Can You Charge a Woman With Murder for a Stillbirth?

ProPublica has a fascinating, sad, complicated story up about a young woman named Rennie Gibbs, who was 16 in 2007, when she delivered a stillborn infant one month premature:

To experts who later examined the medical record, the stillborn infant’s most likely cause of death was also the most obvious: the umbilical cord wrapped around her neck. But within days of Samiya’s delivery in November 2006, Steven Hayne, Mississippi’s de facto medical examiner at the time, came to a different conclusion. Autopsy tests had turned up traces of a cocaine byproduct in Samiya’s blood, and Hayne declared her death a homicide, caused by “cocaine toxicity.”

There are too many pieces here to summarize well (one important one is that Hayne, the medical examiner, has performed up to 1,800 autopsies each year, and four murder convictions based on his evidence have been overturned), but it seems clear that these fetal harm laws are still operating in an area that’s very gray.

An Indiana woman who attempted suicide while pregnant spent a year in jail before murder charges were dropped last year; an Iowa woman was arrested and jailed after falling down the stairs and suffering a miscarriage; a New Jersey woman who refused to sign a preauthorization for a cesarean section didn’t end up needing the operation, yet was charged with child endangerment and lost custody of her baby. But the vast majority of cases have involved women suspected of using illegal drugs. Those women have been disproportionately young, low-income and African American.

In this case, the birth defect linked to cocaine use was not a factor in Samiya Gibbs’ birth. The director of the National Advocates for Pregnant Women states here that “women are typically convicted based on evidence that would be demolished by lawyers with the time and resources to effectively refute it in court — lawyers, say, for pharmaceutical companies whose drugs are challenged in court as being unsafe.” More at ProPublica.