julie garcés (@julsgarces) Jackie O smoking while pregnant... very strange to see. pic.twitter.com/dQ6n2iVf

Seven and a half years ago, a Mississippi teenager named Rennie Gibbs went into premature labor and delivered a stillborn baby girl named Samiya. Initially, experts attributed the baby’s death to the umbilical cord wrapped around her neck. But when traces of a cocaine byproduct showed up on the autopsy report, a medical examiner declared the stillbirth a homicide and cited cocaine toxicity as the cause. Shortly afterward, the 16-year-old Gibbs was charged with murder, specifically “depraved heart murder”, a charge that can carry a sentence of up to 20 years to life in prison.



Since her grand-jury indictment in 2007, Gibbs’s team of attorneys has been fighting for the charges to be dropped on both technical and legal grounds. The defense argues that there's no scientific proof that cocaine use can cause a stillbirth – and that the “depraved heart murder” statute did not apply to unborn children at the time of Samiya’s death. A decision is expected any day now as to whether the Gibbs case will finally proceed to trial or get dismissed. If it does go to trial, and Gibbs is convicted of murder for being 16 and pregnant, then a dangerous precedent may be established that should make anyone with a uterus feel very afraid.

This week, I spoke with one of Gibbs's attorneys, Robert McDuff, who told me that he volunteered his services to the public defender assigned to the case back in 2009 because he was concerned about the implications for women everywhere if the prosecution is successful:

It’s ridiculous that this teenager is being prosecuted for a murder charge not justified by either law or science. If she can be tried for allegedly taking drugs during her pregnancy, what is to stop other women who miscarry or suffer a stillbirth from being prosecuted because they smoked cigarettes or drank alcohol or just didn’t follow their doctor’s orders?

Central to the Gibbs case is whether her alleged cocaine use directly caused her baby’s stillbirth. A recent ProPublica investigation by Nina Martin goes into some detail on this aspect, outlining serious doubts surrounding the medical examiner's conclusion that drugs were the cause of death. The reliability of the examiner's work has been called into question before, and at least four murder convictions based on his evidence have been overturned.

Beyond the Mississippi justice system, the links between drug use and stillbirths remains sketchy at best: there is no conclusive proof that cocaine use actually harms fetuses – or at least harms them irreparably. A 25-year study that followed babies born to crack-addicted mothers found that while children were slow to develop, the determining factor was not their mothers' gestational cocaine use so much as the poverty in which they were raised. This is not to say that smoking crack or smoking anything is advisable during pregnancy – a recent National Institutes of Health study did find that smoking cigarettes or taking drugs can increase the risk of a stillbirth.

But should women who engage in unhealthy activities during their pregnancies really be criminalized – to life in prison – if they fail to produce a healthy baby? If so, where do you draw that line?

Just think for a second where such a policy could lead us. Like many women of her time, and many women since, Jacqueline Kennedy Onassis smoked while she was pregnant. Jackie-O had a history of troubled pregnancies – at least one miscarriage, a stillborn daughter and baby Patrick, who barely survived two days. Those losses caused the Kennedy family enormous pain. Now imagine if an overzealous prosecutor decided that Jackie's smoking had harmed the babies and indicted the First Lady on murder charges.

Such a scenario might seem far-fetched; indeed, for a woman in the Kennedy demographic, it is. But for poor women – especially poor black women suspected of drug use who fail to carry babies to term – criminalization is already a popular sport. Last year, the National Advocates for Pregnant Women (NAPW) released a study detailing hundreds of cases of women who have been arrested and imprisoned when they suffered stillbirths or miscarriages because of the anti-feticide laws that are in place in most states.

These laws, in 38 states, were intended to protect pregnant women and the babies they carry from attacks by third parties. Increasingly, they are being used to prosecute the pregnant women instead. According to NAPW executive director Lynn Paltrow, 99% of the cases the group documented never went to trial. The women simply pled guilty and accepted the punishment meted out to them. This is why Paltrow believes this week's Gibbs decision is so important – because a conviction would only embolden prosecutors and would place many, many more women at risk. As she told me:

By making the outcome of pregnancy a crime, we would establish a principle that the moment a woman conceives, everything she does can be perceived as attempted murder or attempted assault. Not taking enough bed rest could be interpreted as attempted assault. Tell a psychiatrist you are suicidal, and they could report you for attempted murder.

There’s still a decent chance a Mississippi judge could throw out the case of Rennie Gibbs. But if it does proceed, she will be the first woman in the state – and possibly the country – to actually face a trial for murder after suffering a stillbirth. That is the mass criminalization of pregnancy, and that is a battle in the "War on Women" we shouldn't even have to fight.