Women are being jailed for losing their pregnancies. The US’s post-Roe v Wade reality is already here

Brittney Poolaw, sentenced to four years in jail after she suffered a miscarriage (Copyright of state)
Brittney Poolaw, sentenced to four years in jail after she suffered a miscarriage (Copyright of state)

Brittney Poolaw, a 21-year-old Indigenous woman living in Oklahoma, didn’t know if she wanted to be a mom or not when she found out she was pregnant. According to The New York Times, she told a detective “she wasn’t familiar with how or where to get an abortion”, so she continued to carry the pregnancy. Then, between 15 and 17 weeks gestation, she suffered a miscarriage at her home before going to a nearby hospital.

What happened next was not only the direct result of anti-abortion laws meant to curtail both easy-to-find accurate information about and access to abortion care, but the very outcome anti-choice lawmakers are working tirelessly to normalize: a person was imprisoned because they were no longer pregnant.

Following her pregnancy loss, Poolaw was charged with third-degree manslaughter. The prosecution alleged that Poolaw was using methamphetamine, one of several “conditions” they claimed “contributed” to the miscarriage. Yet while an autopsy confirmed methamphetamine was president in the fetus, the medical examiner’s report did not claim that the drug caused the miscarriage; instead, the autopsy found that the loss could have been caused by “a congenital abnormality and placenta abruption, when the placenta detaches from the womb”.

Unable to post her $20,000 bail, Poolaw spent over a year in jail during the ongoing Covid-19 pandemic before a Comanche County Courthouse found her guilty and sentenced her to four years in prison on 6 October. Poolaw’s attorney has since filed a notice of intent to appeal.

The ruling has been dubbed dystopian by reproductive justice, pregnancy, and abortion rights advocates. Some have likened Poolaw’s sentencing to something out of The Handmaid’s Tale, arguing that Poolaw is a living cautionary tale of a post-Roe v Wade America.

But the sad truth is that this reality has long existed in the US. More and more white women fear they’ll face it in the future, but Black, brown, Indigenous, and other people of color have been enduring it for decades.

In 2019, Marshae Jones was five months pregnant when she got in an altercation with another woman and was subsequently shot. She lost her pregnancy as a result, and was later arrested and indicted on manslaughter charges.

In 2018, Keysheonna Reed, already a mother of three, gave birth to stillborn twins in her home. Panicked, she put the bodies in an old purple suitcase and left it on the side of a county road. She later turned herself in, and while a coroner confirmed the stillborn twins had died prior to birth, she was charged with two counts of abuse of corpse and given a bail $50,000 – an amount twice the per capita income for the Arkansas county Reed called home.

In 2019, Georgia Governor Brian Kemp signed HB 481, a law banning abortions that occur after embryonic pulsating cells (what anti-abortion lawmakers term a “heartbeat”) are detected. The law also established a fetus as a person, making it possible for women to be criminalized for having not only abortions, but miscarriages. The law was later blocked by a federal judge. Now, the US Supreme Court is poised to hear arguments regarding a similar law in Texas, SB8, which has banned abortion past 6-weeks gestation and deputized citizens to sue people who they believe provided abortions or helped someone obtain an abortion.

In Arkansas alone, five women have been arrested for either suffering a stillbirth or a miscarriage – three between 1884 and 1994, one in 2015, and one in 2016. Black women are twice as likely to experience stillbirth than white or Latinx women, so-called “fetal personhood” laws and legislative language – like all anti-abortion laws that either ban abortion outright or place medically unnecessary barriers to accessing care – disproportionately impact Black mothers.

Another study, this one commissioned by the National Advocates for Pregnant Women (NAPW), found that instances of women being prosecuted for losing their pregnancies is becoming more common: while 413 cases of women were prosecuted from 1973 to 2005, there were 1,250 cases between 2006 and 2020.

It’s not hyperbolic to say that miscarriage is not only a common and often heartbreaking part of reproduction: it’s now, like abortion, possibly a criminal one.

Over half of all the women in US prisons are mothers, and 80% of the women sitting in jail because they can’t afford bail are moms. And since the majority of people who have abortions already have at least one child at home, anti-abortion zealots are purposefully making it easier for more and more moms to be separated from their children and imprisoned – all under the guise of upholding their purported “family values.”

What happened to Poolaw, and Reed, and Jones, and many others, is not the proverbial canary in the coal mine of a US without Roe v Wade – they are part of a long-established reality that is getting ever more dire. 2021 has already been dubbed the worst year for abortion access since Roe was decided, with a historic 90 abortion restrictions enacted in the first six months of the year.

The cruelty is, and always has been, the point. The aim of the anti-abortion advocates and the politicians who placate them is not to “protect life” or “support families” or “honor motherhood”. Their goal is to force people to remain pregnant when they don’t want to be and to have the legislative and judicial power to punish them when they are no longer pregnant – regardless, it seems, of how that pregnancy ended.

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