Brittany Poolaw has already spent 18 months in jail. Earlier this month, she was convicted of manslaughter and sentenced to four years in prison.

Her crime?

Having a miscarriage.

It's all fucked

Do the facts support sending Ms. Poolaw to prison? No, no they do not.

But does the law support Ms. Poolaw's criminal conviction? Also no.


Before we begin, a quick fact: between 10 and 15 percent of all pregnancies end in miscarriage.

Okay, now we can continue.

In January 2020, Brittney Poolaw, an indigenous Oklahoma woman, was 19 years old. She had been around 17 weeks pregnant when she suffered a miscarriage.

Rather than treat her like the young woman going through a traumatic event that she was, the hospital reported her to the authorities. By May, she was in jail.

Ms. Poolaw has been incarcerated basically ever since she miscarried. She was transferred from the hospital to jail. Her bond was set at $20,000, which she couldn't afford, so she has already been in jail for a year and a half for the crime of being poor. In the midst of a pandemic that has ravaged local jails and prisons, killing thousands.

It's unclear whether Ms. Poolaw had even decided to continue her pregnancy when she miscarried. She was one of the 53 percent of Oklahoma women who live in a county with no abortion providers — and state law requires pregnant people to go to two different appointments, at least 72 hours apart, to have an abortion. The costs of travel, taking off work, and the procedure itself make abortion access all but impossible for many poor and lowe-middle-class people to access.

At 17 weeks gestation, Ms. Poolaw could still legally obtain an abortion in Oklahoma. And the state's manslaughter and murder laws don't apply to miscarriages. But last year, the state supreme court okayed child neglect charges for a pregnant woman who used drugs after fetal viability. So, although Ms. Poolaw's fetus was nonviable, here we are.

Autopsies are rare and expensive. And Ms. Poolaw's fetus was undeniably not viable. But Comanche & Cotton County District Attorney Fred Smith apparently decided there was no better use of taxpayer dollars than performing an autopsy on a nonviable fetus and criminally prosecuting a woman for miscarrying.

The fetal autopsy found congenital abnormalities, placental abruption, and chorioamnionitis, any of which could have caused a miscarriage. The autopsy also found amphetamines in the fetus's system.

There is no evidence that amphetamines cause miscarriages or stillbirths. Every single major medical and public health organization, including the American Medical Association, American College of Obstetricians and Gynecologists, and American Academy of Pediatrics, opposes the criminalization of miscarriage for pregnant people struggling with substance use and addiction. But let's just do it and be legends, am I right, DA Fred Smith?

The medical examiner's report doesn't even blame drug use for Ms. Poolaw's miscarriage. And at trial, even the state's experts admitted on the stand that methamphetamine might not have been the reason Poolaw miscarried.

"No expert at trial stated that her drug use caused the miscarriage," says Dana Sussman, deputy executive director for the National Advocates for Pregnant Women. "It's a confounding case on many levels."

Nonetheless, after a trial that lasted a single day, jurors in rural Comanche County took under three hours to convict the young, Native American woman of manslaughter.

Brittney Poolaw is not alone

For years, people have been skeptical and called me an alarmist when I told them that (1) Roe is in danger; and (2) criminalizing abortion also results in the criminalization of pregnancy. Well, guess what? Roe is about to be overturned — and we're already sending women to prison for miscarrying.

Persecuting women for miscarrying is apparently something prosecutors in Oklahoma do for funsies all the time. National Advocates for Pregnant Women notes that "Ms. Poolaw's case is just one example of the troubling trend we are documenting in Oklahoma that replaces compassion and respect with criminal prosecution."

In the last several years, NAPW has found that "Oklahoma prosecutors, especially in Comanche and Kay Counties but also in Craig, Garfield, Jackson, Pontotoc, Payne, Rogers, and Tulsa counties have been using the State's felony child neglect law to police pregnant women and to seek severe penalties for those who experience pregnancy losses."

Oklahoma is not alone. Since 2006, there have been at least 1,200 women prosecuted for miscarriages or stillbirths. In Alabama, Marshae Jones was charged with manslaughter for losing her baby after someone shot her five times in the stomach. Even in California, women have been charged with murder for losing pregnancies.

Criminalizing pregnancy is wrong. Full stop. But Ms. Poolaw's case is also an example of who prosecutors go after for miscarrying. Hint: It's not well-off white women.

When pregnancy is criminalized, it is poor women of color who go to prison. It's also poor women and women of color who die having unsafe abortions, and when hospitals refuse to induce miscarriages.

We've said it before and we'll say it again: We have a very small window, right now, to protect women and pregnant people. The criminalization of pregnancy is already happening — and it's going to exponentially increase after our fascist, woman-hating Supreme Court overturns Roe in Jackson Women's Health Organization v. Dobbs next summer.

When Roe is overturned these prosecutions will skyrocket. Some women will die. Others will spend the rest of their lives in prison.

We only have a few months to try to save our country and save lives. Congress needs to codify Roe. States need to codify Roe. And politicians — including judges — need to know that they are going to face very serious consequences if they say more than half the population has no right to bodily autonomy.

We really aren't all that far away from going full Handmaid's Tale. The time to act is now.

For many women, the nightmare can still be stopped. But Brittney Poolaw's nightmare has only just begun.

Happy 2021 Pregnancy & Infant Loss Awareness Month, y'all.

[ NAPW / KSWO / Reason / Oxygen ]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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