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Terrifying Precedent: Woman to Be Tried for Murder for Giving Birth to Stillborn When She Was 16

Frightening gambit by pro-lifers to charge women for murder of stillborns due to 'fetal harm' is getting its day in court.

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But the concerns about cocaine have proven to be “wildly overstated,” said Deborah A. Frank, a pediatrician and researcher at Boston University School of Medicine who has participated in  numerous studies on the topic over the past two decades.  

“There is no consistent association between cocaine use during pregnancy and serious fetal harms, birth defects, or serious long-term physical or developmental impairments,” Frank wrote in an affidavit. “There is no convincing evidence that prenatal cocaine exposure is more strongly associated with fetal harm or developmental deficits than exposure to legal substances, like tobacco and alcohol, or many other factors.”

Frank and other researchers said they have been trying to set the record straight for years, but their arguments have rarely had a hearing in court, Paltrow said. Defense lawyers — often public defenders — don’t have the resources to hire experts to challenge prosecutors, and they may not even realize what the science actually says. It’s not unusual for women to plead guilty in such cases to avoid the risk of losing at trial — and getting a longer sentence. (Indeed, at least two mississippi women are believed to have pleaded guilty to manslaughter in the early 2000s, Gibbs’ lawyers said.)

“For a whole host of reasons, women should not be prosecuted for this sort of thing,” said Robert McDuff, one of Gibbs’ lawyers. “But if they are going to be, it needs to be based on scientific research and analysis that is more reliable than what we have now.”

Cory, Hayne’s lawyer who also does criminal defense work, acknowledged that, “In the criminal justice system, where the stakes are higher, the resources are not there to challenge the science. The judge, who is the gatekeeper, has to use the information they have. You get some crazy results in criminal cases. Science where there is no consensus gets admitted as if there was consensus.”

Gibbs’ attorneys are hopeful that the judge in their case may yet throw out the depraved-heart murder charge. Meanwhile, one thing the evidence does suggest: “Incarceration or the threat of incarceration have proved to be ineffective in reducing the incidence of alcohol or drug abuse,” the American College of Obstetrics and Gynecology’s Committee on Health Care for Underserved Women  wrote in 2011.

Moreover, the committee determined, pregnant women who fear the legal system avoid or emotionally disengage from prenatal care — the very thing that might help assure that they give birth to healthy babies.

“Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus,” it said.

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