When Brittney Poolaw was in an Oklahoma hospital last year having a miscarriage, she admitted to using methamphetamine during her pregnancy.
Now, Poolaw, who was 19 at the time of her miscarriage, is in prison, sentenced to four years in October for manslaughter in the death of her fetus.
Some advocates and medical professionals believe the verdict is a mistake, warning that the rising trend of women being prosecuted for actions during pregnancy is often based on faulty science and disproportionately affects low-income women and women of color.
Lynn Paltrow, the founder and executive director of National Advocates for Pregnant Women, which is working to fight Poolaw’s case, said no person can guarantee a healthy birth.
“No one could say that anything she did or didn’t do was the cause of that miscarriage,” Paltrow said. “And yet the prosecutor proceeded, the judge allowed it to go on and the jury — within a very few number of hours — convicted her.”
Poolaw’s case is part of a larger shift toward the prosecution of women who have miscarriages or stillbirths — prosecutions that advocates say disproportionately target women of color and those with low income.
Since abortion was legalized in 1973, 1,600 U.S. women have been prosecuted for their actions during pregnancy, according to data from NAPW. Of those, 1,200 occurred in the past 15 years alone.
A 2013 report by NAPW and Fordham University looked at 413 arrests and forced interventions of pregnant women from 1973 to 2005. The analysis showed that 71 percent were considered low income and 59 percent were women of color, with 52 percent identifying as Black.
Black women were also significantly more likely to be charged with felonies than white women, with 85 percent of Black women receiving felony charges compared to 71 percent of white women.
“This whole idea that it’s even appropriate or thinkable to use the criminal law to respond to pregnancy and pregnancy outcomes was built on the backs of pregnant Black women who were portrayed during the height of the 'crack baby' myth as if they were uncaring, unloving parents,” Paltrow said.
A 2019 study found that from 2000 to 2015 the number of states enacting laws that criminalize drug use while pregnant more than doubled from 12 to 25. Several medical associations have condemned this kind of legislation, including the American Medical Association, which has called for “focusing on increasing access to evidence-based care rather than using punishment and the threat of family separation” for pregnant women and parents with a substance use disorder.
In Poolaw's case, an autopsy report obtained by NBC News showed that the 15- to 17-week-old fetus tested positive for methamphetamine and amphetamine. It also showed a congenital abnormality, a condition doctors say is often linked to a leading cause of miscarriage.
“Congenital malformations are very highly associated with genetic abnormalities, and genetic abnormalities are the No. 1 reason for miscarriages,” Dr. Sarah Bernstein, a maternal-fetal medicine specialist at Massachusetts General Hospital, said.
Pinpointing the exact cause of miscarriage is difficult, even in cases involving drug use, Bernstein said. What’s more, the rate of stillbirths for Native American women like Poolaw is almost 50 percent higher than that of white women.
There’s also a question of whether the fetus was a viable human being, given that the Supreme Court set the legal age of viability at around 28 weeks.
“There is not proof beyond a reasonable doubt that the crime she committed, possession of methamphetamine, caused the death of the fetus,” said former U.S. Attorney Joyce Vance, meaning the prosecution may be flawed.
The office of the Comanche County district attorney, which prosecuted the case, did not return a request for comment.
Legal experts and advocates also worry cases like Poolaw’s set a dangerous precedent.
Vance said she believes these types of prosecutions could place unreasonable expectations on women to maintain pregnancies.
“A man hits a vehicle with a woman who’s pregnant in it, and she miscarried the fetus as a result of the car accident,” Vance posited. “Do you charge him with murder?”
