life after roe

When Pregnancy Is the Crime

An exit interview with Lynn Paltrow, who has spent decades representing women jailed for miscarriages and stillbirths.

Paltrow at an event honoring her career in May 2023. Photo: Yekaterina Gyadu for Pregnancy Justice
Paltrow at an event honoring her career in May 2023. Photo: Yekaterina Gyadu for Pregnancy Justice

At a single table in Manhattan last Wednesday sat Chelsea Becker, who was charged with murder and jailed for more than a year after prosecutors blamed her stillbirth on methamphetamine use; Rinat Dray, who has spent much of the past decade suing Staten Island University Hospital for, according to its own notes, “overriding her refusal” to have a Cesarean birth; Tammy Loertscher, who was jailed and whose fetus was assigned an attorney by the state of Wisconsin after she disclosed past drug use to doctors; and Julie Burkhart, who operates abortion clinics in Wyoming and Illinois, having previously done so in Kansas and Oklahoma.

They had come together to salute Lynn Paltrow, who had just stepped down from the leadership of the recently renamed Pregnancy Justice, which she founded as the National Advocates for Pregnant Women more than two decades ago. (“Pregnancy Justice is much shorter and hopefully more memorable,” she said.) Though primarily a legal advocacy group, it describes its mission as working “to ensure that no one loses their rights because of pregnancy or because of their capacity for pregnancy, focusing on pregnant people who are most at risk of state control and criminalization: those who are low-income, of color, and drug-using.” Paltrow, who got her start in mainstream reproductive-rights groups, opened her own shop, still a relatively small and scrappy group with outsize influence, because, she said that night, “I could not think of any other way that I would be able to carry out the work that didn’t fit.” She’s now ready to pass the torch.

At the podium, Becker remembered being held on a $5 million bail she had no way of paying, then receiving a letter from Paltrow and her team. “It said, ‘We want to help you and we will not charge you for this help. Write back if you want us to help you.’” Paltrow, she said, was more than just the lawyer who helped get those murder charges dismissed; she’d encouraged Becker on her path to sobriety and to community college and had never forgotten Becker’s birthday. She pointed out it was Paltrow’s 65th birthday that day. Burkhart recalled that after an anti-abortion activist murdered her former boss, abortion provider Dr. George Tiller, in church, Paltrow dropped everything to come to Wichita and be at her side. Onscreen, reproductive-justice legend Dorothy Roberts called Paltrow “perhaps my longest ally in the fight for reproductive justice,” and onstage, SisterSong executive director Monica Raye Simpson sang part of a song she wrote: “We’ve got to keep on pushing. We’ve got to feel the fire deep within.”

Paltrow’s instinct to keep pushing has often made her less popular than she was inside that room that night. For decades, defending pregnant people who use drugs or disobey doctors was off-message for a movement that was focused on persuading Democratic politicians and Republican-appointed judges to keep abortion legal on paper. Paltrow’s argument, which has proved prescient since Roe v. Wade was overturned, is that these cases, however unfavorable the optics may be, were the first round of a fight for the fundamental control of people who could get pregnant. I spoke to her recently about her work and what comes after the Dobbs decision.

How did you first come to understand what the work of Pregnancy Justice would be?
Pregnancy has been the primary way in which in the United States, women are being policed and limited in their basic rights. And why they have in fact, never been recognized as full persons under the law. I started the organization in part because it was the only way I could continue to work on the cases that I thought needed to be addressed in a more comprehensive way. Not just lawyering, but also organizing and education. I continue to understand the extent to which pregnancy is the mechanism by which sexism and misogyny are carried out in a country where sexism is at least somewhat taboo. You can’t do the controlling directly, so you do it through regulating pregnancy.

Cases about drug use or forced interventions during pregnancy are not what I associate with traditional reproductive rights litigation – challenging state laws that restrict abortion.
I started out as a lawyer defending the right to choose abortion. And then while I was at the ACLU’s Reproductive Freedom project, I started getting the cases where anti-abortion arguments were also being used to hurt women who did not want to end their pregnancies.

One day in 1985 — I’m in my late 20s and only a few years out of law school — a call comes in from a reporter. And it was a journalist saying something like, “A woman’s been arrested in California. They’re saying that she committed a crime, a kind of child abuse, because of what she did while she was pregnant. Do you have any comment?” Pamela Rae Stewart is a rural, poor, low income white woman in California who gives birth and she almost bleeds to death. The baby’s born with severe brain damage, and she’s arrested and charged with a crime for failing to get to the hospital quickly enough on the day of delivery, not following her doctor’s advice to get bedrest — a mother of two living in a trailer— and allegedly not taking medication her doctor recommended. Stewart was also charged because she had intercourse with her husband on the morning of the day of delivery, which they alleged caused the bleeding. And she allegedly used drugs, although as the case progressed, that became the most salient factor. So everything that made her a criminal in relationship to her pregnancy were things that had nothing to do with crimes. They just had to do with living and having the right to make your own medical decisions.

And then Angela Carder’s case happened within a year. While comatose, she is forced to have Cesarean surgery that she does not want, that her family says she does not want, even though the judge knows that it could kill her. In her case, a guardian, a lawyer, was appointed for her fetus. And it just so happened that corporation counsel for the District of Columbia also showed up and argued for the fetus. [Within two days of the surgery, both Carder and her baby died.]

Both of those cases made very clear that all of the anti-abortion arguments could be used as a mechanism for controlling and penalizing any pregnant person, whatever their intent is, whatever the outcome of their pregnancies were. Those two cases basically laid out every possible consequence of viewing the unborn as separate persons and the ongoing reality of the doubt that we have as a society about the personhood of the people who get pregnant.

Did you get asked by your colleagues, what does this have to do with what we’re doing here?
My experience at a number of the leading reproductive rights organizations is that their focus was defending the right to abortion and the doctors who performed those abortions. It was controversial for me to take these cases involving arrests of women who were going to term or seeking to go to term. It was not intuitive to even the people who were doing reproductive rights law. And even to this day, the leading groups defending the right to choose abortion, they have their hands full, and we need them to be defending the right to abortion. But what I’ve noticed is that the human brain is a binary one. We see things very simply, black and white. People find it difficult to recognize that abortion is about pregnancy. I found these letters from when I was at the ACLU from members, very upset that we were doing those cases.

I literally had a bioethicist say to me many years after I left the ACLU and was running Pregnancy Justice,I remember when you used to work at the Reproductive Freedom Project and you were working on abortion. Why did you switch to working on pregnant women?”

The idea is that people who end their pregnancies are different from the people who continue. And part of that is what I would call defamatory rhetoric of murder and killing that the anti-abortion movement has been so persistent in promoting. People, I think, very much had this idea that there were a certain kind of women who had abortions and killed their babies, and a different kind of women who got pregnant and went to term. Except they’re all the same women, just at different moments of their lives. But the people who sometimes need abortions are also the people who get pregnant or have the capacity for pregnancy. And they always need to be treated with dignity. They always need to have their rights respected. And it was through cases like Pamela Rae Stewart and Angela Carder that I became more committed to finding ways to ensure that connection was not broken. I was getting cases involving miscarriage and stillbirth.

Right. That were about criminalizing conduct.
I always push back on that, and here’s why. It’s not wrong. But it’s not the conduct really, that’s criminalized. It’s the pregnancy. It’s the status of being pregnant. There’s a 15 to 25 percent chance of miscarriage in every pregnancy. So from the moment you become pregnant, you’re endangering an unborn child. Some of these cases involved miscarriages and stillbirths in which women are arrested, charged with murder. And the claim is they caused the pregnancy loss by some drug that they took — cocaine, methamphetamine. The fact is that none of the criminalized drugs are abortifacients. None of them are good at causing pregnancy loss. If they were, I’d be shipping them to Texas.

There are people who are nominally pro-choice, who are comfortable at least theoretically with abortion, but would not be comfortable with that. For example, well, why are you doing drugs? Or even, why are you choosing to go against medical advice for how you would like to conduct your pregnancy or your birth? So you’re sort of forcing people to think more deeply about what it means to be quote unquote pro-choice.
We’re completely selective about what risks to fetal life we’re going to address and how we’re going to address them. So it is certainly much more politically advantageous to focus on the pregnant person than the environment and social circumstances that they live in. Their lack of access to adequate nutrition, their lack of access to adequate health care.

It was really shortly after the Stewart and Carter cases — so that was 1986, 1987 — that the avalanche of arrests, particularly targeting poor Black mothers accused of using the smokable form of cocaine, came raining down on those women. And so the pushback partly came from the fact that it involved drugs. Why would we defend somebody using drugs? Well, we were just defending people who were being human. Some of them had true addiction problems and could have really used the help. Some of them, and this is increasingly true, just falsely tested positive. Each of those cases involved racism, they involved sexism, they involved the war on drugs and the dehumanization of people for all, for being pregnant, for being Black, for using drugs. But in single issue politics, there’s a real fear that focusing on anything but just abortion could be hurtful.

What was your reaction when the Dobbs decision came down, overturning Roe v. Wade?
I reread Frederick Douglass’s speech after the Dred Scott decision came down. It was the Supreme Court decision that was supposed to resolve once and for all the issue of slavery by upholding slavery and keeping those who had been in bondage, always in bondage. And Frederick Douglass did not go into a state of despair. He did not stop with hopelessness. He gave a speech that talked about how the Supreme Court is not the last word on the freedom of Black people. And it is not the last word on the freedom of the people who get pregnant. And we will see this will not last, because you cannot deprive that many people of their humanity, their dignity, and their fundamental rights, and survive.

We’re almost a year out. What’s your read on where things stand now?
I’ve heard people say things have to get worse before they’ll get better. I think they’re gonna keep getting way worse as we see all of the consequences, including maternal deaths and infant deaths because of the loss of health care and the loss of health care based on science. When people talk about how it has to get worse before it gets better, I think we really have to work hard in figuring out what that “better” looks like. What is it that we really want? And is it a vision that includes everybody? The people who get pregnant, the people who need abortions, people who need trans care — it has to include everybody. I am optimistic enough to believe that people do not like having their rights taken away. And so I do think we will eventually win back our rights. But I hope it is about much more than abortion, that it’s about the underlying question: Are the people who get pregnant a subordinate second class of persons? Or are they full and equal citizens? And how do we make sure their health care is provided and respected and thought of as no different than the health care the people who can’t get pregnant are entitled to?

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