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May 02, 2024 Feature

Representing People Charged with Crimes Associated with Being Pregnant

Daniel N. Arshack

For the past seven years, as an adjunct to my criminal defense practice, my firm and I, as counsel to Pregnancy Justice (previously known as National Advocates for Pregnant Women), have represented people charged with crimes based on their pregnancy-related activity. These cases are litigated in a world in which there is extreme public and prosecution antipathy, especially in certain states, towards people who experience a normal fetal or perinatal demise, who make choices associated with controlling their own bodies while pregnant that prosecutors determine to be criminal acts, or who have substance use issues while pregnant.

The notion of an expected sea change in the prosecution of women in the post-Dobbs world has not yet occurred. The fact is that women have been and continue to be criminalized and prosecuted for choices they make about their own bodies while pregnant. A 2023 study, The Rise of Pregnancy Criminalization: A Pregnancy Justice Report (Pregnancy Justice 2023), found that:

While much attention has been paid to the criminalization of abortion, a look at the case information shows that pregnant people are at risk of being targeted by the criminal legal system, regardless of birth outcome. Primarily carried out under the guise of addressing the issue of pregnancy and substance use, these arrests represent the merging of the fetal personhood movement with the war on drugs to criminalize people for acts and omissions that would not otherwise have been treated as criminal but for their pregnancy.

Id. at 18. What is clear is that the post-Dobbs world has given permission to prosecutors across the country to continue to criminalize women who make independent decisions concerning the circumstances of the birth of their children; have normal miscarriages or still births, are afflicted with substance use disorder, poverty, and trauma, or elect to control their bodies by opting for abortion.

Pregnancy outcome cases and pregnancy behavior cases are all frequently viewed by prosecutors, judges, and the hostile communities in which these cases are brought as “abortion cases.” This article addresses issues and lessons learned through representation of people charged with crimes associated with their pregnancies. Most of the experience predates Dobbs and experience in this area clearly shows that early investigation, early intervention, early engagement with the prosecution, with experts, and with amici, and, importantly, early public advocacy can have a dramatic effect on obtaining a positive outcome for these clients.

If you are asked to work on such a case, your own view on the issues these cases present also needs some examination. You may be religious and believe that abortion is a sin. You may believe that life, from the moment of conception or from some other moment after conception, should be protected and punishment should follow a failure to protect that life. You may believe that drug use is a choice and that having made that choice, any exposure of a fetus to any drugs should be punished. You can be sure that many members of your jury pool, many judges, and many prosecutors hold those beliefs. If you are among those who hold those beliefs, ask yourself if you are able to compartmentalize those beliefs and still render the full-blown defense that every person deserves. Can you wholeheartedly muster the arguments that undermine the prosecution of a person for alleged offenses related to her pregnancy? All of us have limitations. In our work, we call them conflicts, and recognizing where those limitations exist is the first thing that our clients deserve. So, if your beliefs even might interfere with your advocacy for a client, the ethical thing to do is to step aside.

To be sure though, cases that are prosecuted due to a pregnancy outcome, cases involving a person’s right to control their own body, and those that arise out of substance use while pregnant can absolutely be won. They provide opportunities for creative and aggressive litigation. In fact, they demand it. There is nothing “run of the mill” about these cases. While they are not as common as many other kinds of charged conduct, they will become more so, and, when they do arise, they expose a thinly veiled and palpable hatred against women who have made unpopular choices about what they may do with their own bodies. Sometimes those choices are made out of ignorance, poverty, and desperation. Sometimes trauma of one kind or another leads to substance use disorders that affect judgment. Sometimes, our clients make choices that come from considered thought and cogent, reasoned decision-making. In every case, though, the criminalization of the behavior of people as they engage with their own bodies deserves a fresh look and a creative response. The information in this article is designed to alert you to the avenues that you might explore in a variety of situations. There is no one-size-fits-all recipe for these cases. The hope is that when you have a case that raises the sorts of issues addressed here, you’ll consider turning to experienced resources to assist you in protecting your clients.

Pretrial work in pregnancy-related cases is essential and grueling and requires significant team effort. Waiting to start work for a preliminary hearing or an indictment is always a mistake. You need to shift into high gear from the moment you become aware of an investigation or an arrest. Typically, one person, and certainly one person who has never handled these kinds of cases, simply cannot shoulder the load. Public advocacy is a significant component of the pretrial effort. Local and national women’s rights support groups and many public health and medical research institutions are willing and able to participate. It is essential to actively educate the public and local prosecutors of the real science behind these cases and the fact that criminalizing pregnancy-related behavior is contrary to the best interest of the fetus and of women who are and may become pregnant. Some of the organizations that can assist in preparing or joining in amici include Physicians for Reproductive Health, The Academy of Perinatal Harm Reduction, The American College of Obstetricians and Gynecologists, The American Academy of Addiction Psychiatry, The American Medical Women’s Association, and the Drug Policy Alliance. Few of us have the means or experience to organize and roll out the necessary public advocacy.

Finding and retaining expert witnesses, such as forensic pathologists, toxicologists, mitigation specialists, public health experts, forensic psychiatrists, pediatric pathologists, forensic anthropologists, and OB/GYNs and generating the participation of amici at even the pretrial stage are crucial. Demonstrating a mastery of the science of these cases and establishing a dialogue with the prosecution, at the earliest moment, have proven effective. Developing a reputation for litigating every issue aggressively and completely takes these cases out of the ordinary charge ’em and plead ’em scenario and converts these cases into resource drains for local prosecutors and judges.

The free assistance and resources that advocacy organizations such as Pregnancy Justice and If When How can render are just priceless. That assistance includes offering direct representation, co-counsel, and access to experts: organizing amici, managing public advocacy, drafting briefs, brainstorming, training, and connecting individual lawyers (often underfunded public defenders) with the people and resources who can help them handle these cases. The National Association of Criminal Defense Lawyers also has materials available that address many of the issues raised in pregnancy-related prosecutions. If you think you can handle these cases effectively without this kind of support, you are deceiving yourself and doing a disservice to your client.

Our experience demonstrates that if there is even a sliver of a chance to avoid the extreme risk of a finding of guilt at trial, that sliver of a chance should rule the day and its opportunity should be fully exploited. To that end, in virtually every one of the reproductive issue cases we have handled, we’ve had success in convincing one person, either a judge or a prosecutor, to eliminate that unacceptable risk by dismissing the most serious of charges, which carry potential sentences of life in prison, or permitting a fair and reasonable resolution. We consistently arrive at that point because we take every opportunity to advocate for our client and litigate every issue as robustly as the law permits. In our experience, besides several reversals on appeal, we have seen no evidence of actual success in these cases that have either proceeded to trial or pled out early.

Generally, according to a Pew Research study, as gestational age increases support for legalized abortion decreases. Rani Molla, What Americans Think About Abortion, in 3 Charts, Vox (June 24, 2022), (citing Pew Rsch. Ctr., America’s Abortion Quandary (May 6, 2022). Many people, including many prosecutors, characterize any result of pregnancy short of a living and healthy baby a cause for criminal investigation. Indeed, prosecutions occur even when a living healthy baby is delivered by the pregnant person. Prosecutions are being brought for activities relating to pregnancy occurring from the moment of conception to the birth of healthy babies.

Any and every miscarriage or stillbirth can result in criminal prosecution. Miscarriage and stillbirth occur in close to 30% of pregnancies. Gabriela Weigel, Laurie Sobel & Alina Salganicoff, Understanding Pregnancy Loss in the Context of Abortion Restrictions and Fetal Harm Laws, Kaiser Family Found. (Dec. 4, 2019). That number goes up to 50% if the number of people who lose a pregnancy before they are even aware that they are pregnant are included. Miscarriage, MedlinePlus (Nov. 10, 2022). All of these formerly pregnant people are at risk for criminal investigation and prosecutions for murder. Any drug use during pregnancy, even legally prescribed drug use, can result in prosecutions for child neglect and/or child endangerment, even if there is no injury to the fetus. Supporting a pregnant person in making decisions about childbirth or termination can result in criminal charges, even in the absence of a pregnancy termination. The list goes on, and with the passage of time, these kinds of prosecutions will become more common place. See Cary Aspinwall, Brianna Bailey & Amy Yurkanin, They Lost Pregnancies for Unclear Reasons. Then They Were Prosecuted, Wash. Post Sept. 12, 2022).

Many criminal defense attorneys consider ourselves trial attorneys, but, as we know, throughout the United States, upwards of 95% of criminal cases don’t go to trial. We do miss trying cases … but, especially in these kinds of cases, due to the hostile environment in which these cases are tried, we spend a significant amount of time not trying cases to juries, which, of course, requires convincing 12 people in most states (but see Oregon and Louisiana) to vote not guilty. Instead, we spend an increasing amount of time convincing one judge or one prosecutor of the legitimacy of our position, or the weakness of the prosecution’s proof. We spend time educating the prosecutor and eventually the court about the real science that undermines the prosecution’s case. We educate with hard science and social science, and with the support of amici, with real statistics and real data. We demonstrate the extreme cost of litigating those issues and explain the real possibility that their loss could create law that will run counter to their personal predilections.

The opportunity to educate our adversary in these cases should not be passed up. Remember, the prosecutors and the judges have no real familiarity with the science, the statistics, and the social science that address the lack of efficacy that comes with criminalizing childbirth and pregnancy choices. So, we have to be the expert. Some illustrative examples will hopefully shine a light on the opportunities and success available by early intervention and education (communications with the prosecution, motions, and expert referrals and reports are available upon request).

The L.F case, in Mississippi, was a murder charge. L.F. had a stillbirth and called EMS immediately and reported that she had had a stillbirth. After being treated and released at a local hospital, an autopsy was performed and a warrant was issued for L.F.’s computer and her search history obtained. A determination was made that the infant had been born alive and, based on her history of having searched for abortion medication, she was indicted on a murder charge. Pregnancy Justice became involved after she had already been indicted. The early advocacy included generating significant public support for our client, which called for believing women when they report their own birth experiences, the end to the criminalization of legal pregnancy behavior, and the recognition of and reliance on real, reliable science. We established a dialogue with the prosecutor and provided the scientific evidence and reports from our experts in forensic pathology and emergency pediatric medicine, which established that the lung float test relied upon by the medical examiner was unreliable (see Duaa Eldeib, A Lab Test That Experts Liken to a Witch Trial Is Helping Send Women to Prison for Murder, ProPublica (Oct. 7, 2023)), that there was no evidence at all that any abortion medication had been obtained or ingested, and that, even if the infant had been born alive, the treatment of the baby by the EMS workers would have clearly caused its demise. This resulted in the DA agreeing to dismiss the indictment and re-present to the grand jury with the inclusion of the information we had provided to him. He did and there was a no true bill by the new grand jury. Case dismissed.

Lesson learned: Believe the client’s explanation of her own pregnancy experience. If it is different than your own or different than other stories you have heard, it does not mean she is not telling the truth. Look closely at the “science” applied to the evidence in the case and question its reliability even if it is a frequently applied test. Seek opportunities to educate the prosecutor.

M.R. was charged in rural Virginia with performing an abortion on herself, and thereby killing the fetus and then burying the remains. M.R. maintained that she had been thrilled that she was pregnant and devastated when she had experienced a stillbirth late in the pregnancy. Living alone in her trailer in the countryside, she wanted to be close to her deceased baby and so she buried him in her backyard. The prosecution had the remains exhumed five months after they were buried and examined by their medical examiner, who concluded that M.R. had inserted an object into her uterus either through her abdomen or her cervix and penetrated the skull of her fetus, killing him.

We were contacted by local counsel and assisted; first by drafting a motion to dismiss based on a lack of any evidence supporting the charges. While the motion was sub judice, we did the research and retained multiple medical experts, including a forensic anthropologist, a forensic pediatric pathologist, and a professor of obstetrics and gynecology. Our motion to dismiss was denied, but our experts examined the evidence the prosecutor was relying upon and concluded in sworn written statements that there was no medical or scientific support for the prosecution’s claims. In their affidavits, they were able to demonstrate the true cause of the fetal demise. In clear and convincing reports, they explained that the normal growth of a fetal skull includes open areas that, over the term of the pregnancy and occasionally even after birth, continue to grow and ultimately stitch themselves closed. Upon close examination, it could be observed that there were no broken skull fragments inside the skull but, rather, clear evidence of normal growth of bone at the margins of the open areas. The prosecutor’s experts were misinformed and had settled on a scientifically impossible and implausible scenario in order to establish criminal liability. We established a line of communication with the prosecutor and presented our experts’ findings to him during those meetings. After considering our material, the case was dismissed.

Lesson learned: Listen to your client. Be bold in examining the evidence. Question the government’s conclusions. Ask if the conclusions are even commonsensical. Find experts who actually have dealt with similar situations. Take the earliest opportunity to share the expert reports with the prosecution and discuss resolutions.

As special counsel to Pregnancy Justice, we represented A.B. on charges of concealing a birth. A.B. lived in a small town in rural Arkansas. In 2015, A.B. became pregnant with her second child. She was raising her first child and living with her mother, stepfather, and brother in her mother’s mobile home in rural Arkansas. Her mother, who was unaware that she was pregnant, had threatened A.B. that she would have to move out of the mobile home if she had another baby. A.B. did not want to have an abortion, and so she arranged, with a lawyer, for the adoption of her baby, which would occur shortly after the birth.

Close to her due date, she traveled to another city in Arkansas and tried to stimulate labor by ingesting misoprostol pills. She planned to deliver her baby at a nearby hospital and had the assistance of a nurse and the putative adoptive parent. Her plan did not pan out when, after nearly a day of waiting, she did not go into labor, so she returned to the mobile home she shared with her family. After going to bed, she was awakened by the discomfort of labor. She labored alone and silently in the bathroom, and, sadly, her pregnancy ended in a stillbirth shortly after 3:00 a.m. She cleaned up the bathroom, put the deceased fetus in a plastic bag, and put the remains on the passenger seat of her car. Then she fell asleep for a few hours until it was time to get her son ready for school. She did not tell her mother what had occurred. After she fed her son and got him ready for school, she called her lawyer and explained that the adoption would not be happening because she had experienced a stillbirth and asked what she should do with the fetal remains. She was instructed to take them to the hospital and explain what happened.

After her son left to catch his bus to school, A.B. took the fetal remains with her to the hospital and asked to see a doctor and explained what happened. The hospital reported her to law enforcement, and she was arrested five days later on charges of concealing a birth, a class D felony punishable by up to six years in prison and a fine of up to $10,000, and abuse of a corpse, a class C felony also punishable by up to six years in prison and a fine of up to $10,000. Both of these statutes are from the 1800s and are rarely used. The laws are examples of the broad range of statutes available to prosecutors intent on finding laws they can use to prosecute people who have—or are perceived as having—abortions.

The charge of concealing a birth related only to the fact that A.B. put the fetal remains in her car and did not tell her mother that she had a stillbirth. While A.B. did conceal the birth from her mother, she did not conceal it from the nurse who had advised her, a friend who had helped her, her priest, two attorneys, or the hospital where she brought the deceased fetus. The charge of abuse of a corpse was based on her placement of the fetal remains in a plastic bag in her car before she delivered them to the hospital.

A.B. was represented in her trial by her relative. He voir dired on the jurors’ views about abortion (in rural Arkansas) and ended up with a jury made up entirely of people known to oppose abortion in all circumstances (including rape and incest). At trial, the prosecutor introduced (and the court allowed over counsel’s objection) highly prejudicial evidence about A.B.’s marital status, past pregnancies, and outcomes, including a legal abortion. Although the judge granted a directed verdict in A.B.’s favor on the charge of abuse of a corpse, the judge nonetheless permitted the jury to consider extensive evidence and prosecutorial comments about A.B.’s character, sexual history, pregnancy, and legal reproductive choices in its consideration of the remaining charge of concealing a birth. After four minutes of deliberations, the jury convicted A.B. of the charge and thereafter the jury sentenced her to the maximum permitted: six years in prison. A.B. spent three months in jail before bonding out pending appeal, and she lost custody of her son.

In preparing her appeal, we sought and received amicus support from the National Perinatal Association, who moved the appeals court for permission to file an amicus curiae brief in support of A.B. However, in what felt to us like a telescoping of what was to come, the court denied the application for amicus participation.

Following oral argument, the three-judge panel ruled unanimously that most of the constitutional issues raised on appeal were not adequately preserved by trial counsel, so it did not address these issues. However, among the constitutional issues raised on appeal was the violation of A.B.’s due process rights of fair warning of what the concealing birth statute covers. The court ruled that since the law had no explicit time frame for how quickly a woman must tell someone after experiencing a stillbirth, concealing a birth can happen “in an instant.” Finally, though, while dodging all of the constitutional deficiencies raised in the appeal, the court acknowledged that the trial court had abused its discretion in allowing evidence related to A.B.’s abortion history and her ingestion of misoprostol due to the obvious resulting prejudice to A.B. The court, therefore, reversed the conviction and remanded the case to the trial court for retrial. The remand permitted the prosecution 12 months to decide whether to retry the case. Although the state initially went forward with a new prosecution, after the appeal process highlighted the legal problems with the concealing a birth statute, the state finally agreed to fully resolve the case in November 2018 with a plea to a noncriminal offence of attempted obstruction of governmental administration with no fine and no jail time imposed.

Lesson learned: As much as we might wish that an appellate court address the significant constitutional issues that we raise in our papers, we must never forget that our purpose in these cases is to prevail on behalf of our individual client, and, therefore, when there are factual, nonconstitutional, evidence-based issues to raise, we have to raise them as well. In A.B.’s case, if we had tactically decided to focus exclusively on the obvious constitutional deficiencies, she would likely have served her six-year sentence. Demonstrate your resolve and endless stamina by fully litigating every issue that arises.

We represented K.G. in Oklahoma on a murder charge. She had a stillbirth at home and both she and the fetal remains tested positive for methamphetamine. (Be aware that methamphetamine does not cause fetal demise.) Following her stillbirth, she kept the deceased fetus by her bed for several days and eventually put it in a box and, when it started decomposing, she tried to bury it in her yard, but finding the ground too hard, she put it in a garbage container in her yard, where it was found some days later. Disturbing photographs of the decomposed fetus were ultimately ruled admissible. She was charged with murder, for which she was exposed to life in prison. The murder charge was dismissed after the preliminary hearing, but it was replaced with a child neglect charge based on the mere exposure of the fetus to methamphetamine (which also does not cause fetal injury), for which she was still exposed to life in prison. We initially prepared and argued a motion to dismiss at the trial level. We won that motion and the prosecution appealed. We lost the appeal and were sent back for trial. In Oklahoma, the jury sentences and there is no mitigation evidence admissible in a nonmurder case (Okla. Stat. § 22-975). In addition, we were informed by the judge that we should expect that if she pled, he would listen to any mitigation evidence we wanted to provide, but if she went to trial, he would, as he always did, approve whatever sentence the jury imposed. The prosecution refused to offer any plea bargain but chillingly said only that, “if she was interested, she could get an offer that she might be able to survive.” After a long and difficult consultation with our client, she elected to make a blind plea to the indictment, and we would then present the relevant mitigating evidence. At the three-day sentencing hearing, the prosecution asked the judge for a 38-year sentence. We presented the mitigation evidence from a physician who specializes in addiction medicine, a forensic psychiatrist, a mitigation specialist, a forensic pediatric pathologist, and a physician who specializes in identifying causes of stillbirth and placental examination (all worked either pro bono or deeply discounted). The judge said that he found our evidence compelling and sentenced her to serve time based on what he considered the crime of abuse of a corpse only until she finishes a drug treatment program. She served approximately 12 months.

Lesson learned: Find the path that permits the most important and persuasive evidence to get before the court. Our judge in this case was willing to be persuaded by our explanation of how the client’s trauma led to self-destructive choices and decisions with tragic consequences. In this case, due to the peculiarities of Oklahoma law and the intransigence of the prosecution, the only way forward was by entering a blind plea and thereafter presenting compelling mitigation evidence.

C.B. was charged with murder in Hanford, California (Kings County), related to a stillbirth she experienced. At the time, she had a methamphetamine substance use disorder. She was charged with murder. With the able assistance of our local counsel, we filed an initial motion to dismiss, contending that the murder statute did not permit prosecution of women for the outcome of their pregnancies based on their conduct while pregnant. When our motion was denied, we filed a writ of prohibition in the court of appeal and, when it was denied, appealed to the California Supreme Court. These applications were supported by a variety of amici. With the assistance of the ACLU of Northern California and an immense amount of public advocacy focused on the illegitimacy of the prosecution, we solicited and received the support of the California Attorney General, who filed a brief in the court of appeals and the supreme court supporting our position. The case was ultimately referred to the trial court to further expand the factual record by holding a preliminary hearing. We also filed a writ of habeas corpus in the court of appeals to have C.B. released on her own recognizance pending the resolution of the case. When the court of appeals denied our writ, we again appealed to the supreme court and were granted an order to show cause hearing at the trial level to review the conditions of release. Following that hearing, after 17 months in jail, C.B was released on her own recognizance and entered a drug treatment program. After her release, a preliminary hearing was held and probable cause to bind her over for trial was found. We then filed a new motion to dismiss, which was finally granted by the trial court. The case was dismissed. The AG later issued an advisement to all prosecutors in California that they were not to prosecute people for the outcome of their pregnancies based on their conduct while pregnant.

C.B. recently received her associate degree in public health and, while she currently manages a restaurant, she will soon be counselling people who have endured some of the traumas she has risen above. As a result of our case and the public advocacy that ensued, the state legislature passed AB2223, and the governor signed a law making it crystal clear that no person in California would be prosecuted for the outcome of their pregnancy based on their conduct while pregnant. Finally, following the dismissal, the long-term and incumbent prosecutor in this case, who had previously run unopposed in very red and ultraconservative Kings County, was challenged by a woman who campaigned on a platform that included a promise not to ever prosecute people based on the outcomes of their pregnancies. She won!

Lesson learned: The commencement of a vigorous public advocacy campaign, even before C.B. was indicted, was central to our representation. We filed a writ of prohibition on her behalf before her preliminary hearing and twice went to the Supreme Court of California, first challenging the application of the murder statute to a pregnancy outcome and again on a writ of habeus challenging her bail status before she was ever indicted. These early interventions set the stage for her release on personal recognizance and our motion to dismiss when she was finally bound over after a preliminary hearing. The trial court judge knew that anything other than dismissal would send the case back up through the appellate courts. There can be no advocacy opportunity ignored.

Defense attorneys are typically reactive. It is something of an oversimplification to say, but typically, our clients are arrested, and we wait to see the charges. The grand jury is convened, and we wait to see an indictment. We spend time with our client and consider what kind of investigation to engage in, but we often wait to see what discovery the prosecution provides before we commence that investigation. We play our cards close to our chest and disclose very little to the prosecution until we must so as not to give up an advantage. The kinds of cases described in this article are different and they demand a different approach. Cases in which people are charged with crimes based on their pregnancy-related activity require a running start. Defense attorneys need to be proactive, not reactive. Finding the valuable assistance and necessary support for these very difficult cases; providing public advocacy, engagement with the press, and early consultation with experts; organizing amici; sharing real science with the prosecution; demonstrating mastery of the issues; fearlessly litigating every issue that arises … these are the elements that lead the way to success. Please believe that, despite hostile environments, with early preparation, persistence, and the stamina these cases require, you can prevail for your clients. And please, if you have such a case, reach out for support.

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Daniel N. Arshack

Arshack Hajek & Lehrman

Daniel N. Arshack is the managing partner at Arshack Hajek & Lehrman in New York. His practice has a particular focus on international issues and pregnancy related prosecutions.