Pregnancy Justice is a non-partisan legal advocacy organization dedicated to the welfare of pregnant people and their families. Our testimony draws on over 20 years of experience on cases in which state actors arrested and prosecuted pregnant or postpartum women for experiencing pregnancy losses or engaging in acts or omissions that posed some imagined risk of harm to a fetus.
Colorado is not exempt from disturbing national trends. For example, in 2016, a mother was arrested from the hospital where she had just given birth. She was charged with child abuse resulting in injury, based on her pregnancy and alleged use of a controlled substance.
Pregnancy Justice has documented more than 1,600 instances since 1973 in which women were arrested, prosecuted, convicted, detained, or forced to undergo medical interventions because state actors assumed their rights could be denied in the interest of fetal protection. [1]
These prosecutions are brought despite the fact that pregnancy losses are dishearteningly common, [2] and can rarely—if ever—be attributed to anything that a pregnant woman did or did not do. These prosecutions are brought based on the theory that once a person becomes pregnant, her otherwise legal acts or omissions may be viewed as crimes.
Passage of HB 1279 would ensure that no pregnant or postpartum person would be subjected to the trauma of a criminal investigation or other rights violation on top of the trauma of experiencing a pregnancy loss or for alleged actions taken or not taken during pregnancy that posed some imagined risk of harm to the fetus. HB 1279 also represents good public policy, consistent with the recommendations of every major public health and medical group that unanimously oppose punitive responses to pregnancy, finding that such responses are harmful to the health of women and children, and pose “serious threats to people’s health and the health system itself … [by] erod[ing] trust in the medical system, making people less likely to seek help when they need it.” [3]
We strongly support HB 1279 and urge the Colorado Legislature to pass it to prevent the insidious prosecution of people in relation to pregnancy. HB 1279 will guard against traumatizing criminal investigations and family separation, prioritizes maternal and infant health, and will ensure that the rapidly expanding prosecutorial playbook that targets pregnant people for criminalization will have no place in Colorado.
Footnotes:
1. Pregnancy Justice, Arrests and Deprivations of Liberty of Pregnant Women, 1973-2020 (Sept. 2021), bit.ly/arrests1973to2020; Paltrow & 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 Politics, Pol. & L. 299, 323 (2013).
2. Dugas, Carla & Slane, Valori H, Miscarriage, (Jan. 29, 2021), https://www.ncbi.nlm.nih.gov/books/NBK532992/; Hoyert, D. L., Ph.D., & Gregory, E. C., M.P.H, Division of Vital Statistics. Cause of Fetal Death: Data From the Fetal Death Report, 2014, (Oct. 30, 2016), https://www.cdc.gov/nchs/data/nvsr/nvsr65/nvsr65_07.pdf.
3. ACOG, Opposition to Criminalization of Individuals During Pregnancy and Postpartum Period (2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/oppositioncriminalization-of-individuals-pregnancy-and-postpartum-period. For similar reasons, ACOG has also specifically opposed criminal penalties for people who have abortions outside of approved medical settings. See ACOG, Decriminalization of Self-Induced Abortion (2017), https://www.acog.org/clinical-information/policy-and-positionstatements/position-statements/2017/decriminalization-of-self-induced-abortion.