Our System Criminalizes Black Pregnancy. As a District Attorney, I Refuse to Prosecute These Cases

Reproductive health remains overly criminalized and stigmatized with little to no acknowledgement. There are more than 1,200 documented cases of women, disproportionately Black and working-class women, who have been arrested because of their pregnancy outcomes since 1973. We have neglected these women for far too long. It’s time to challenge how the criminal-justice system has targeted pregnant people in ways that penalize women’s bodies and undermine reproductive rights and autonomy.

In New Orleans, the maternal-health crisis is clear; as district attorney of Orleans Parish, I absolutely refuse to ignore the issue and will not prosecute women for pregnancy-related outcomes. In 2019, Jefferson County District Attorney Lynniece Washington declined to prosecute Marshae Jones, a Black mother in Alabama indicted for the death of her fetus after she was shot multiple times in the stomach. In this case, despite the salacious and frankly racist attempts to paint Ms. Jones as undeserving and at fault for the death of her unborn child, Washington used discretion to make a call that was about preserving humanity in a moment of tragedy.

Prosecutors have an obligation and responsibility to intervene to stop the cycle of criminalization of Black pregnancy. Jones, like many other Black women who’ve been criminalized for pregnancy outcomes, never should’ve been arrested in the first place.

Read more: Want to Reform the Criminal Justice System? Focus on Prosecutors

The criminalization of pregnancy is a direct outcome of the battles waged over women’s right to their own reproductive freedom that occurred before and after Roe v. Wade. Yet, by the 1980s, lawmakers and media alike were fixated on a sensationalist narrative in which the proliferation of crack in neighborhoods across the country had led to a generation of addicted mothers and “crack babies.” It was powerful propaganda, and despite no science behind it, the narrative legitimized a siege on Black pregnant women and the draconian measures that followed. Hospitals began drug-testing pregnant women and newborns, reporting mothers to law enforcement who had trained nurses to protect evidence. By 1992, more than 160 pregnant women had been prosecuted for suspected drug use – 75% of those women were women of color.

Today, 38 states, including Louisiana, have feticide laws that can be used to charge a mother for pregnancy outcomes, for reasons ranging from the result of addiction or an accidental fall down the stairs. The result is that women already suffering from addiction, mental-health disorders or trauma from abuse that lead to the death of their child can be charged with murder. And while these arrests and prosecutions are happening across the nation, low-income Black women in the South are most likely targeted and charged.

This is particularly alarming because of the ongoing maternal health crisis in Louisiana. Our state has the second highest infant mortality rate in the U.S. More than half the state’s parishes have no access to prenatal or maternal care, and as a result, women have to drive long distances to receive proper care, a reality that all too often means people with low income get little to no care at all. The result is that Black women and women with low income are more likely to die from pregnancy-related causes that were preventable.

A 2020 study found that pregnancy-related deaths are 4.1 times more likely for Black women than their white counterparts. More disturbingly, 59% of the deaths of Black women related to pregnancy were deemed potentially preventable by medical professionals – a twisted result of discrimination, inequitable access to health care, and above all else, institutional racism that was borne in a system that sought to conflate Black motherhood with criminality.

Consequently, pregnant people, again particularly Black people, are forced to live in fear that a miscarriage, stillbirth or a choice made during pregnancy as a result of addiction, illness, trauma or fear could result in criminal consequences that include arrest, prosecution, the loss of children to the state and ultimately the loss of liberty altogether.

Read more: I Was Pregnant and in Crisis. All the Doctors and Nurses Saw Was an Incompetent Black Woman

When people of color and people with low income are denied access to basic forms of health care, including prenatal and maternal care, as a consequence of prejudice, and when they’re arrested, charged and prosecuted for decisions that were made before, during or after pregnancy, it extends injustice in waves that have a ripple effect throughout families, neighborhoods and communities.

No family should have to endure the pain of losing a mother to childbirth because of circumstances that could’ve been prevented, and no one should face scrutiny or be dragged through the criminal legal system because of an abortion, stillbirth, miscarriage or other pregnancy outcome.

As the district attorney, I am committed to finding non-carceral ways of dealing with root causes. I cannot do this work alone. I need our community partners committed to seeing justice through to stand with us. Together, we must treat addiction through community-based holistic harm reduction. We must treat mental-health disorders as what they are and provide support. And we must find ways of dealing with trauma that do not lead to further criminalization of Black women’s bodies. In doing so, we will make the criminal legal system more just and preserve families in New Orleans and beyond.