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NAPW and CCRJ statement of support for bpas and Birthrights intervention in court case


Statement of support for intervention in court case regarding criminal injuries compensation for a child whose mother drank during pregnancy.


National Advocates for Pregnant Women (NAPW)[1] and the Carr Center for Reproductive Justice at New York University School of Law(CCRJ)[2]support intervention by bpas and Birthrights. Appropriate development of policy and law requires medically and legally accurate information about the actual and likely impact of making the criminal law applicable to the actions, inactions, health conditions and circumstances of pregnant women in relationship to the fertilized eggs, embryos and fetuses they carry, nurture, and sustain.


NAPW frequently is counsel on behalf of leading medical and public health organizations in the U.S that oppose the prosecution and punishment of pregnant women as dangerous to maternal, fetal, and child health. For example, NAPW was co-counsel in People v. Gilligan, No. 5456 (N.Y. Sup. Ct. Warren County Apr. 19, 2004) representing the American Public Health Association, the National Council on Alcoholism and Drug Dependence, and the National Coalition for Child Protection Reform as amicus. In this case, amicus supported a successful motion to dismiss two counts of child endangerment brought against a woman based on allegations that she had consumed alcohol while pregnant.


Through peer-reviewed, published research, NAPW has identified more than 400 pregnant women or new mothers in the U.S. between 1973 and 2005 who, but for their pregnancies, would not have been arrested or subjected to equivalent efforts to deprive them of liberty.[3]  Among these documented cases were ones in which a woman’s efforts to seek help after having been physically abused resulted in her arrest, although factors other than the abuse, such as drinking alcohol while pregnant, were cited as grounds for those arrests.[4] In one particularly well-publicized case, a woman was charged with attempted first-degree intentional homicide and first-degree reckless injury allegedly for wanting to “kill” her unborn child through her use of alcohol. Careful research into her case revealed that it was actually her refusal to consent to cesarean surgery that prompted hospital staff to call the police.[5]


Based on research and litigation, our organizations know that all too often, efforts to punish pregnant women and new mothers in the United States are based on medical misinformation and presumption that are not supported by qualified, admissible, scientific testimony.[6] Indeed, medical science finds it very difficult to attribute a newborn’s condition – including a diagnosis of fetal alcohol effect – to any one cause. In the case of alcohol use, much remains unknown about the specific effects, if any, that a woman’s pattern of alcohol use may have in any particular pregnancy.[7] While the import of the existing research is not that drug and alcohol use during pregnancy is "safe," no scientific basis exists for concluding that exposure to these substances will inevitably cause harm or that such harms are so unique or devastating as to justify the radical, new concept that pregnant women and pregnancy may be subject to surveillance, control and punishment through the criminal justice system.


Threatening pregnant women with arrest is likely to deter them from obtaining health care, and if they do seek that care, from speaking honestly and openly with their medical providers.[8] The American College of Obstetricians and Gynecologists Committee on Health Care for Underserved Women has observed, “Although legal action against women who abuse drugs prenatally is taken with the intent to produce healthy birth outcomes, negative results are frequently cited. Incarceration and the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse.” And they concluded for these and other reasons the “use of the legal system to address perinatal alcohol and substance abuse is inappropriate.” [9]


Subjecting pregnant women to surveillance, arrest, and prosecution also threatens their human and constitutional rights and undermines public health. In short, NAPW and CCRJ oppose punishing pregnant women, and urge other jurisdictions with appropriate public health policies to stay the course, and reject efforts to create criminal penalties as a mechanism for addressing health problems women may face during pregnancy.




For more information please contact bpas at press@bpas.org and 07788 725185 or Birthrights on 07793084945.


About Birthrights

Birthrights is the UK’s only organisation dedicated to improving women’s experience of pregnancy and childbirth by promoting respect for human rights. We believe that all women are entitled to respectful maternity care that protects their fundamental rights to dignity, autonomy, privacy and equality. We aspire to advance the human rights and lawful treatment of all child-bearing women. Birthrights is a registered charity funded entirely by donations and run by volunteers. More information can be found at birthrights.org.uk.


About bpas

bpas is a charity which provides reproductive healthcare services including pregnancy counselling, abortion care, miscarriage management and contraception from more than 40 centres across the UK. It supports and advocates for reproductive choice. More information can be found at www.bpas.org


[1]http://advocatesforpregnantwomen.org/.  NAPW is a non-profit organization in the United States that works to secure the human and civil rights, health and welfare of pregnant and parenting women. NAPW seeks to ensure that women do not lose their constitutional and human rights as a result of pregnancy; that addiction and other health and welfare problems women face during pregnancy are addressed as health issues, not as crimes; that families are not needlessly separated because of medical misinformation; and that pregnant and parenting women have access to a full range of reproductive health services, as well as non-punitive drug treatment.

[2]http://www.law.nyu.edu/centers/reproductivejustice. The Carr Center for Reproductive Justice at NYU School of Law (CCRJ) was established in 2013 to conduct innovative research, provide legal services, promote dialogue and expand the academic discipline on reproductive justice issues.

[3] Lynn Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women, 1973-2005: Implications for Women’s Legal Status and Public Health, 38 Journal of Health Politics 299, 311 (2013), available at http://jhppl.dukejournals.org/content/38/2/299.full.pdf+html?sid=b0811f36-d4e4-4b51-a830-e175e6eee40c/

[4]Id. at 313-14; see Charles Levendosky, Editorial, Turning Women into Two-Legged Petri Dishes, Casper Star-Trib. (Wyo.), Jan. 21, 1990, at A8; Charles Levendosky, Editorial, Using the Law to Make Justice the Victim, Casper Star-Trib. (Wyo.), Feb. 4, 1990.

[5] Paltrow and Flavin at 314-15

[6]Paltrow, Lynn and Kate Jack. "Pregnant Women, Junk Science, & Zealous Defense." Champion (May 2010)

[7] See generally, Elizabeth M. Armstrong, Conceiving Risk, Bearing Responsibility: Fetal Alcohol Syndrome and the Diagnosis of Moral Disorder, The Johns Hopkins University Press, 2003.

[8] See, e.g., Sarah C.M. Roberts & Cheri Pies, Complex Calculations: How Drug Use During Pregnancy Becomes a Barrier to Prenatal Care, 15 J. Maternal & Child Health 333 (2010), Sarah C.M. Roberts & Amani Nuru-Jeter, Women’s Perspectives on Screening For Alcohol and Drug Use in Prenatal Care, 20 Women’s Health Issues 193 (2010), Marilyn L. Poland et al., Punishing Pregnant Drug Users: Enhancing the Flight from Care, 31 Drug & Alcohol Dependence 199 (1993).

[9] Am. Coll. of Obstetricians & Gynecologists, Comm. on Health Care for Underserved Women, Committee Opinion 473, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist, 117 Obstetrics & Gynecology 200 (2011).