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Experts say manslaughter conviction of Oklahoma woman for miscarriage sets a dangerous precedent

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In March 2020, 19-year-old Brittney Poolaw suffered a miscarriage at her Lawton home. She sought medical attention at the local hospital.

But a few days later, she was arrested and charged with first degree manslaughter. She spent more than a year in jail because she couldn’t pay the $20,000 bond.

Then this month, she was convicted in a one-day trial and sentenced to four years in prison. Prosecutors argued her methamphetamine use contributed to the miscarriage, even though a medical examiner testified that they weren't sure whether that was a contributing factor or not because the miscarriage happened around 17 weeks.

According to Oklahoma law, murder and manslaughter charges don't apply to miscarriages before 20 weeks old.

Jennifer Holland, an associate professor of history at the University of Oklahoma, has studied the history of pregnancy and abortion.

"I believe that Oklahoma law in the case would only apply after viability. And this seems, to me, not to fall within the realm of Oklahoma law," said Holland.

The state’s law says child neglect that contributes to death isn’t possible before 20 weeks, the point when a child could survive outside the womb. But Holland said that since the 1970s and 80s, prosecutors have charged women with crimes when they miscarry because of the struggle with drug addiction.

"The methamphetamine crisis has led to a massive proliferation of laws and prosecutions of women who are pregnant who use drugs," said Holland.

KOSU reached out to the District Attorney's office in Comanche County, but received no response to our questions about their prosecution of this case.

Michelle Oberman, the author of the book Her Body, Our Laws about abortion laws in El Salvador and Oklahoma, said Poolaw's case is like ones she's seen before.

"Is it a good idea to use the criminal law in response to problems just, say, associated with, substance abuse during pregnancy?" Oberman asked.

Women are being charged with these crimes around the world. Oberman has interviewed pregnant people in El Salavador who've suffered the loss of an unborn child, only to be sent to prison for their miscarriage. She's witnessed the effects these charges have on the woman.

"When she goes to the hospital and confesses her struggle, she's at risk of being arrested," said Oberman.

Oberman said that if women do experience obstetrical emergencies, prosecutions like Poolaw's make them not want to go to the hospital.

"What you're doing is actually discouraging people to avoid the healthcare system, to view the hospital as a zone of risk," said Oberman.

Poolaw is Indigenous. Women of color, like her, already have poor health outcomes in pregnancy and this may be a further deterrent from seeking care. The personhood laws meant to deter abortion also disproportionately affect women of color. They are twice as likely to be arrested for crimes after a miscarriage.

These cases are on the rise. The National Advocates for Pregnant Women say more than 2,000 women in the United States have been charged in similar cases, including 50 in Oklahoma since 2013.

"Even in many circumstances, it's a healthy birth, but because there is some alleged drug use during pregnancy women are being charged with felony child neglect," said Dana Sussman, NAPW's deputy executive director.

Oklahoma has several laws that restrict abortion on the books, including a personhood law, which gives the fetus and mother equivalent rights. Sussman said those laws diminish the rights of women carrying the child.

"The pregnant person has fully recognized, constitutional rights," said Sussman. "And if that principle is further diminished, or it's overturned, then there is really no limit to the viewpoint that fetal rights and fetal personhood recede the rights of the person carrying that fetus."

Poolaw could have faced a life sentence for the manslaughter charge. She was offered a plea deal for 16 years but opted to go to trial and was sentenced to four years in prison. She is now considering her appeal options.

Oberman said the length of the sentence speaks to the power that prosecutors have.

"When you gin up a prosecution like this, let's be clear: there's costs," said Oberman. "There's a cost to the state, costs that could be better spent on substance abuse treatment. It could be better spent on mental health care costs."

The argument surrounding abortion continues.

In December, the U.S. Supreme Court will hear a case from Mississippi challenging Roe v. Wade. Anti and pro-abortion groups, and women like Poolaw, are waiting to see what happens.

Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
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