Claire Guthrie Gastañaga
By Claire Guthrie Gastañaga
Gastañaga is executive director of the ACLU of Virginia.
Across the country, there is a growing effort to criminalize decisions women make about their own bodies. Increasingly, prosecutors are bringing cases that penalize women who have been pregnant or who experience a complication during pregnancy.
In Virginia, prosecutors have brought child abuse charges against pregnant women for drug use, convicted a woman of unlawful disposal of human remains after a miscarriage (the attorney general later issued an opinion saying this prosecution was illegal and the governor pardoned the woman), and sought to convict a woman of performing an illegal abortion on herself, which is a class 4 felony.
The abortion charge (recently dismissed by the Chesterfield County Commonwealth’s Attorney’s office) was brought in March 2017 by then Commonwealth’s Attorney Billy Davenport who retired effective July 1 of this year. Davenport chose to charge a woman with “producing abortion or miscarriage” on herself after fetal remains were found buried in her backyard.
Much ado was made of the allegations including articles shaming her that included her name, address and arrest mugshot. The woman, meanwhile, has maintained she did not commit any crime. Rather, she had experienced a stillbirth at home and buried the remains in her own backyard.
The criminal abortion charge filed more than a year ago was dismissed at the prosecutor’s request at a 10-minute hearing on Sept. 13. The representative of the Chesterfield Commonwealth’s Attorney’s office stated in open court that, in light of new evidence, the state’s theory of the case was not viable, and said they would no longer pursue the charges.
The new evidence included expert reports provided by the defense which demonstrate no crime had been committed. It is good that the case has now been dismissed. It is not okay, however, that a prosecutor in Virginia used his power and discretion to file felony charges against this women in the first place, or that it remains unclear whether this case would be refiled by a future Commonwealth’s attorney.
No one sheds their fundamental rights when they become pregnant. It is crucial that prosecutors and the public continue to recognize all of a pregnant person’s fundamental rights – to bodily autonomy, to be free from arrest or detention because of life choices they make, to access necessary healthcare, and to make decisions about how to deal with the hardships in their own lives.
Nonetheless, National Advocates for Pregnant Women documented more than 400 cases between 1973 and 2005 involving arrests, detention, and forced medical procedures on pregnant women, and has documented 800 more since then. These cases infantilize women, assuming they are incapable of making decisions for themselves. They treat pregnant people as second-class citizens with no right to decide what happens to their own bodies. Even worse, one study shows that women who face these types of prosecutions are disproportionately women of color and come from low-income backgrounds.
This needs to stop. In addition to jeopardizing the liberty rights of pregnant individuals, prosecuting pregnancy-related activity can also have terrible consequences for the outcome of the pregnancy. Criminalizing pregnancy can lead to vulnerable people avoiding necessary healthcare during pregnancy for fear of prosecution or limiting open communication with their health care providers for fear of reprisal. Arrest and detention of pregnant people may also limit access to the healthcare they need to maintain a healthy pregnancy. Public policy should encourage all pregnant people to obtain the care they need, not create obstacles that discourage healthy outcomes.
In both of the recent Virginia abortion-related cases, and in the increasing number of cases that criminalize conduct by people just because they are pregnant, prosecutors have pursued cases for ideological reasons, wasting limited time and resources building cases against people who posed no threat to public safety.
The public must demand better of our elected Commonwealth’s attorneys and engage in electing people to these important positions who will exercise their discretion to do justice, not pursue a political agenda. Putting pressure on Commonwealth’s attorneys about these issues should start now. Voters in Chesterfield County will choose a new top prosecutor in a special election this November, and we suggest they ask both candidates who are running to commit not to refile the abortion charges they just dismissed and never to bring a charge like this again.