Rennie Gibbs’s daughter, Samiya, was a month premature when she simultaneously entered the world and left it, never taking a breath. 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.”
In early 2007, a Lowndes County grand jury indicted Gibbs, a 16-year-old black teen, for “depraved heart murder” — defined under Mississippi law as an act “eminently dangerous to others…regardless of human life.” By smoking crack during her pregnancy, the indictment said, Gibbs had “unlawfully, willfully, and feloniously” caused the death of her baby. The maximum sentence: life in prison.
Seven years and much legal wrangling later, Gibbs could finally go on trial this spring — part of a wave of “fetal harm” cases across the country in recent years that pit the rights of the mother against what lawmakers, health care workers, prosecutors, judges, jurors, and others view as the rights of the unborn child.
This wave of cases, as we’ve covered before, has already started working the principal of fetal personhood into the legal system. It’s affecting women like Bei Bei Shuai, who was charged with feticide after attempting suicide, and Melissa Rowland, who refused a c-section and faced murder charges after delivering a stillborn. But, above all, it’s affecting women — primarily those who, like Gibbs, are young, poor, and Black — who used illegal drugs during their pregnancies.
As Lynn Paltrow of National Advocates for Pregnant Women tells ProPublica, “decisions to arrest and charge women often have political and moral overtones and are mostly based on unproved or discredited notions about the effects of prenatal drug exposure.” Indeed, concerns about cocaine exposure in utero — popularized during widespread panic about “crack babies” in the ’80s and ’90s — have been “wildly overstated,” as Vero has written about before. The evidence linking cocaine use directly to stillbirth is usually dubious at best — it certainly was in Gibb’s case — which wouldn’t typically be enough in a court of law. Paltrow explains, ”If a pregnant, drug-using woman were a corporation, her case wouldn’t even get to trial because the rules of evidence require that there be science to prove causation.” But then, we live in a culture in which many seem to think individual rights end at the moment a pregnancy begins.
Which is really what’s at the heart of all these cases. This isn’t really about protecting fetuses. If it was, we’d treat drug use during pregnancy as the public health issue it is and recognize that throwing women in jail for harming their fetuses is just about the least effective way to address it. As the American College of Obstetrics and Gynecology wrote in 2011, “Incarceration or the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse” and “drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus.”
No, this is about asserting a state interest in protecting “fetal personhood” at the direct cost of actual people’s personhood. As I wrote before, “there’s simply no way to give fertilized eggs full constitutional rights without taking some away from pregnant women.”
Maya Dusenbery is an Executive Director of Feministing.