\\jciprod01\productn\G\GWN\85-4\GWN403.txt unknown Seq: 1 30-AUG-17 8:48 Birthing Injustice: Pregnancy as a Status Offense Priscilla A. Ocen* ABSTRACT Over the last thirty years, pregnant women, particularly pregnant women of color, have increasingly come under the supervision and control of the criminal justice system. In July 2014, Tennessee became the first state in the country to pass a law criminalizing illegal drug use during pregnancy. Within weeks of its enactment, several women were arrested and subjected to prosecu- tion under the statute. In Alabama, the State Supreme Court upheld convic- tions of several women after finding that the state’s chemical endangerment statute applied to fetal life. The women convicted of these crimes joined hun- dreds of other pregnant women arrested for or convicted of similar offenses. Indeed, according to recent studies, over 1000 women have been convicted of crimes ranging from child endangerment to second-degree murder as a result of conduct during pregnancy. In almost all of these cases, the conduct of the women prosecuted would have been lawful or subject to a lesser penalty had it been committed by a nonpregnant person. This Article makes two central claims about the increasing number of criminal prosecutions of pregnant women. First, this Article contends that pregnant women are subject to a form of status offense. Status offenses, which criminalize the behavior of individuals within a select group of people that would be noncriminal if committed by persons outside of the group, have been utilized to regulate disfavored classes. Pregnant women, especially those who are poor and of color, are similarly constructed as a disfavored class and are therefore subject to unique forms of criminal regulation. Through the im- position of criminal liability, the state is enforcing gendered norms and polic- ing the line between “good” and “bad” motherhood. As such, criminalization and incarceration play a significant role in the regulation of the reproductive autonomy of women. Second, the Article asserts that the prosecution of preg- nancy-based status offenses violates the Eighth Amendment’s ban on cruel and unusual punishment. * Associate Professor of Law, Loyola Law School, Los Angeles. This Article benefited from presentations at The Ohio State University, Loyola Law School, Los Angeles, the Culp Junior Faculty Writing Workshop at Duke Law School, the African American Policy Forum’s Social Justice Writer’s Retreat, the Lutie Lytle Writing Workshop, and the Southern California Criminal Law Roundtable. I am indebted to Tendiye Achume, Amna Akbar, Khaled Beydoun, Paul Butler, Devon Carbado, Brietta Clark, Kimberle ´ Crenshaw, Jalondra Davis, Andrea Free- man, Kimberly West-Faulcon, Kaaryn Gustafson, Justin Hansford, Laurie Levenson, Shaun Os- sei-Owusu, J. Chinyere Oparah, Lynn Paltrow, Samuel Pillsbury, Lee Petherbridge, Camille Gear Rich, Addie Rolnick, Theodore Seto, Jocelyn Simonson, Verna Williams, and many others for their thoughtful feedback on earlier drafts of this Article. This Article also benefited from the research assistance of Caitlin Hunter of the Loyola Law School Library and was supported by the Loyola Faculty Research Fellowship Program. July 2017 Vol. 85 No. 4 1163 \\jciprod01\productn\G\GWN\85-4\GWN403.txt unknown Seq: 2 30-AUG-17 8:48 1164 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:1163 TABLE OF CONTENTS INTRODUCTION ................................................. 1165 R I. REGULATING PREGNANCY THROUGH THE CRIMINAL LAW ..................................................... 1173 R A. Prosecution of Women Who Are Pregnant and Use Drugs or Alcohol ................................... 1176 R B. Prosecution of Pregnant Women for “Behavioral Deviance” ........................................... 1178 R C. Pregnancy as a Sentencing Enhancement ............ 1180 R II. PREGNANCY EXCLUSION: STATUS, THE EIGHTH AMENDMENT, AND THE FAILURE TO PROTECT PREGNANT WOMEN ..................................... 1181 R A. Forms of Status ..................................... 1183 R 1. Status as Identity ............................... 1183 R 2. Status as Identity Performance ................. 1185 R 3. Status as Class-Based Enforcement ............. 1186 R 4. Status as Selective Enforcement ................ 1187 R B. Pregnancy, the Eighth Amendment, and Constitutional Definitions of Status.................. 1187 R III. CRIMINALIZING PERFORMATIVE STATUS AS A MECHANISM OF SOCIAL CONTROL ...................... 1190 R A. Economic Status .................................... 1191 R B. Racial Status ........................................ 1192 R C. Sexuality and Reproductive Status ................... 1195 R D. Biology and Disability Status ....................... 1196 R IV. CRIMINALIZING PREGNANCY AS A MEANS OF REGULATING DISFAVORED WOMEN .................... 1198 R A. Punishing Pregnant Women as a Means of Policing Gender Norms ...................................... 1199 R B. Risk Management Through Punishment and Removal of Bad Mothers from the Society .......... 1206 R C. Blaming Mothers for Pregnancy Outcomes and Broader Social Problems ............................ 1209 R V. RECLAIMING ROBINSON: THE CRIMINALIZATION OF PREGNANCY AS CRUEL AND UNUSUAL PUNISHMENT . 1214 R A. Performative Status and the Eighth Amendment..... 1215 R B. Performative Status and Substantive Due Process . 1217 R C. Criminalization of the Status of Pregnancy for Fetal Harm as Cruel and Unusual Punishment............ 1219 R CONCLUSION ................................................... 1222 R \\jciprod01\productn\G\GWN\85-4\GWN403.txt unknown Seq: 3 30-AUG-17 8:48 2017] BIRTHING INJUSTICE: PREGNANCY AS A STATUS OFFENSE 1165 The reality is we live in a culture that not only leaves no room for pregnant people and their children, it devalues us.1 INTRODUCTION An African-American woman named Cornelia Whitner gave birth to a son in a South Carolina county hospital.2 Whitner’s son was born “in good health” but tested positive for cocaine exposure.3 Whitner had long struggled with addiction, yet was not offered drug treatment; in fact, no drug treatment program in the State of South Carolina accepted pregnant women with drug problems.4 Instead, she was arrested and prosecuted for criminal child neglect.5 During her sentencing hearing, Whitner admitted her problem and asked for treatment, saying, “I need some help, Your Honor.”6 The judge was unmoved, stating, “I think I’ll just let her go to jail.”7 Whitner was sentenced to eight years of imprisonment8 and in a groundbreaking 1997 decision, the South Carolina Supreme Court affirmed the convic- tion, finding that the term “child” as used in the state’s child neglect statute extended to viable fetal life.9 While Whitner was one of the first women to be successfully pros- ecuted for a negative pregnancy outcome, she was not the last. Rather, the South Carolina decision affirming her conviction birthed a wave of criminal prosecutions of women for pregnancy outcomes. Over the last forty years, more than one thousand women, most of whom, like Whitner, are poor Black women, have been prosecuted for pregnancy- related offenses.10 1 Patrisse Cullors, The Future of Black Life, PATRISSE CULLORS (Dec. 31, 2015), http:// patrissecullors.com/2015/12/31/the-future-of-black-life/ (co-founder of Black Lives Matter link- ing the treatment of pregnant Black women and racial justice). 2 Jeanne Flavin & Lynn M. Paltrow, Punishing Pregnant Drug-Using Women: Defying Law, Medicine, and Common Sense, 29 J. ADDICTIVE DISEASES 231, 232 (2010). 3 Id. at 232–33. 4 Id. at 233. 5 Id. 6 Id. 7 Id. 8 Id. 9 See Whitner v. State, 492 S.E.2d 777, 778 (S.C. 1997). 10 See Lynn M. Paltrow & Jeanne Flavin, Arrests of and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health, 38 J. HEALTH POL. POL’Y & L. 299, 299, 309–10 (2013) (finding that over 400 women have been arrested or prosecuted for endangering fetal health); Nina Martin, Take a Valium, Lose Your Kid, Go to Jail, PROPUBLICA (Sept. 23, 2015), https://www.propublica.org/article/ when-the-womb-is-a-crime-scene (finding that nearly 500 women were charged with chemical endangerment as a result of drug use during pregnancy in Alabama alone); infra Part I. \\jciprod01\productn\G\GWN\85-4\GWN403.txt unknown Seq: 4 30-AUG-17 8:48 1166 THE GEORGE WASHINGTON LAW REVIEW [Vol. 85:1163 Indeed, women have been prosecuted for unexplained pregnancy loss, self-induced abortions, fetal loss after having sex, fetal loss fol- lowing a suicide attempt, and alcohol consumption while pregnant.11 In these cases, prosecutors often use criminal statutes unintended to reach fetal life or pregnant women to pursue charges ranging from child neglect to second-degree murder.12 In one of the starkest exam- ples of the expansion of existing law to reach pregnant women, the Supreme Court of Alabama found that the word “child” as used in the state’s child chemical endangerment law, which criminalizes individu- als who expose children to controlled substances, extended to fetal life at any point after conception.13 In July of 2014, Tennessee became the first jurisdiction in the country to enact a statute that explicitly criminalizes illegal drug use during pregnancy, although that statute has now expired.14 Federal judges have used sentencing guidelines to enhance the sentences of pregnant women alleged to have harmed fetal life when imposing a sentence for a non-pregnancy-related of- fense.15 In these cases, pregnancy