Pregnancy Justice

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Mike: Welcome everyone, this is Avoiding The Addiction Affliction, a series brought to you by Westwords Consulting. I'm your host, Mike McGowen.

You know, having a child should be a joyous occasion for the family. We'd all like to think that everyone in our society is invested in making sure that a child is born into a caring and healthy family system, and then we make laws to hopefully ensure that that happens. Well, sometimes people can have good intentions, yet make decisions that have adverse consequences.

And that's our discussion today. My guest is Dana Sussman. Dana is the acting executive Director for Pregnancy Justice, an organization formed to ensure that no one loses their rights because of pregnancy. Dana previously served as Deputy Commissioner of Policy and Intergovernmental Affairs at the New York City Commission on Human Rights and is a senior staff attorney with Safe Horizons Anti-Trafficking Program. Thanks for joining us, Dana.

Dana: Thank you so much for having me.

Mike: It's always a good place to start, tell us about Pregnancy Justice.

Dana: Well, as you mentioned, Pregnancy Justice was formed over 20 years ago to ensure that no one loses their civil or human rights because of pregnancy or any pregnancy outcome.

And our work is primarily focused on defending people who are charged with crimes or are facing other forms of punitive state action because of pregnancy or any pregnancy outcome, which includes, of course, going on and delivering a baby, having pregnancy loss, a miscarriage, or a stillbirth, or having an abortion.

Mike: Big work nowadays. I mean, we're probably using the words post-Roe in this conversation. So I might as well ask that, what has changed for you all since the Supreme Court decision to overturn Roe?

Dana: Well, I think before we even get there, I think it's important to let folks know, a lot of people don't know this, that people have been charged with crimes simply by virtue of being pregnant since Roe, from 1973, the decision that granted the constitutional right to abortion, until now we have seen several thousand people charged with crimes because of their pregnancies. And how I would define that or how I would explain that is that pregnancy becomes an essential element of the crime, if you were not pregnant, you would not be charged with this crime. So these are laws that were often passed without any intention of applying to pregnancy, but have been used by prosecutors in that way.

Laws that make it illegal to abuse a child, for example, or to expose a child to a dangerous situation or to neglect a child. Those laws have been used in the context of pregnancy to charge people who have used illicit substances while pregnant, who are suffering from substance use disorder, drinking alcohol, being in a dangerous place, driving without a seatbelt or driving recklessly. And what that functionally does, is it creates a vulnerability for pregnant people to become criminalized or otherwise surveilled or penalized because they are pregnant, they then become much more vulnerable to state action because the state has an interest in, you know, quote, and I'm using air quotes, you won't be able to see that, but "protecting the fetus." And when they assert that state interest, that automatically reduces or diminishes the rights of the pregnant person.

So that is what has been happening with Roe on the books, which probably surprises a lot of people. But what we are seeing in a post-Roe landscape is, more and more laws are being passed that are, what we like to say, they're saying the quiet part out loud. They are no longer attempting to describe, or market, or characterize laws in ways that the anti-abortion side used to do about protecting women or informing women. They are very, very clearly deciding that fetal life and even fertilized eggs, embryos, and fetuses have more rights than the people who can become pregnant.

And that includes full complete abortion bans, as we know, abortion bans that have no exceptions and even exceptions I think are a real red herring because even when there are exceptions, they are almost completely unavailable to people. We are talking about laws that establish fetal personhood from the moment of conception, and we are talking about laws that either could very clearly and explicitly criminalize people who are pregnant when they have an abortion or self-manage an abortion, or implicitly could criminalize the pregnant person. So it is an incredibly destabilizing legal landscape, but from our perspective, this has all been happening, and a lot of folks might have been unaware of it, but the criminalization of pregnant people had been happening and we expect that the rate at which this is happening will continue to climb in the post Roe world.

Mike: Well, and you mentioned the substance abuse aspect of it, and I think we're gonna talk about something here that I think is gonna surprise a whole lot of people who listen.

Sometimes laws have a scientific, not background, but you know, they use it. Well, the science on substance abuse and pregnancy, we've all heard the whole "crack baby" thing back in the eighties and nineties. Well, the research is showing something totally different, but some of these laws are based on some of those misconceptions.

Dana: Yes and what I think is truly remarkable is I think this entire obsession with regulating the behavior of pregnant people goes back to a now debunked single study from the 1980s that the author himself has apologized for, the New York Times and other major outlets have now apologized for, which highly stigmatized, in particular black women, black mothers, who were, you know, sort of part of this crack cocaine hysteria of the 1980s and the war on drugs in the 1980s and 90s, that essentially claimed that babies born exposed to crack cocaine would have lifelong, incredibly severe consequences. Essentially an entire generation would become like wards of the state and that absolutely never happened. That withdrawal or substance use exposure in most circumstances is a transitory and temporary condition, and that these children and now adults are completely fine. And yet that single study has had decades long ripple effects that are rooted in racism, and misogyny, and white supremacy, and the police state, and mass incarceration, and the war on drugs. But that framework has now been extended beyond crack cocaine, to other substances, to alcohol.

And what I think is really deeply troubling, and also, you know, in some ways fascinating, is what happened in the 1980s and 90s was a collision course between the war on drugs and the war on abortion. And where that landed was pregnant people's bodies, poor people, people of color, who use drugs and are pregnant, they are not only highly stigmatized because they're drug users in this height of, you know the war on drugs, but they're also carrying fetuses that are now potential, again, air quotes, "crime victims" because they've been exposed to some perceived harm in utero. And this concept of a separate and unique victim of a crime is sort of emerging with the idea that fetuses could potentially be people.

Again, as the war on abortion is ramping up in the 80s and 90s and that collides with the war on drugs, and you start to see the criminalization of pregnancy. So the science does not show, as you mentioned, that babies exposed to most substances in utero have unique, certain, and/or severe health outcomes. What we know is that what is far more influential in the health outcomes of pregnancies are environmental factors. Factors surrounding your race, your class, your access to healthcare, your access to nutrition, those are things that are not individual choices that people make. And yet, in America, in our society, we ignore most of those societal issues, then focus very much on those individual factors. What did that individual person do or not do during their pregnancy? And we're going to blame that person for any behavior that they engaged in or didn't engage in and connect that to their pregnancy outcome.

Mike: Now the socioeconomics have so much more to do with it than the other stuff. You know, I was running an addiction mental health hospital during that time, and we were told, honestly, we were told that the children would grow up to be sociopaths and criminals. In fact, in Waukesha County, that's around where we are, in the 1990s, a young pregnant woman was detained for using cocaine, and I think it went to our Supreme Court, it was overturned, but our legislature then, our legislature in Wisconsin, changed the law and they gave unborn children from, I think you mentioned it, from the moment of conception to embryos, full human rights. I think it's called Act 292. Are we the only state that's done that?

Dana: So Act 292 is now somewhat infamous because it is one of very few laws that essentially creates a ground for civil commitment, which is very similar in some - it's not technically a criminal law, but you can be confined, you can be forced to stay at a local jail even, you can be forced to stay in a medical facility against your will for substance use, either alcohol or drug use, or a history of substance use or alcohol use or abuse. And my understanding right now is that there are only three states in the country that have such laws, but Wisconsin's is particularly broad in both its language and its application.

So we're talking about hundreds of women every year who are subject to this law and are confined in local jails or medical institutions while their cases proceed because they are pregnant and have shared with their provider that they are using substances, or have previously used substances, and because of that simple admission, they become essentially wards of the state.

Mike: Well, okay, so I would think that the consequences of that law would result in pregnant women who are using substances, and a lot of women, I think Dana, right, say they quit using drugs, when they get pregnant, what they really mean is when they find out they get pregnant. And drugs like marijuana stay in the system for a while, so if you test positive going to the doctor, it would seem to discourage women from seeking medical as well as substance abuse help, because if you're part of it, you can be detained.

Dana: Absolutely. Every single public health and medical association in the country has rejected the use of either criminal laws or civil laws like Wisconsin's to penalize or criminalize pregnancy and substance use for those exact reasons. It deters people from getting the care they need, either prenatal care or substance use treatment. It actually has well documented negative health outcomes for the pregnant folks and their babies. And in fact, in 2018, the state of Wisconsin worked with Pew Charitable Trusts on research on the impact of Act 292 and found that it did in fact deter people accessing care.

And that as we've seen in some other states and studies analyzing data from other states, when you create a law that targets pregnant people with either criminal or civil penalties like this one does, it can lead to really tragic outcomes including an increase in Tennessee's case, which had a very draconian law for a couple years more recently than when the Wisconsin's law was enacted, it increased infant death in the state during the time in which that law was in effect. It was only in effect for two years, so they had interesting ways to compare the state prior to the law, during the law, and after the law. And controlling for all other factors, it increased infant death, neonatal death in the state significantly during that period of time, because many of the people who need care, who are the ones who have lacked access to care maybe prior to getting pregnant, who may have high-risk pregnancies, are avoiding it because they are so concerned about being detained and separated from their newborn once the baby's born.

Mike: Well, and for years I've worked in schools and especially when I go into a school with young women who didn't intend on getting pregnant, but did, they already have a difficult time with stigma and this can't possibly help at all. You mentioned different states, I think, did I read recently that Arizona is actually - for incarcerated women who are pregnant - that they're inducing birth against the woman's will.

Dana: Yeah.

Mike: Just to control when the baby is born?

Dana: Yeah. You know, it should not be a surprise to anyone that when you start to create these legal frameworks that allow pregnant people to be charged with crimes or to be civilly detained, you are gonna end up with more people in state custody who are pregnant. And most states are not good providers of prenatal care.

Mike: Ha!

Dana: So you have people who their fetus is now the state's responsibility along with the pregnant person and that is not good. No OB provider would ever suggest that jail or a local jail, or a prison, or another detention facility is a good place to be pregnant.

And we've had clients across multiple states who have experienced horrific care while they're being detained. People with gestational diabetes who are not getting the very specific diet that they need to have to not end up having preeclampsia or other complications. We've had people deliver - and this is the thing that Arizona I think ostensibly trying to avoid by inducing people against their will on particular dates - we've had people deliver unaccompanied in jail cells, in bathrooms in the jail, or in showers in the jail, traumatic, horrifying experiences and what we all know, common sense, you know, it would be very clear to many people is that being in your own community, in your own home, surrounded by your family, is the safest and best place to be.

And what I think we also can't lose sight of is that many of these women, most of our clients, are already mothers to young children. So not only are they in these really unhealthy and stressful and isolating conditions, they're also separated from their toddlers, from their one-year-olds, or two-year-olds, or three-year-olds. And that in it of itself causes a level of stress and trauma that is not something that anyone should endure while they're also pregnant. So again, it is something that we are continually trying to remind people of, to educate people on, and to fight, to fight these types of laws and also the application of them.

Mike: You know, sometimes these laws can have a backlash too, right? So I think I read last week that there's a woman in Florida who actually hired an attorney, which a lot of these women can't do, I mean, that's what you're talking about,

Dana: Yes.

Mike: Right? And that her attorney has sued the state saying that her fetus, if you're gonna define it as a person, is having their rights violated by being incarcerated since they didn't do anything. And I would think that would be an interesting path moving forward, if you're gonna define the fetus as a person, then does that person have the same rights to not be incarcerated or held without their consent?

Dana: I mean, I certainly think that lawsuits like that demonstrate the absurdity of trying to establish true personhood rights on fertilized eggs, embryos, and fetuses. The permutations of this are essentially limitless, right? Like you could think about all the ways that you might be able to make these kinds of arguments from all different levels of absurdity, frankly.

So that's one hand. On the other hand, we do not endorse making these kinds of arguments in a way that I think was intended to get this pregnant person out of jail.

Mike: Right.

Dana: An argument can be made that it's an eighth amendment violation, that is cruel and inhuman punishment for someone to be held in jail without the care that they need, there are other ways that we can support people and try and fight for their rights to get them released from jail in prison, and also fight underlying charges and fight the broader system of mass incarceration. But yes, the concept of fetal personhood can be applied in so many ways.

We've seen the headlines around the carpool lane, are they two people for the purposes of a carpool lane now? We've seen absurd cases where people have attempted to date their birthday from their moment of conception for the purposes of running for office, to avoid a statutory rape charge. I mean, there are, you can think of are there citizenship rights? How do we count them in the census? You know, tax credits, custody issues, the list goes on. Pointing out the absurdity, I'm not sure is our best argument. I really want to remind people that pregnant people are people who have the same rights as everyone else and in this country, should not lose their rights by virtue of becoming pregnant, and that I think is the most important.

Mike: Well, and your work that's done, particularly with the poor socioeconomic group, right? Indigenous people, people who are black and brown and of color, some of these hearings that take place, take place very quickly, and sometimes these women go unrepresented or without an attorney, or without an attorney that knows how to navigate for them.

Dana: Yeah. That's absolutely right, and I appreciate you bringing that up. There's two points I wanna make in response to that. One is, Wisconsin's law is a civil law, although we argue that it acts in such a punitive way, that it is almost akin to a criminal law. The law appoints an attorney for the fetus that is taxpayer funded, it does not automatically trigger an attorney for the pregnant person because it's a civil law so you aren't entitled to a court appointed attorney or a public defender if you can't afford one. So we have situations where fetuses are being represented in court by a court appointed lawyer, and the pregnant person, who is a person with full constitutional rights, is not.

So that is one piece that I think is incredibly disturbing and draconian. And then on the criminal side, while all of our clients or all the people that we support, have the right to an attorney because it's a criminal case, as you mentioned, these are cases that are terrifying and highly stigmatizing, and so anyone facing this kind of situation is going to likely work to negotiate a plea, try to move through the system as quickly as they possibly can to get home to their kids, or to give birth outside of a state facility, and what that leads to is a really difficult and almost impossible system that you can actually challenge.

Our criminal legal system - the mechanics of it move so quickly, and there's so many people caught up in it that the very high percentage of people, and almost nearly a hundred percent of people who are indigent, who are using court appointed counsel or public defenders, are going to see the consequences of a potential guilty conviction. And they're gonna try to negotiate a plea to minimize the impact on their lives. And you are then not in a position to argue this is a violation of my rights, I wanna challenge the underlying premise, that's just too much to ask of someone who's in the throes of this system.

Mike: So you also do tons of research and education for the public, and I'm certain people, and we have a lot of therapists who listen to this, and I know that some of them are like, what? What? Some of the stuff we've talked about, they're unaware of.

What do we do to make sure the mom, the child, the family, grow up healthy and substance free?

Dana: Thank you for asking that question. We sort of have to take it at the micro level, and then the meso level, and then the macro level. But in Wisconsin, and in many states, I think there's sometimes a misunderstanding of what, particularly healthcare providers, or social workers in hospitals, are actually required or not required to do. So it's our understanding after we've analyzed the law in Wisconsin, that healthcare providers are not mandated to report drug use during pregnancy to their local DCF enforcement agency. What we would suggest is that healthcare providers provide their patients with non-judgmental, supportive, and confidential care, and that after a patient gives birth, really consider whether toxicology screens are necessary. Understanding that a positive toxicology alone is not sufficient to mandate a report and that a report could lead to new and traumatizing, as we've discussed, challenges in a patient's life. So we want to just really disentangle the treatment of people from the criminal legal system and from the punitive civil confinement system in Wisconsin, and really understand what it means when you make that call to DCF because that initiates a cascade of state involvement that can have such deep and generational harm on patients.

So that's really at the micro level, and we have a lot of resources on our website, pregnancyjusticeus.org that go into more detail on this. And then I think there's a ton of advocacy that could be done in the state, especially by the providers. No one really cares what I have to say as a lawyer, it's the providers who have the on-the-ground experience who are advocating for their patients, who can advocate with DCF, who can advocate with the governor's office, we would love to see Act 292 repealed. I don't know if that could happen given the structure of the state legislature, maybe there's possibility moving forward, who knows? I know there's a big election happening in April, that might have some downstream effects down the road, but for now it's I think advocacy within the state agencies that is going to have the most impact, and then I don't wanna forget this, advocacy within one's own hospital system around creating policies and practices that will not trigger a call to DCF, or a civil confinement case under Act 292.

Mike: That at least gets the family with the newborn off to a halfway decent start, right?

Dana: Yeah. Supportive services that are disconnected from punitive state action. That is my dream scenario. It's almost hard to even imagine in the US that we could provide supportive, non-judgmental, comprehensive care that has no consequences within the criminal, legal, or the civil system, in Wisconsin's case.

So that is my dream.

Mike: Well, and a great place to wrap this conversation, I might add too. Dana, I know you took a lot of time outta your schedule today, I really appreciate you being here. Dana referenced the website and for those of you who listen to podcasts, you know that it's gonna be linked right to the description. So if you need more information, it's just an incredible organization, and if you feel like donating to it, that would be an awesome thing to do also.

Dana: Thank you so much.

Mike: Thank you for joining us, and for the rest of you listening, please listen in next time, we'll talk about more relevant issues. And until then, stay safe and stay educated.

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