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4 states are using fetal personhood to put women behind bars


Anti-abortion laws recognizing what's known as fetal personhood are being used to prosecute pregnant or postpartum patients with a history of substance abuse. In states including Alabama, Mississippi, Oklahoma and South Carolina, health care providers have shared personal information with law enforcement, sometimes without a warrant or informing the patient. The Marshall Project's Cary Aspinwall wrote about several mothers who were incarcerated for child endangerment or neglect even after they delivered healthy babies. Cary, thank you for joining us.

CARY ASPINWALL: Thank you for having me.

MCCAMMON: I want to start by laying the groundwork here. What exactly is fetal personhood, as far as these laws are concerned?

ASPINWALL: Well, with the concept of fetal personhood - this comes from the idea that the fetus should have the exact same rights as a full-born child.

MCCAMMON: And, of course, we know that the landscape around pregnancy and abortion regulation has changed dramatically with the Supreme Court decision last year that overturned Roe v. Wade. How is that affecting the way that these fetal personhood laws are being used?

ASPINWALL: Well, it's a huge change because the policing of pregnancy in this way is not necessarily new. But what happened last year with Dobbs basically cemented the right of these states to do this. Because the Dobbs decision said, well, it's really a states' rights issue, and if they want to make a fetal personhood law or give fetuses the exact same rights, they can do that.

MCCAMMON: And what do these prosecutions look like on a practical level? I mean, how are states using these fetal personhood laws to police or prosecute pregnant and postpartum women?

ASPINWALL: So what happens is these women are struggling with substance abuse. They go to their doctor either for prenatal care or they go to the hospital to deliver the child. And they tell someone - their doctor, their nurse - if they're using or they have concerns because they've been using marijuana for morning sickness or in some cases they were struggling with meth addiction. Or they don't say anything, and then the hospital tests them for drugs, and it might show up on the mother's test. But in some cases, the mother tested clean, and it showed up in the newborn's first bowel movement.

And in those cases, the drug use may have happened very early in the pregnancy, before the mother knew she was pregnant. And yet they're still prosecuting the women. And what's happening is they can prosecute these women in these states without any proof of harm. So the baby can be born perfectly healthy, but that positive drug result will trigger a whole law enforcement investigation where they get access to all the medical records and then are using them to kind of prove a court case against them.

MCCAMMON: Yeah. I want to understand more about how this happens. I mean, in your article, you give an example of a hospital sending a newborn's test results to a clinic without notifying the mother. How did that happen? I mean, is it something that women sign permission over without realizing when it comes to passing on these test results?

ASPINWALL: Well, there is a Supreme Court precedent that comes out of a South Carolina case that says basically, you know, just signing a waiver at the beginning in the hospital - it doesn't constitute informed consent under the law. But that's kind of what they're doing in some of these cases, we believe. They may notify the woman. Every case is a little different, and each state is a little different.

I think everyone thinks of privacy rights and medical - we think of HIPAA - right? - the privacy rule. But there's a broad exemption under HIPAA for if someone believes a crime has been committed. So that opens the door for these law enforcement agencies through the child welfare investigation sometimes or through their own investigation to access these women's medical records. And there's a real question of whether that is being done legally or if they're violating the civil rights of these women in some cases under the HIPAA privacy rule.

MCCAMMON: Now, another concern you mentioned, and something we've heard from doctors and patient advocates, particularly in states where abortion is now illegal, is the possible impact on patients experiencing miscarriage. Is patient information being used to prosecute women in these cases?

ASPINWALL: Yes. Well, there actually have been lots of cases where they've prosecuted women for a stillbirth or miscarriage, allegedly because of a drug test that happened. But the problem is a lot of the causes of miscarriage and stillbirth are genetic, actually. But they're not ruling those causes out. They're just going ahead and using the positive drug test to prosecute it. The medical community, by and large, is very much against these prosecutions because what they don't want is women avoiding getting prenatal care or going to the hospital when they really need it because they're afraid of getting prosecuted or locked up in jail.

MCCAMMON: What is the appropriate role of health care providers when they're presented with a person's potentially harmful health information? And how well-trained are health care providers about this?

ASPINWALL: Well, it's a tough thing because under the law, under these child welfare laws, they've been told, well, you're a mandatory reporter, so you have to mandatorily report this to child welfare agencies. It's a little mixed. This goes state by state.

MCCAMMON: We are in a moment where the legal landscape is changing rapidly because of the Supreme Court decision last year. What do you see happening next when it comes to fetal personhood laws and their application?

ASPINWALL: I think that they are going to expand. You know, the experts I've spoken to say that you're going to see more prosecutors just taking these laws and applying them where they see fit. And until somebody challenges it in court, it remains to be seen what will happen.

MCCAMMON: That's the Marshall Project's Cary Aspinwall. Cary, thank you so much for your time and for sharing your reporting.

ASPINWALL: Thank you for having me. Transcript provided by NPR, Copyright NPR.

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