The Court Sentences You To Give Birth in Jail

Quinta Tuleh had been in a Maine county jail for 114 days when she went before federal Judge John Woodcock for sentencing in May. Tuleh, 28, traveled legally to the United States from her native Cameroon on a tourist visa in September but ran afoul of immigration authorities when she was caught in January with fake working papers. “I’m going to do things a little backwards here,” Woodcock told Tuleh at her sentencing, after she pleaded guilty. “Ordinarily, I would give you what is called a time-served sentence, and … your time in prison would effectively end today,” Woodcock said. Federal guidelines recommended a sentence of zero to six months.

But in jail, Tuleh had learned she was pregnant. She’d also found out she was infected with HIV. (The prevalence of the virus is eight times higher in Cameroon [2] than in the United States [3].) Woodcock went on: “I’m inclined to keep you in jail, given your medical condition and the medical condition for your child, to prevent your child from being born HIV positive.”

Antiretroviral medication, which Tuleh would have access to in jail, can drastically reduce the rate of mother-to-child transmission. And so Woodcock sentenced Tuleh to 238 days—almost eight months—to ensure she would give birth while she was in jail. In other words, the judge kept Tuleh locked up not for her crime, but for her status as pregnant and HIV-positive.

In states across the country—Maryland, New Mexico, Arizona, Kentucky—women in the last decade have been charged with crimes like reckless endangerment for using illegal drugs during their pregnancies. This year, a Florida woman was court-ordered to stay in the hospital against her will when she told her doctor that she could not follow his advice to stay on bed rest. Along with Tuleh’s case, these examples illustrate a disturbing tendency in law enforcement to sidestep pregnant women's rights in order to protect the fetuses they're carrying.

State laws passed over the last few decades have chipped away at the underpinnings for legal abortion by treating a fetus like a person in certain ways. In many states, for example, a driver who hits a pregnant woman and hurts or kills her fetus can be charged twice. But this is different than using the rights of a fetus rights against its mother, says Alexa Kolbi-Molinas, staff attorney for the ACLU’s Reproductive Freedom Project and one of Tuleh’s lawyers. In fact, dating back to Roe v. Wade in 1973, the courts have ruled pretty consistently that the Constitution protects a woman’s right to privacy and autonomy, whether or not she is pregnant. For example, in 2006, Maryland’s highest court overturned [4] the child endangerment convictions of two women who had used cocaine during their pregnancies; if prosecutors’ reasoning was followed to its logical extreme, the judges wrote, the law “could well be construed to include … a whole host of intentional and conceivably reckless activity … everything from becoming (or remaining) pregnant with knowledge that the child likely will have a genetic disorder … to the continued use of legal drugs that are contraindicated during pregnancy … to exercising too much or too little.”

There is one notable exception: South Carolina allows pregnant women to be criminally prosecuted for harming their fetuses. In 1992, Cornelia Whitner was sentenced to eight years in prison for smoking crack cocaine while she was pregnant. Since the state’s Supreme Court upheld that sentence in 1997, at least two South Carolina women who used drugs during pregnancy have been prosecuted for homicide [5] after their children were stillborn.

The more recent crop of cases demonstrates precisely the Maryland judges’ point: From arresting a woman who uses drugs during pregnancy, it’s a short leap to coercing a woman to make certain medical decisions. In the Florida case, a mother of two named Samantha Burton was 25 weeks pregnant when she arrived at Tallahassee Memorial Hospital this March with complications. Her doctor recommended bed rest. But when Burton made it clear that it simply might not be possible to take care of her children without leaving her bed for three months, lawyers from Tallahassee Memorial got a court order that essentially barred Burton from leaving. According to the amicus brief filed by the ACLU, the court order also required Burton “to submit, against her will, to any and all medical treatments, restrictions to bed rest, and other interventions, including cesarean section delivery”—whatever, in the words of the court, the unborn child’s attending physician deemed necessary to “preserve the life and health of Samantha Burton’s unborn child.” After just three days of enforced bed rest, an emergency cesarean section revealed that the fetus had died.

One reason these cases keep coming up, despite their clear illegality, is simple paternalism—overzealous prosecutors and judges think they know what’s best for a healthy pregnancy, as if that’s separate from what’s good for the pregnant woman. This is particularly troubling when judges assume that the woman must be confined or coerced in order to take good care of her child. Tuleh’s case turns out to illustrate exactly the opposite. Tuleh had already arranged with a case worker from a local AIDS service organization to receive housing, medical care from a high-risk obstetrical practice, an in-home support worker, and a public health nurse. Given the medical care in most jails, it’s a pretty good bet that this plan was better than Judge Woodcock’s. And the effect of prosecuting pregnant women who use drugs may be to deter other women with addictions from going to doctors’ offices and social service agencies—precisely the places they need to be. If going to the emergency room might get you arrested, would you go?

Misguided paternalism aside, the general problem Woodcock was responding to, in fact, is very real: a frayed social safety net for women and families. By the time law enforcement steps in, the social services designed to achieve the stated goal of these judges and prosecutors—healthy babies—have often failed. Tuleh was lucky to have a comprehensive treatment plan, but the vast majority of pregnant women and people with HIV don’t. Drug treatment slots are exceedingly limited for anyone [6] and the scarcity is even more acute [7] for women with children and pregnant women like Cornelia Whitner. Affordable child care is another limited resource. If Samantha Burton had had access to it, perhaps the idea of staying in bed with two small children at home would have seemed a little more feasible.

In the end, Judge Woodcock recognized “that the sentence turned out to be controversial,” as he told the Bangor Daily News [8]. “I can certainly understand how some have misinterpreted what the court intended to do in this case.” He released Tuleh from jail in June, just a few months shy of her due date. Tuleh is living in Maine, hoping to stay in the United States; her application for asylum is pending. She gave birth to a healthy baby boy in August.