Should a Mom Be Jailed for Her Own Stillbirth? – Kveller
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Should a Mom Be Jailed for Her Own Stillbirth?

As I enter my final few weeks of pregnancy, I sometimes worry about ordering a cup of coffee. Too often, the barista responds, “Decaf?” or a stranger within earshot wonders aloud whether I’m “allowed” to drink that.

It’s not just coffee. When I was pregnant with my daughter, a waitress balked at my husband and my order of labneh, and a co-worker expressed shock that I was eating sushi (never mind that I’m vegetarian, and the sushi in question involved avocados and cucumbers).

Though a private matter, pregnancy inevitably becomes a public concern. And the public feels free to comment on what pregnant women eat, on the size and shape of our bodies, on whether we should be carrying heavy bags, and more.

But my gripes about such comments are minor compared to the ordeal that Nina Buckhalter now faces in Mississippi.

In 2009, Buckhalter, then 29 years old, gave birth to a stillborn baby girl, whom she named Hayley Jade. Two months later, a grand jury indicted her for manslaughter, arguing that the methamphetamine detected in Buckhalter’s system caused the stillbirth. The Mississippi State Supreme Court heard arguments this April about whether the case can move forward, and is expected to issue a ruling soon.

Taking illegal drugs is never a good thing. And taking illegal drugs while pregnant is most likely worse than eating raw fish. That said, this case could set a very dangerous precedent for women in Mississippi and in any other states that decide to follow this lead.

A manslaughter conviction in this case would open the door for women to be prosecuted for any adverse behaviors that may harm the fetus. According to the amicus brief filed by the American Medical Association, The American College of Obstetricians and Gynecology, and about 10 other major medical bodies, causes of stillbirth may include “age, race, and socioeconomic factors, hypertension, diabetes, thrombophilia, infections, maternal smoking, paternal smoking, paternal workplace exposure to ionizing radiation, exposure to pain medications, and poverty.”

Imagine if we began prosecuting women whose children are stillborn for smoking, having diabetes (perhaps even for unhealthy eating), conceiving after age 35, taking pain medication, or being poor. Or their husbands and boyfriends for smoking or working under dangerous conditions. The AMA also points out that a conviction might discourage other pregnant women who use drugs from seeking prenatal care.

It’s not even clear that Buckhalter’s drug use caused the stillbirth. The AMA brief explained, “The medical community agrees that the causes of stillbirth are not fully understood. . . In spite of myths and misconceptions, science has failed to prove that in utero exposure to illegal drugs, such as methamphetamine, causes unique harms distinguishable from those caused by other uncontrollable factors.”

Jewish law recognizes that a pregnancy can go wrong for many reasons, and in many ways. Thus, Judaism considers life to begin at the moment of birth. In a classic case, first mentioned in Exodus 21:22, two people who are fighting with each other and accidentally hurt a woman standing nearby, causing her to miscarry, pay monetary damages, but are not held liable for manslaughter. There is much legal argument about how to estimate these damages, but the payment seems to be meant to cover pain, suffering, and other intangibles, and not to account for a loss of life.

In Judaism law, the life of living, breathing full human beings is paramount. This is why virtually all interpretations of Jewish law permit abortion, at the very least in cases in which a woman’s life is in danger. Jewish law also values medical care, and allows for the violation of most commandments when a person’s life is at stake. For those of us who hold human life in the highest regard, whether inspired by Judaism or other traditions, it’s scary to think that a woman in Mississippi might forego necessary medical care, or undergo a back alley abortion out of fear that she will be prosecuted for endangering her fetus.

That’s why T’ruah: The Rabbinic Call for Human Rights, of which I serve as Executive Director, joined an amicus brief opposing the charges of manslaughter. In this case, we believe that convicting Nina Buckhalter would set a precedent that threatens the health, welfare, and freedom of all pregnant women in Mississippi and possibly beyond.

As for Buckhalter–in the past four years, she has undergone drug treatment, graduated with honors from community college, and given birth to a healthy baby. Putting her in prison would only deprive her child of a mother, and strip her of the chance to use her hard-earned education to contribute to society.

If we as a community are really concerned about drug use during pregnancy, or at any other time, we should treat drug abuse as the public health crisis that it is, rather than criminalize women for harm that they may or may not do to their fetuses. And if we actually care about women and children, we’ll stop judging pregnant women for their choices, and provide the medical and social supports that women like Buckhalter and their children desperately need.

As for me, I think I could use a soy latte. Regular, please.

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