamphetamine or other drugs causes pregnancy loss. Healthy babies are delivered every day to people who used drugs while pregnant. 

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Even in states with the strictest abortion bans, mainstream anti-abortion activists have largely discouraged criminal punishment for women, instead going after the medical providers through criminal or civil court penalties. The National Right to Life Committee says “any measure seeking to criminalize or punish women is not pro-life.”

Women prosecuted after pregnancy loss are often those least able to defend themselves, the investigation found. They typically work low-paying jobs, are often victims of domestic abuse, have little access to health care or drug treatment, and rely on court-appointed lawyers who advise them that pleading guilty is their best option. Frequently, the convictions strip them of voting rights, future housing and job prospects, and remove them from the lives of their other children. 

The women include Ashley Traister, sentenced to probation for child neglect after a stillbirth in Oklahoma but facing potential prosecution on a more serious charge. And Brooke Shoemaker, an Alabama mother convicted by a jury and sentenced to 18 years in prison after she delivered a stillborn fetus at home. And Regina McKnight, who served eight years behind bars in South Carolina before the state’s Supreme Court reversed her conviction. 

Some legal experts say the trickle of cases could turn into a torrent because of the Supreme Court’s June ruling in Dobbs v. Jackson Women’s Health, which is expected to encourage broader efforts in some states to establish and protect legal rights for the unborn. The decision upended a key point of Roe, which treated fetuses as legally part of their mothers until they could live outside the womb.

While the repercussions of Dobbs are still unfolding, it gives states leeway to expand child endangerment and homicide laws to punish people for what happens during their pregnancies. At least nine states now have fetal personhood laws on the books. Some, like Georgia, had “trigger” laws that took effect once Roe was overturned.

The cases in Alabama, South Carolina and Oklahoma also foreshadow how prosecutions could play out if states move to punish people who seek an abortion, rather than going after abortion providers, experts said.

“When the state and the courts begin to determine what you can and cannot do, and you have state control of the prenatal conduct of pregnant persons, you are opening the door for all kinds of potential criminal charges,” said Civia Tamarkin, president of the National Council of Jewish Women Arizona, which joined other groups to block a state law giving full rights to fetuses too young to survive outside the womb. 

Traister met her husband when he managed the apartment complex in Colorado Springs, Colorado, where she lived right after high school. He was 24 years her senior; she said she didn’t know he had an extensive record of arrests that included domestic violence. After they moved with their toddler daughter to Lawton, Oklahoma, he began gambling away their rent money and getting arrested for small crimes, court records show.

Traister’s husband introduced her to meth, she said, and physically abused her, breaking two of her fingers. She called police but did not press charges. Her husband did not respond to multiple requests for comment made via phone, text, email and a letter sent by certified mail to his last known address. 

It took several months for Traister to realize that she was pregnant in 2019, she said. She hadn’t planned on becoming pregnant, but very much wanted her baby, she said. “I had no reason to ever want to have an abortion.” 

About halfway into the pregnancy, bleeding started — and wouldn’t stop. Traister’s tiny stillborn son was delivered at the local medical center.

The hospital tested Traister’s blood for drugs and found methamphetamine. 

A state autopsy described the stillbirth’s cause as undetermined, saying meth was not the cause but “likely contributed to the death.” Citing the autopsy, police arrested Traister on charges of manslaughter and child neglect six months after she lost her son. Each year in the United States, there are nearly 5 million pregnancies. About 1 million end in miscarriage and 24,000 in stillbirth, according to the Centers for Disease Control and Prevention. Harvey Kliman, a doctor and research scientist at the Yale School of Medicine, studies placentas from both live births and stillbirths to understand why. In 90% of cases, he said, the cause of pregnancy loss is “intrinsic genetic abnormalities.” 

Methamphetamine primarily affects the user’s brain and not the placenta, Kliman said. Kliman said there is “no biological reason that methamphetamine should cause a pregnancy loss.”

Doctors strongly discourage illicit drug use by pregnant people. But there are other risk factors, including smoking, diabetes and poor prenatal care. 

That doesn’t mean those things cause stillbirth or miscarriage, said Mishka Terplan, a doctor who studies substance use disorder and pregnancy, and serves on the American College of Obstetricians and Gynecologists working group on addiction. “The bottom line is association is not causation,” he said.

Many medical groups say that criminal prosecutions discourage women from seeking prenatal care and could lead to more deaths — of pregnant patients and babies. 

That’s what happened when Tennessee passed a “fetal homicide” law in 2014 to prosecute people who tested positive for narcotics after giving birth. Doctors reported a sharp increase in the number of women avoiding prenatal care for fear of getting arrested, while the number of babies born in withdrawal from narcotics did not drop. The law expired within two years.

A group of Oklahoma doctors signed a letter last year asking local officials to stop seeking criminal punishment for miscarriages and stillbirths: “The prosecution of expecting and new mothers who use substances is terrible public policy for both babies and moms,” they wrote. “We are gravely concerned that prosecutors willfully ignore medical science in pursuit of these harmful prosecutions.” 

One doctor who signed the letter, Stephanie Pierce, is the medical director of a clinic for pregnant women with substance-use disorders at the University of Oklahoma Health Sciences Center. 

“We know that, actually, these types of punitive measures don’t improve outcomes,” she said in an interview. “So they don’t make people less likely to use substances.”

South Carolina was the first state to prosecute drug use by a woman who had a stillbirth, said Michele Goodwin, a law professor at the University of California, Irvine and author of “Policing The Womb: Invisible Women and the Criminalization of Motherhood.”

McKnight had a stillborn baby in 1999, tested positive for cocaine, and was convicted of homicide by child abuse. Appeals courts upheld that verdict, saying that using drugs while pregnant qualifies as “extreme indifference to human life” under the state’s homicide laws. 

After McKnight had served eight years, the state Supreme Court overturned her conviction, in part because her lawyer didn’t present witnesses to challenge prosecutors’ claim that her drug use definitively caused the stillbirth.

Goodwin said she sees racial disparities in prosecutions of women like McKnight, who is Black. “If you were wealthy and White and educated, and you were abusing cocktails of prescriptions, you were not being punished,” she said. “But if you had a low birth weight baby or a pregnancy loss and were a person of color, they would try to put you in prison.”

District attorneys in other states — including Mississippi, Indiana, Missouri, Arkansas and Pennsylvania — have a long record of trying to prosecute women for pregnancy loss and drug use, though most of those cases have been dismissed or overturned. Until recently, higher courts generally rejected such cases, in part because they often treated embryos and fetuses as people separate from the women who carried them. 

But that changed in the last decade. Prosecutors in Alabama started to use a statute designed to protect children from exposure to chemicals in home meth labs to prosecute women whose drug use exposed their fetuses in the womb. While lawmakers carved out an exemption for exposure to prescription drugs in 2016, Alabama continues to file charges in cases involving illegal drugs as a deterrent, some prosecutors said. 

Some prosecutors filing such charges say they’re doing it to force women into drug treatment, or to deter pregnant women from using drugs. 

“The goal in those cases is not to prosecute those people, the goal is to get them help,” said Chris Connolly, district attorney of Lauderdale County in Alabama. “Our goal is not to make them convicted felons or put them in prison.”

Under Connolly’s leadership, Lauderdale County has prosecuted two stillbirths; the defendants were sentenced to 10 years and 20 years in prison, respectively.

In 2015, Oklahoma lawmakers passed a bill called “Ashlen’s Law” to ensure grieving parents of a stillborn baby could get a death certificate if the fetus was 12 weeks or older. (Federal policy and many states don’t consider a fetus stillborn unless it is at least 20 weeks along). The bill’s sponsor, Republican state Rep. Sean Roberts, said he didn’t intend the law to aid criminal prosecutions or to establish fetal personhood. But that is what happened.

The Oklahoma Chief Medical Examiner’s Office began autopsying cases of fetal death that it had rarely looked at before, including fetuses that weighed less than 2 ounces. About 30% of the 300 stillborn autopsies involved meth, data shows, which led to most of the state’s 10 prosecutions. 

In an emailed statement, Oklahoma Chief Medical Examiner Eric Pfeifer said his office makes decisions about cause of death “independent of influence from law enforcement.” He said in most cases, his office does not conduct genetic testing, which is expensive but could reveal other causes for pregnancy loss.

Not every prosecutor has pursued criminal charges after pregnancy losses. The district attorneys in the largest counties in Alabama and Oklahoma said they’ve usually opted not to because of the complex causes of miscarriages and stillbirths — and concerns that criminalizing addiction puts the health of mothers and babies at further risk.

“They’re much more likely to get well themselves and much more likely to carry to full term if they can get medical help without fear of being prosecuted,” said David Prater, the district attorney in Oklahoma City.

Before Dobbs, Mississippi had two prosecutions of women accused of stillbirths linked to drug use — one in 2006 and the other in 2010. Both were ultimately dismissed by the courts. Rob McDuff, a lawyer with the Mississippi Center for Justice who defended both women, said he worries there will be more cases now. 

California doesn’t have an explicit fetal personhood law. But in one county there, two women were charged with murder after they had stillborn babies and tested positive for meth. The prosecution of a 2019 stillbirth prompted the state’s attorney general to intervene; lawmakers are now considering a bill to ban such criminal cases. The other woman had served four years in prison for manslaughter before a judge overturned her conviction. 

In Oklahoma, a handful of prosecutors brought nearly all of the cases against women for miscarriage or stillbirth, charging them with homicide, manslaughter or, more recently, felony child neglect. They have also levied child neglect charges against dozens of women whose pregnancies were successful but who tested positive for drugs afterward.

Prosecutors who charge women for meth-related stillbirths have rarely had to prove their case in court. In almost every case reviewed for this article where district attorneys got a conviction, they did so through a guilty plea.

Cherie Mason pleaded guilty to manslaughter after the prosecutor in her rural Oklahoma county charged her with murder for a 2017 stillbirth, records show. Mason, who has four daughters, has served four years of a 12-year sentence. “I can’t take back the mistakes I’ve made, but I hope that someday I’ll be able to be close to my girls and my grandchildren,” she said in an interview. 

Many women said shame and fear convinced them a guilty plea was their only option. That’s what Traister agreed to, after her first lawyer told her it was her best shot at avoiding life in prison. 

But before Traister was sentenced, Oklahoma’s highest court issued a ruling in a similar manslaughter case, finding that prosecutors hadn’t sufficiently proven that meth caused that woman’s stillbirth. The court then took the unusual step of recommending the alternative charge of felony child neglect. 

With the help of a legal group, National Advocates for Pregnant Women, Traister got a new lawyer who asked a judge to withdraw her guilty plea and dismiss the manslaughter charge, arguing the state also hadn’t proved that meth caused her stillbirth. 

One day in May, Traister sat quietly in a Comanche County courtroom, clenching her hands nervously as a room full of men decided her fate.

She had flown there from Washington state, where she moved after her arrest to get clean and be closer to her family. She lives in a house next door to her sister’s, caring for their elderly grandfather, and works in the laundry room of a picturesque inn facing the Puget Sound. She is filing for divorce from the man who abused her, and trying to regain custody of her daughter, who lives with Traister’s sister.

 At the courthouse, she had her duffle bag packed, just in case the judge shipped her off to prison.

Instead, he allowed her to withdraw her manslaughter plea and sentenced her to probation for felony child neglect. 

The manslaughter charge is still pending. At a hearing scheduled for Sept. 9, District Attorney Kyle Cabelka must show he has probable cause to proceed with the prosecution. 

Cabelka declined repeated requests for comment. But in May, he told the judge that probation and a felony conviction were not enough punishment for Traister.

Since he began prosecuting her in February 2020, he has filed at least 17 other felony cases against women who gave birth and tested positive for drugs, including three who lost their pregnancies.

Data analysis by Andrew Rodriguez Calderón of The Marshall Project