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Constitutional Law

Oklahoma turns woman’s miscarriage into a miscarriage of justice

Two weeks ago Brittney Poolaw, a 20-year-old Native American woman from Comanche County in Oklahoma, was convicted of manslaughter in the first degree for experiencing a miscarriage at 17 weeks. Her trial lasted one day after which she was sentenced to 4 years in state prison.

In January of last year, Ms. Poolaw experienced a miscarriage and went to Comanche County Hospital for medical help. On March 17, 2020, she was charged with Manslaughter in the First Degree, arrested and incarcerated. The court set a $20,000 bond, an amount she could not afford. Ms. Poolaw has been incarcerated since her arrest over 18 months ago.

Oklahoma’s murder and manslaughter laws do not apply to miscarriages, which are pregnancy losses that occur before 20 weeks, a point in pregnancy before a fetus is viable (able to survive outside of the womb). And, even when applied to later losses, Oklahoma law prohibits prosecution of the “mother of the unborn child” unless she committed “a crime that caused the death of the unborn child.”

Oklahoma state law did not criminalize women for miscarriages, stillbirths or other fetal harm for which prosecutors felt the woman was at fault until September 2020, when the state Supreme Court ruled that, despite the state’s child neglect and homicide laws making no reference to fetuses, the laws nonetheless encompassed a viable fetus whose mother used drugs. Prosecutors in the Poolaw case, however, filed charges against her in March 2020, almost six months before the court’s ruling.

The prosecutor blamed the miscarriage on Ms. Poolaw’s alleged use of controlled substances. She admitted to hospital personnel that she had recently used methamphetamine and marijuana.

In March 2021, the medical examiner released the results of the autopsy on the fetus that Poolaw had miscarried, as reported by KSWO. Tests of the fetus’ then-still-developing liver and brain were positive for “methamphetamine, amphetamine and another drug,” but they also found evidence of “a congenital abnormality, placental abruption and chorioamnionitis.” (The medical examiner did not specifically name the congenital abnormality.)

The CDC defines congenital abnormalities as “a wide range of abnormalities of body structure or function,” some of which can be incompatible with fetal viability. Placental abruption is when the placenta separates from the uterine wall, which can be a cause of miscarriage or stillbirth and also kill the mother, according to the Mayo Clinic; it occurs in 1 in 100 pregnancies, according to the March of Dimes. One of its causes can be chorioamnionitis, an infection of the amniotic fluid and the two membranes of the amniotic sac, according to the Cleveland Clinic, that can, on its own, prove fatal to the mother and fetus. That is thought to stem from a mother’s urogenital tract infection; a 2010 study of chorioamnionitis in Clinics in Perinatology suggests that it occurs in up to 4 out of 100 pregnancies. The risks of its most serious complications are reduced by timely prenatal care.

Notably, Native American women have more than twice the maternal mortality rate of white women and are 150 percent more likely to have stillbirths — defined as fetuses over 20 weeks — than white women, according to the CDC. Most studies blame this on Native American women’s disproportionate poverty rate and their access to health care — including prenatal care — as well as systemic racism.

Abortion is nearly impossible for poor women to obtain in Oklahoma. The nonprofit Guttmacher Institute notes that 96% of counties in Oklahoma have no facilities that offer abortion services — Comanche County among them. State law requires a woman go to a provider twice, 72 hours apart, in order to obtain an abortion. By State law abortion is not covered by most private insurance plans without an extra rider, and it isn’t covered by Medicaid except in extremely limited circumstances.

What about medical proof that meth use in this case specifically and in general causes miscarriages? There is none and what’s worse there was none presented in Ms. Poolaw’s case. Though there are few studies of meth use during pregnancy, a 2016 study in the Journal of Addiction Medicine on meth use and pregnancy outcomes both noted that “No consistent teratological effects of in utero [methamphetamine] exposure on the developing human fetus have been identified” and that, in other studies of drug use during pregnancy “the effects of poverty, poor diet, and tobacco use … have been shown to be as harmful or more harmful than the drug use itself.” That study found that the most common effects of continuous meth use during pregnancy are low birth weight and premature birth (though the average birth date was still late in the third trimester).

At Poolaw’s one-day trial, as per KSWO, the jury was presented with evidence by prosecutors that there was no way to state with certainty that her drug use caused her miscarriage, and both the nurse and the medical examiner noted the fetal abnormalities seen at the autopsy.

This case shows the profound power and discretion that a District Attorney’s Office has in presenting cases and in choosing which cases to prosecute. Despite all the foregoing evidence that there were significant other causes of the miscarriage; despite the fact that the law appears not to cover fetuses of a gestational age lower than 20 weeks; despite the lack of any evidence that Ms. Pallow used meth and marijuana to cause a miscarriage; the prosecution was still able to get a conviction. And the court added insult to injury by sentencing Ms. Pallow to four years on incarceration.

So who made this decision? Meet Kyle Cabelka, Comanche County’s District Attorney. Kyle has been practicing a whopping EIGHT years. Cabelka has worked in the district attorney’s office since he was in law school at Oklahoma City University and began interning there as a licensed legal intern in May 2011. He became assistant district attorney in 2013 after receiving his Juris Doctor degree, and in 2016 he was promoted to first assistant. He has been acting district attorney since the retirement of former DA Fred Smith.

Comanche County DA Kyle Cabelka

Oklahoma has a history of a shaky and troublesome criminal justice system. I have previously written and discussed two examples of what I feel are wrongful convictions in Oklahoma: (1) Julius Jones, who was convicted of murder at age 19 and sentenced to death despite serious questions about his involvement and clear evidence of racial bias during the trial. (https://www.change.org/p/julius-jones-is-innocent-don-t-let-him-be-executed-by-the-state-of-oklahoma); and (2) Daniel Holtzclaw, a dedicated police officer accused and convicted of a series of sexual assaults with incorrect use of DNA , secret court proceedings, and completely unreliable and bizarre eyewitness testimony. (https://courtroomstrategy.com/2018/05/secret-proceedings-in-holtzclaw-case-raise-serious-issues/)

Ms. Pallow’s case exemplifies the systemic wrongs in the Oklahoma criminal justice system. It also exemplifies the danger women face if Roe v. Wade and its progeny are overturned – the danger is magnified for the poor and for women of color. We can expect to see similar prosecutions in anti-abortion States if SCOTUS overturns Roe.

Ms. Pallow’s case is simply shameful, nothing short of a tragedy. While her lawyers are planning an appeal, she will likely do all her four years in jail before the appeal is decided. How many Oklahoma women will decide NOT to seek medical attention when they miscarry out of fear of being arrested and charged? We may never know, but is a distinct possibility that some women may die in their homes out of that fear.

Shame on Cabelka and shame on Oklahoma.

Follow me on twitter @oscarmichelen

email me at omichelen@cuomollc.com

One reply on “Oklahoma turns woman’s miscarriage into a miscarriage of justice”

“ Oklahoma has a history of a shaky and troublesome criminal justice system.”

I suggest you replace “Oklahoma” with the “United States” where, like everything else (e.g., healthcare, education), you get all the justice you can afford.

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