Cocaine Case Puts Spotlight On Fetal Harm Prosecutions

A Mississippi judge has thrown out a murder charge against Rennie Gibbs. At age 16, she gave birth to a stillborn child who tested positive for a cocaine byproduct. Tell Me More looks into the case.

MICHEL MARTIN, HOST:

I'm Michel Martin and this is TELL ME MORE from NPR News. Now we turn to a case that may have implications for how the law treats pregnant women. A Mississippi judge has thrown out a murder charge against Rennie Gibbs. The charge came after Gibbs, then 16 years old, gave birth to a stillborn child. That was in 2006.

The baby was born with the umbilical cord wrapped around her neck, but the medical examiner also reportedly found traces of a cocaine byproduct in her system, and that's what led to the murder charge. The case has put another spotlight on the debate over so-called fetal harm prosecutions.

Theses are cases where a pregnant mother is charged for actions that are deemed harmful to a fetus. Joining us to talk about these issues is Lynn Paltrow. She is the executive director of a group called National Advocates for Pregnant Women. And she served as co-counsel on the Gibbs case. Lynn Paltrow, thanks so much for joining us.

LYNN PALTROW: Thanks for having me.

MARTIN: And I do want to mention that we did reach out to the Mississippi Attorney General's office before the murder charges were dropped, and they told us then that they couldn't comment on the case at the time because of the pending trial.

Now the prosecutor in charge of the case did tell local reporters that he plans to file manslaughter charges when the next grand jury meets. So, Lynn Paltrow, let's clarify what's happening here. The murder charge has been dropped, I take it that speaks to premeditation. But if the prosecutor indicates that manslaughter will be pursued, what does that mean? What is manslaughter?

PALTROW: Well, first of all, the depraved heart homicide law under which Ms. Gibbs was charged is not really even intentional, which tells you that when you make murder laws apply to pregnant women it doesn't require that they have any intent to do harm, they just have to do something that somebody thinks is dangerous.

And that's somewhat similar with the manslaughter charge - that you engage in an activity that may not have been intended to result in death, but was thoughtless, negligent or so forth. And...

MARTIN: Now one of your arguments is that the - as we mentioned - that the examiner pointed out that the fetal remains reportedly tested positive for a cocaine byproduct, not cocaine itself, but you were saying that this and other prosecutions based on maternal drug use are based on a flawed premise. What do you mean by that?

PALTROW: Well, the law that Ms. Gibbs is prosecuted under isn't a drug law, it has nothing to do with drugs. It says that the persecutor is using laws that were passed to punish third parties who attacked pregnant women. That established separate rights for fertilized eggs, embryos and fetuses - allegedly to protect pregnant women from attacks and violence - to punish women who can't guarantee healthy birth outcomes.

Fifteen to 20 percent of all pregnancies in the United States end in miscarriage or stillbirth. So the prosecutor's way of thinking makes it the fact that by becoming pregnant, a woman puts her unborn child at risk of death and puts herself as a potential subject of arrest and prosecution.

MARTIN: If there is not a healthy outcome - is that what you're saying?

PALTROW: Well, actually, that's not even true. It can be if there's a pregnancy loss, if there's an unhealthy outcome or in South Carolina, it's creating a risk of harm, even if there is no harm or even if the risk is less than, for example, smoking cigarettes. And to answer your earlier question, women in fact - for example, a woman in Utah give birth to twins. One was stillborn.

She was arrested under the state's feticide laws, also intended for punishing third parties, because doctors at the hospital claimed her refusal of cesarean surgery two weeks earlier. Her exercise of her right to medical decision-making was what caused the stillbirth, and they arrested her. We've worked on cases where - and people have to again think about what the consequences of this are. Last summer, a doctor sent an email to a woman saying that if she didn't come in immediately for cesarean surgery, he would be forced to move to the most extreme option which is having law enforcement pick you up at your house.

MARTIN: Well, hold on a second. So you're very focused on what you see as - and what - you're saying that history shows, in some cases, where these laws are applied - or the consequences for women and treating them as a separate class of people. But what about - as you - but you also pointed out that some of these prosecutions are directing - are happening under laws that were directed against people who assault pregnant women or injure them in some way that leads to a miscarriage.

I mean, under that principle, I mean, is there not a case to be made that once a fetus is viable that if somebody does engage in conduct which is known to be harmful, like using crack cocaine, that they are responsible in some way or at least have an ability to foretell that there could be a negative outcome? What's your response to that?

PALTROW: Well, first of all, as I said, every woman who becomes pregnant unfortunately has a 15 to 20 percent of losing that pregnancy. People who attack a pregnant woman are not the same as the woman who at her risk to her own life and health become pregnant and seek to continue that pregnancy to term.

And fortunately and despite the drug war stigmatizing propaganda, none of the criminalized drugs are more risky during pregnancy than smoking cigarettes or drinking alcohol. Far more women have health problems that create risks during pregnancy, such as obesity, who live in poverty, who smoke cigarettes and drink alcohol than all the women who use any criminalized drug put together. We tend to focus on that because we're in the middle of an ongoing, counterproductive and dangerous drug war.

And as every leading medical group to address this issue has said, if you want to create greater risks for unborn and born children, then by all means threaten women with arrest or child welfare interventions. If you want healthy babies, you have to create a wall of love, not a wall of blue.

MARTIN: Is your main concern here that these prosecutions are based on flawed scientific knowledge or basically really limited understanding of what actually causes miscarriage, or is it your underlying concern that this, as we mentioned, creates a different legal status for pregnant women?

PALTROW: It's both. I mean, we live in a country where low-income people who are charged with crimes very rarely have the opportunity to have experts testify on their behalf. And the risk of using junk science is greatest for pregnant women because if you have a pregnant woman and a bad pregnancy outcome, of course she's going to have done something that you can blame her for.

And the particular focus on cocaine and other drugs is based primarily on junk science. The research over and over again fortunately says it creates risks of harm, but like those of cigarettes. That's one concern - by the way, my mother smoked cigarettes during her pregnancy. These are increased risks. People don't - in the 87 percent of counties in this country that don't have an abortion provider, they don't say, well, I guess I don't have to find one. I can just go smoke a pack of cigarettes. That's not how it works.

But the other concern is that if we allow the criminal justice and the punitive child welfare system to treat pregnant women as subject to those very punitive controlling systems, you are establishing that upon becoming pregnant - and these laws increasingly apply from the moment a woman is carrying a fertilized egg - to a separate status in which her medical records are not confidential, in which she's not allowed to make medical decisions, in which her literal physical liberty is at stake because somebody outside decides she's creating some kind of risk to her future child.

MARTIN: If you're just joining us, we're talking about so-called fetal harm laws. We're speaking with Lynn Paltrow of National Advocates for Pregnant Women. That's a group that served as co-counsel on the case of Rennie Gibbs, which is what we're speaking about now.

A Mississippi judge has just thrown out the murder charge against Rennie Gibbs, but the local prosecutor addressing the case says that he will re-file manslaughter charges when the grand jury reconvenes later on this year. And we do want to mention once again that we did reach out to the Mississippi Attorney General's office last week before the charges were dropped to ask them to join our conversation, and they declined.

So a final word from you on this, Lynn Paltow. Is it your - I think people listening to our conversation would argue that you are defending known unhealthy practices, that we do give, you know, pregnant women, you know - well, perhaps not a lot of legal protection, but cultural protection. We do believe that they sort of deserve some kind of special care, and your argument is that legally, that that kind of difference is - isn't recognized and is in fact dangerous. Is that your point of view?

PALTROW: Well, special care is not putting people in prisons or the child labor system. And I would urge people to go check out the health care that's available in those places. But it's not a defense of less than healthy.

It is a defense of the humanity of mothers. The biggest threats to life, born and unborn, do not come from mothers. They come from poverty, barriers to health care, persistent racism, environmental hazards and prosecutions like these that will frighten women away from getting help from the problems they do have.

MARTIN: Lynn Palrow is the executive director of National Advocates for Pregnant Women. She was co-counsel in the Rennie Gibbs case, and she joined us from our bureau in New York. Lynn Paltrow, thanks for joining us.

PALTROW: You're welcome.

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