By Lauren Breslow
On October 5, 2021, a 20-year-old Native American woman, Brittney Poolaw, was convicted by an Oklahoma jury of manslaughter for the death of her 17-week-old, non-viable fetus.
Her conviction stands as a modern recapitulation of the historical violations that women, especially Black and Brown women, have endured regarding their fertility.
Ms. Poolaw was only 19 years old when she miscarried and sought health care at Comanche County Memorial Hospital. She shared with medical personnel crucial information about her medical condition, namely that she had taken illegal substances, including methamphetamine.
The state — via the prosecutor’s office — used Ms. Poolaw’s trust of the medical establishment against her. In seeking health care, Ms. Poolaw landed in Oklahoma District Attorney General Craig Ladd’s crossfire. DA Ladd announced in 2017 that his office would prosecute pregnant women who used drugs for neglect and abuse of their unborn fetus. What is particularly striking about the DA’s decision to prosecute Ms. Poolaw is that she miscarried at 17 weeks (the fetus was actually dated between 15-17 weeks), at least three weeks prior to when Oklahoma begins to restrict abortion access.
In other words, Ms. Poolaw could not have been prosecuted for aborting her fetus; yet she sat in jail for one and half years waiting trial for killing her fetus and is now subject to a four-year sentence for murder in the first degree.
Ms. Poolaw’s prosecution is yet another instance of a long, unfortunate tradition in American history in which the state claims a controlling interest in what happens between a fertile woman and her physician.
In the first half of the 1900s, the medical establishment adopted a eugenics policy, which was explicitly encouraged by state statute. The Supreme Court bolstered this campaign with its ruling in Buck v. Bell, a 1927 decision that has yet to be explicitly overturned. In the decision, the Court upheld a Virginia state statute permitting doctors to sterilize individuals deemed to be feeble-minded, especially if such feeble-mindedness was deemed hereditary. This paved the way for an onslaught of non-consensual sterilizations of both men and women.
While the Court took pains to highlight Virginia’s careful due process protections for those recommended for sterilization, historians have since shown that Carrie Buck, the plaintiff in the case, received no such fair hearing. To the contrary, her community had conspired against her — she had been raped at age 17 and institutionalized by her rapist’s family to hide his misdeed. And evidence shows that she was not feeble-minded; nor were her family members that were marshalled out to prove the heritability of her trumped-up condition.
Ms. Buck had the deep misfortune to have this conspiracy unfold as Virginia’s eugenic fervor — and the doctors leading Virginia’s eugenics movement — were looking for a test case. This matter of happenstance, of being caught in the wrong place at the wrong time, echoes almost one hundred years later in Ms. Poolaw’s case, with Ms. Poolaw swept up into Oklahoma’s law-and-order fervor to stop drug use during pregnancy.
The Buck ruling unleased a eugenic torrent on women’s fertility, with over 30 American states adopting sterilization statutes, and by the 1950s, the majority of people subject to sterilization were women and women of color. The famed civil rights activist Fannie Lou Hamer coined the term Mississippi Appendectomy to encapsulate what happened to her and so many other Black women, especially in Southern States. Ms. Hamer went to her doctor for treatment of uterine tumor, and without her consent, her doctor sterilized her during her uterine surgery.
This happened thousands of times over, with estimates of over 60,000 sterilizations in the United States. Women were tricked, coaxed, and threatened into receiving sterilizations, with one infamous case upholding a doctor’s policy to threaten women’s eligibility for benefits unless they agreed to be sterilized. Native American women were particularly targeted by sterilization campaigns, with a U.S. Government audit acknowledging in 1976 that thousands of Native American women were sterilized — so many that some researchers estimate almost one quarter of Native American women of childbearing age were sterilized. Women in Puerto Rico were also disproportionately subject to eugenic sterilization campaigns, with a third of Puerto Rican women of child-bearing age sterilized between the 1930s and the 1970s. California also holds a grotesque history of sterilizing thousands, especially immigrant women, against their will and without their knowledge. In California, female prisoners were sterilized without consent through 2013.
Over the 1970s, most states repealed their sterilization laws, with Oregon being the last state to commit a forced sterilization in 1981 and repeal its sterilization law in 1983. While Oregon and other states have issued apologies, only California, North Carolina, and Virginia have enacted reparation statutes. Not exactly a national reckoning for what happened to so many women. And even today, forced sterilizations are reportedly still occurring, for example, among immigrant women at a U.S. Immigration and Customs Enforcement detention center in Georgia.
This history of controlling women’s fertility sheds a frightening pallor over the disparities in pregnant women’s health, with the United States ranking last in maternal mortality across industrialized nations. The U.S. Centers for Disease Control and Prevention (CDC) report that Non-Hispanic Black women die at a rate of 41.7 deaths per 100,000 live births compared to 13.4 deaths per 100,000 non-Hispanic White women. Native Americans face 28.3 deaths per 100,000 live births. Infant mortality rates are similarly inequitable.
These disparities seem to birth themselves, figuratively, from a long history of abuse and mistrust in the health care that women and women of color receive. And this history impacts the choices that women make now about their care, with the CDC reporting that pregnant women are significantly less likely than the rest of the population to accept a COVID-19 vaccination, despite growing evidence that COVID-19 is dangerous for pregnant women. Black pregnant women are among the lowest adopters of the COVID-19 vaccination.
And, to this day, courts, legislatures, and prosecutors continue to perpetuate abuse and mistrust among pregnant people by interfering in their reproductive decision-making.
This year, the Sixth Circuit decided that it was not an undue burden for women to conceal their thoughts and intentions regarding potential abortions from their doctors. In Preterm-Cleveland v. McCloud, the Circuit considered Ohio’s prohibition of abortions where the rationale is to terminate a Down Syndrome pregnancy. The Court reasoned that women seeking abortions could conceal their rationale from health care providers to overcome the restriction and obtain abortions. The Court asks providers and their patients, therefore, to undertake a game of smoke and mirrors, as most health care providers will know the likely reason for the abortion request, given that it will come on the heels of a genetic screening and consult.
Texas has taken further aim at women’s reproductive autonomy with its new abortion restriction law, S.B. 8. This law empowers lay citizens to sue providers who offer women abortions after six weeks of pregnancy (which may be as early as two weeks after a missed menstrual cycle). Now every person is in the room with a pregnant woman and her doctor.
These interlopers have no place in the exam room — not in Ohio, not in Texas, not in Virginia, not in Oklahoma, not in any U.S. state or territory. What was not appropriate for Carrie Buck in 1927 remains inappropriate for Brittney Poolaw in 2021. A woman should have control over her fertility and reproductive choices. And she should have the protections — from an otherwise controlling state — that she needs to communicate honestly with her physicians.
If we respect and appreciate the racism and sexism that has defined maternal health and fertility, it is easier to see why states need to protect women and women of color, and not prosecute them over their fertility choices. Ms. Poolaw’s choice to share pertinent medical data with her providers in the midst of her miscarriage should have resulted in medical treatment; her case should have been just that — medical, not criminal.
