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Courts Hear Cases on Pregnancy in Prison

— Lyn Stoesen, News Staff


NASW and its Texas Chapter have joined a friend-of-the-court brief that addresses probation sanctions issued in the name of protecting fetal health, and a ruling has been issued in a case involving the rights of incarcerated women to access abortion services, in which NASW filed a brief.

Fetal health

In the case Lovill v. Texas, Amber Lovill pled guilty to felony forgery and received a two-year state jail sentence, suspended pending completion of three years in community supervision. In July 2007, she submitted to a drug test and informed her community supervision officer that she was pregnant. The drug test was positive, and the officer filed a violation report and issued a motion to revoke her suspended jail sentence. The case is currently before a Texas Court of Appeals.

The state "repeatedly and explicitly stated that its reason for seeking to incarcerate Ms. Lovill during her pregnancy was concern for the 'unborn child' . . . but the state was well aware that as a result of the penalties it sought, for the remainder of her pregnancy Ms. Lovill would remain incarcerated . . . with no access to any drug treatment, nor access to appropriate prenatal care," the brief states.

The brief also notes that the county jail in which Lovill was incarcerated "has a well-known and documented history of severe health and safety violations . . . [and] also allows the practice of shackling women who are pregnant. . . . In addition, to the detriment of her child's well-being, Ms. Lovill and her newborn were separated shortly after birth, and they will remain separated for the duration of her incarceration.

"The probation sanction ordered against Ms. Lovill constitutes an unauthorized rewriting of the community supervision law to address issues of pregnancy and addiction and an instance of selective enforcement based on pregnancy," the brief states. "This contravenes basic principles of due process, violates Ms. Lovill's fundamental constitutional rights and imposes unnecessary risks to both maternal and fetal health."

The brief makes several arguments:

  • The Texas Code of Criminal Procedure does not authorize the imposition of probation sanctions in the name of protecting fetal health. The brief notes that "it is well settled that the Penal Code does not permit prosecution and punishment of a woman who becomes pregnant because she seeks to continue to term in spite of a drug-dependency problem. Nonetheless, in the name of protecting Ms. Lovill's fetus, the State has used the community supervision statute as a back door method to achieve just that result." It continues, "This Court should refuse to empower probation officers and courts to punish women who become pregnant and continue a pregnancy to term in spite of a drug-dependency problem."
  • The selective and disproportionate punishment of Lovill, because she was pregnant, violates her constitutional right to bear a child. The brief argues that "the use of criminal laws to penalize women recovering from drug dependence, because they choose to become pregnant or to continue a pregnancy, is subject to strict scrutiny under the United States and Texas constitutions" and that "selectively enforcing sanctions against pregnant women penalizes the decision to carry to term and is not narrowly tailored to advance a compelling state interest. . . . The selective application of probation sanctions against women who . . . continue pregnancies in the recovery process . . . results in severe liberty deprivations while undermining, rather than advancing, maternal, fetal and newborn health."
  • Enforcing a probation sanction against Lovill, because she was pregnant, constitutes sex discrimination in violation of the Texas Equal Rights Amendment. "Paternalistic stereotypes and misunderstandings about women's reproductive health underlie the differential treatment in this case," the brief states. "The selective enforcement against Ms. Lovill thus constitutes an abuse of the State's law enforcement power." Further, "because the State's response to Ms. Lovill's pregnancy and drug use is grounded in unfounded assumptions and stereotypes about the conduct of women as solely determinative of pregnancy outcomes, the State cannot demonstrate that the selective enforcement of a probation sanction against Ms. Lovill is the only means to advance fetal and newborn health."
  • Selective enforcement of criminal sanctions against pregnant women undermines maternal and fetal health. "Every leading medical, public health and research group to address the issue of drug use and pregnancy has concluded that punitive approaches such as prosecution, probation sanctions and imprisonment are counterproductive and dangerous to women, fetuses and newborns," the brief argues.

"Whereas the health and wellbeing of pregnant women and their future children will be enhanced by supportive and voluntary relationships with health care providers, selectively enforcing criminal sanctions against pregnant women who use drugs will have the opposite result — one that frightens pregnant women away from the public health sphere and the critical medical and social services that they need," the brief states.

Further, "no state interest in maternal, fetal, or newborn health can be advanced by incarcerating pregnant women in jails or prisons . . . that lack adequate facilities and health services and where dangerous and inhumane policies such as shackling pregnant women are enforced."

The brief also argues that "incidents of relapse are normal and expected during the course of recovery from drug use, and pregnancy does not require or justify harsher treatment" and that "the practice of separating newborns from incarcerated mothers poses substantial risk of harm."

Access to abortion care

A federal appeals court in January upheld a ruling that allows women prisoners in Missouri to access abortion care. NASW had joined a friend-of-the-court brief in the case, Roe v. Crawford.

The court affirmed a district court ruling that a prison policy that prohibits access to abortion care violates the 14th Amendment right of women in prison to choose to terminate pregnancies.

NASW and its Missouri Chapter joined an amicus curiae brief in the case. The brief made several arguments:

  • The policy of denying access to abortion jeopardizes the rehabilitation of women prisoners by overriding the autonomous decisions they have made about their own well-being. The brief states that rehabilitation is achieved by instilling self-sufficiency and independence in prisoners, and the policy undermines this.
  • The policy places an extreme burden on women prisoners and their families. The brief notes that it is difficult to maintain a parent-child relationship from prison; that women prisoners are often barred from parenting children they have given birth to; and the challenges of parenting from prison results in harm to some women and makes rehabilitation more difficult.
  • The policy exacerbates existing obstacles to a woman prisoner's reentry into society. The brief argues that women prisoners already face substantial obstacles to supporting themselves and their families, including economic and educational barriers; and that many women prisoners must also overcome mental health issues, substance abuse and experiences of sexual and physical abuse.

"The Missouri policy undermines the penological goal of rehabilitation without any legitimate justification and it arbitrarily and needlessly imposes hardship and suffering on incarcerated women and their families," the brief concludes.

Search the NASW Amicus Brief Database.