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Prosectors in Oklahoma successfully argued to a jury this month that a woman who had a miscarriage was guilty of the manslaughter of her non-viable fetus.
Brittney Poolaw, 21, was convicted of second-degree manslaughter by a Comanche County jury on Oct. 5 for the death of her fetus that had a gestational age of 15 to 17 weeks, reported ABC affiliate KSWO in Lawton, Oklahoma. She was charged in the case on Mar. 16, 2020 after a miscarriage that occurred on Jan. 4, 2020.
Obstetricians determine gestational ages based on the date of the woman's last period prior to getting pregnant — i.e., before the date of conception. The U.S. Supreme Court determined with Roe v. Wade in 1973 that legal viability is after the 28th gestational week, when fetal survival is generally above 90 percent, but medical viability is pegged at 25-26 weeks, when the fetus has more than a 50 percent chance of surviving outside the womb, according to the American College of Obstetrics and Gynecology. The Centers for Disease Control and Prevention only defines a fetus as "stillborn" if it is delivered after 20 weeks gestational age; before that, it's medically considered a miscarriage.
The Lawton Constitution reported last year that, according to police, the then-19 year-old Poolaw miscarried at home in early 2020 and was brought to the Comanche County Memorial Hospital with the umbilical cord still attached to the fetus. She told the medical staff that she had used both methamphetamines and marijuana while she'd been pregnant.
Later, in interviews with police, Poolaw allegedly confirmed that she'd smoked marijuana but used methamphetamines intravenously, including as recently as two days prior to her miscarriage. She also allegedly told them, according to the Lawton paper, "that when she first became pregnant, she didn’t know if she wanted to keep the baby or not."
It is unclear from those reports whether she had actively decided to continue the pregnancy, given that she had been 15 to 17 weeks along, simply hadn't made a decision or had few other options but to continue it. The nonprofit Guttmacher Institute notes that 53 percent of women in Oklahoma live in the 96 percent of counties with no facilities that offer abortion services — Comanche County among them — and the state requires a woman go to a provider twice, 72 hours apart, in order to obtain an abortion. Abortion is, by law, not covered by most private insurance plans in the state without an extra rider, and it isn't covered by Medicaid except in extremely limited circumstances.
(In April 2021, Oklahoma's governor signed three bills that will effectively eliminate all abortion access in the state — including a ban on any abortions after six weeks gestational age. The new laws are scheduled to take effect in November. They would not, however, have applied in Poolaw's case.)
Technically speaking, Oklahoma state law did not criminalize women for miscarriages, stillbirths or other fetal harm for which prosecutors felt the woman was at fault until September 2020, when the state Supreme Court ruled that, despite the state's child neglect and homicide laws making no reference to fetuses, the laws nonetheless encompassed a viable fetus whose mother used drugs.
Still, prosecutors in the Poolaw case filed charges against her in March 2020, almost six months before the court's ruling.
In March 2021, the medical examiner released the results of the autopsy on the fetus that Poolaw had miscarried, as reported by KSWO. Tests of the fetus' then-still-developing liver and brain were positive for "methamphetamine, amphetamine and another drug," but they also found evidence of "a congenital abnormality, placental abruption and chorioamnionitis." (The medical examiner did not specifically name the congenital abnormality.)
The CDC defines congenital abnormalities as "a wide range of abnormalities of body structure or function," some of which can be incompatible with fetal viability. Placental abruption is when the placenta separates from the uterine wall, which can be a cause of miscarriage or stillbirth and also kill the mother, according to the Mayo Clinic; it occurs in 1 in 100 pregnancies, according to the March of Dimes. One of its causes can be chorioamnionitis, an infection of the amniotic fluid and the two membranes of the amniotic sac, according to the Cleveland Clinic, that can, on its own, prove fatal to the mother and fetus. That is thought to stem from a mother's urogenital tract infection; a 2010 study of chorioamnionitis in Clinics in Perinatology suggests that it occurs in up to 4 out of 100 pregnancies. The risks of its most serious complications are reduced by timely prenatal care.
(Notably, Native American women have more than twice the maternal mortality rate of white women and are 150 percent more likely to have stillbirths — defined as fetuses over 20 weeks — than white women, according to the CDC. Most studies blame this on Native American women's disproportionate poverty rate and their access to health care — including prenatal care — as well as systemic racism.)
Meanwhile, though there are few studies of meth use during pregnancy, a 2016 study in the Journal of Addiction Medicine on meth use and pregnancy outcomes both noted that "No consistent teratological effects of in utero [methamphetamine] exposure on the developing human fetus have been identified" and that, in other studies of drug use during pregnancy "the effects of poverty, poor diet, and tobacco use ... have been shown to be as harmful or more harmful than the drug use itself." That study found that the most common effects of continuous meth use during pregnancy are low birth weight and premature birth (though the average birth date was still late in the third trimester).
At Poolaw's one-day trial, reported KSWO, the jury was presented with evidence by prosecutors that there was no way to state with certainty that her drug use caused her miscarriage, and both the nurse and the medical examiner noted the fetal abnormalities seen at the autopsy.
The jury convicted her in under three hours. She was sentenced to four years in prison.
"In Oklahoma, we've seen a real spike in the last couple of years" in prosecutions of women who had miscarriages or stillbirths," Dana Sussman, the deputy executive director for the National Advocates for Pregnant Women (NAPW) told Oxygen.com. She suggested that part of the reason for the increase in cases was the 2020 ruling by the state Supreme Court.
"Oklahoma became the third state in the country to have its highest court official sanction these kinds of prosecutions as an expansion of existing criminal law — whether criminal child neglect or child endangerment or child abuse or murder or manslaughter," she explained. "Of course, prior to this ruling, prosecutors were bringing these cases, but this was the first one they had pled all the way up to the Oklahoma Supreme Court" after the lower courts had dismissed them as too expansive.
Sussman said that, in Poolaw's case, her conviction does appear to violate even the broad permissive nature of the 2020 ruling, which only applied to "viable" fetuses.
"In a case like this, how do you established that a fetus is viable at any gestational age?" she asked. "Here we've got both the fact that medical consensus is that this fetus is pre-viability simply because of their gestational age. But in addition to that, the medical examiner listed a whole host of other conditions that the fetus had that would have potentially led to the miscarriage."
"And, of course," she added, "some miscarriages just happen and we don't know the cause."
Statistics developed by the NAPW show that cases like Poolaw's — in which women are prosecuted for miscarriages or stillbirths that the state decides they caused, and/or for drug use during pregnancy— are increasingly more common. Since the legalization of abortion in 1973, a total of 1,600 women in the United States were prosecuted for actions during their pregnancies, the NAPW says; 1,200 of those women were prosecuted after 2006.
Oklahoma, with 57 such cases documented since 2006 and only nine before, is fourth in the nation for such prosecutions. (Alabama accounts for 500 of the 1,200 cases since 2006, making it the state most likely to prosecute women for actions during their pregnancies, followed by South Carolina and Tennessee.)
Sussman notes that many of the cases of child neglect or endangerment brought against women for actions during their pregnancies "involve cases of exposure, not harm. So prosecutors do not even have to allege or prove any harm to the fetus in those cases."
"Women of color are disproportionately represented in these arrests and other deprivations of liberty," she added. "Of course, this is all rooted in the racist propaganda around the 'war on drugs' and 'crack babies' sort of hysteria that surrounded that in the 1980s and 90s."
"The people who are policed the most in all forms," she said, "are disproportionately women of color and families of color."
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