News & Politics

The Court Sentences You To Give Birth in Jail

Judges treat pregnant women like children.

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 than in the United States.) 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 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 after their children were stillborn.

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