Abstract

Excerpted From: Elizabeth Kukura, The Relationship Between Demedicalization and Criminalization in Reproductive Health, 34 Health Matrix: Journal of Law-Medicine 217 (2024) (204 Footnotes) (Full Document Requested )

On March 21, 2023, Temecia Jackson, a Black woman living in suburban Dallas, gave birth to baby Mila at home with a midwife licensed by the state of Texas. When the family's pediatrician diagnosed the baby with jaundice at a scheduled “newborn checkup” on March 24, Temecia and her husband Rodney opted for phototherapy treatment at home under their midwife's guidance, rather than having the baby admitted to the hospital. After learning of this decision, their pediatrician, Dr. Anand Bhatt, called and texted the parents several times, including once at 11 p.m., to warn the Jacksons that he would report them to the Department of Family and Protective Services (DFPS) if they did not comply with his recommendation for hospital-based treatment. According to Temecia, Dr. Bhatt had initially counseled them about options for either hospital-based or in-home treatment for jaundice, though his “tone changed” subsequently and he later discouraged the idea of in-home treatment with continuing care by their midwife. Although the Jacksons had begun phototherapy at home, Dr. Bhatt followed through on his threat, reporting them to DFPS on March 25, noting “their distrust for medical care and guidance.”

Five hours after the pediatrician's late-night text, a DFPS investigator and two police officers arrived at the family's home. Rodney Jackson refused to speak with them, but they returned an hour later, around 5:00 a.m., with a fire truck and ambulance to transport Mila to the hospital. Rodney Jackson again refused to open the door. Five days later, on March 30, members of the Dallas County Constable's office came to the Jacksons' house with a warrant, waited for Rodney to return home, and arrested him; while he was detained, the constables took his keys, entered the house, and removed Mila from Temecia's care while she was alone with the baby. Mila was placed in foster care, and a hearing was scheduled for April 6--then postponed until April 20. The Jacksons were allowed a few supervised visits with the baby (one two-hour visit each week at the DFPS office in the presence of police officers), though, according to press reports, their attempts to deliver breast milk or otherwise care for Mila were unsuccessful. The Jacksons were particularly fearful about the loss of their baby because the legal documents used to remove Mila named the wrong people, and they had not yet filed for Mila's birth certificate because she had been born at home.

Dr. Bhatt, who had cared for the Jacksons' two older children for twelve years, wrote in his letter to DFPS that the “[p]arents are very loving and they care dearly about their baby.” Nevertheless, he initiated an investigation that resulted in the removal of the newborn from her family at a critical time for bonding, breastfeeding, and postpartum adjustment. News accounts reported that upon learning about the 5:00 a.m. police visit put in motion by his letter, Dr. Bhatt communicated to the family he was ending the patient relationship. After three weeks, DFPS recommended dismissal of the case, and the Jacksons were reunited with Mila. A local organization, the Afiya Center, advocated for the Jacksons during the period when they were fighting to have Mila returned to the family.

This essay explores the relationship between demedicalization and criminalization in the context of reproductive health care, focusing on childbirth and using the Jacksons' story to illustrate how childbearing people are punished (or threatened with punishment) when perceived as challenging the authority of mainstream medicine. The demedicalization-criminalization dynamic in childbirth is an example of the broader phenomenon of using criminal law to address social problems (or perceived problems). As the birth justice movement and consumer advocacy aimed at improving maternity care services continue to grow, spurring interest in community birth, midwifery care, doula support, and other alternatives to the dominant, medicalized approach to birth in the United States, we can expect to see continued, and perhaps increased, reliance on criminalization to discipline pregnant people who resist medicalized childbirth. Punitive action is likely to target vulnerable populations disproportionately, especially Black and Indigenous women, poor women, and pregnant people who are young, disabled, queer, or gender non-conforming.

Furthermore, the demedicalization-criminalization dynamic is not unidimensional. Criminalization of pregnant people due to health care decision-making or pregnancy outcomes can reinforce the desire among pregnant people to seek out demedicalized approaches to childbirth, which invites further criminalization to preserve the status quo and then drives people further away from mainstream medicine. Whether the rejection of mainstream medical care leads to positive or negative health outcomes may depend on context. For someone who receives inferior, even harmful, care in a hospital due to bias and discrimination, pursuing an alternative form of care may be health-promoting. For someone who develops a life-threatening complication requiring medical intervention, the deterrence function of criminalization is likely to be health-harming. Either way, it is important to understand that by criminalizing the decision to seek care outside mainstream medicine, medical and law enforcement authorities who distrust the pursuit of demedicalized alternatives may achieve an outcome at odds with their underlying goal.

Part II returns to the Jackson family to analyze their story through the lenses of demedicalization and criminalization, identifying how each played a role in shaping Temecia's (and Mila's) birth and postpartum experiences. Although we do not know all the details that influenced this particular family's childbearing decisions, their story provides a helpful starting point for understanding the complex factors driving efforts by individuals, organizations, and social movements to demedicalize childbirth by different means. The Jackson family's story also illustrates how families experience child removal as punishment, highlighting how family policing is a form of criminalization that allows health care providers to assert control over patient decision-making and causes serious harm to families subjected to severe, and often arbitrary, invasions of their private lives. Race and class are central to family policing as a mechanism of social control, both as a threat used to coerce pregnant people to accept unwanted medical interventions and, more generally, as a way to shift responsibility to poor people for society's failure to provide adequate support for childrearing.

Next, Part III contextualizes the Jackson family's attempt to demedicalize birth with a brief introduction to existing scholarship on medicalization and demedicalization. The essay shows how analysis of these concepts has deepened over time to account for the complexities of medicalizing and demedicalizing forces that may occur simultaneously, and which are better understood as evolving processes rather than static descriptive categories. It then applies these theoretical insights to the example of childbirth to highlight some of the fault lines in public discourse about midwifery in the perinatal health care system and in U.S. childbirth culture more generally.

Part IV then weaves together the discussions of demedicalization and criminalization in the context of reproductive health care. It highlights the mutually reinforcing quality of the demedicalization of childbirth and the criminalization of pregnant people's decision-making. Specifically, when punitive state action causes trauma and other harms, some people will be more likely to seek demedicalized options for care in future pregnancies and when managing their health more generally. While receiving care outside of mainstream medicine may be empowering and health-promoting for some people, others will miss out on necessary medical attention due to their distrust of medical providers and institutions. Finally, Part V concludes by arguing that people who care about reproductive rights and reproductive justice must pay close attention to the demedicalization-criminalization dynamic in reproductive health. In particular, increased reliance on medication abortion in a post-Dobbs legal environment, where self-managing abortion with pills outside of a medical setting may be the best--or only--option available to many, will make more people with the capacity for pregnancy vulnerable to criminalization for their reproductive choices and pregnancy outcomes.

[. . .]

ond the Jackson family's experience, it is important to understand what the relationship between demedicalization and subsequent criminalization reflects about the current landscape of reproductive health and reproductive rights. In the aftermath of Dobbs, as state restrictions limit reproductive autonomy and public awareness of reproductive control grows, this is a critical time to see--and challenge--the use of criminal law to constrain how people exercise autonomy in managing their reproductive health, whether in pursuit of parenthood or when looking to avoid having a child. While the surveillance and criminalization of certain conduct during pregnancy are not new phenomena, post-Dobbs legal changes mean that many more people are vulnerable to criminalization related to their reproductive health.

In the United States, abortion has been medicalized and demedicalized to varying degrees throughout history, as changes in law, social norms, and the professional interests of doctors influenced where abortion care was provided, on what basis women could access abortion, and t the rhetoric employed to describe acceptable use of abortion to manage reproduction. As Halfmann notes, the medicalization and demedicalization of abortion throughout history sometimes occurred simultaneously. For example, in Roe v. Wade, the Supreme Court articulated a model for legal abortion with physicians playing a central role in abortion decision-making--a reflection of increased medicalization of abortion. At the same time, in Roe's parallel case Doe v. Bolton, the Supreme Court struck down Georgia's requirement that abortions be performed solely in hospitals with the approval of a hospital abortion committee, thus clearing the way for freestanding clinics to become the dominant site where people obtain abortion care--a example of the demedicalization of abortion in certain respects.

Ever since Dobbs gave states the green light to pass criminal prohibitions on abortion, attention has focused on medication abortion. Medication abortion enables access to care even where state law makes it illegal for physicians to perform abortions, while also increasing the challenge faced by abortion-hostile states that want to prevent people from accessing pills online and through the mail. The availability of abortion pills--through telehealth, from online pharmacies that deliver by mail, and through informal channels, as well as through traditional prescription and provision at clinics--means that many more pregnant people can terminate a pregnancy outside of medical spaces and without the involvement (or with minimal involvement) by licensed health care providers. To the extent that medication abortion enables self-managed abortion (SMA), it represents a form of demedicalization in reproductive health care. SMA is threatening because it “positions women as persons with the knowledge and authority to make decisions about their own bodies, sexuality, and reproduction, which continues to be a contested claim even in contexts where abortion is legal.” To enforce an abortion prohibition under these circumstances, the state must extend the reach of the criminal law into people's lives--not just into their reproductive decision-making but also into private spaces of the home, where medication abortions often take place.

Those who have historically experienced the brunt of pregnancy policing are people who use drugs during pregnancy, who disagree with their doctors and decline treatment, or who transgress norms of “good mothering,” whether due to being poor or relying on public benefits, race or ethnicity, their youth, or their mental health status. Since Dobbs, many people have learned that seeking abortion in certain jurisdictions could result in prosecution under new (or newly enforceable) criminal abortion laws. Certainly, some jurisdictions had used existing laws to criminalize pregnancy outcomes before Dobbs, even in the absence of explicit criminal prohibitions on terminating a pregnancy; but enforcement of post-Dobbs abortion bans require more extensive pregnancy policing for states that want to ensure people are not circumventing the law by accessing abortion medication online, by mail, or through other informal channels. The demedicalizing of abortion makes other categories of people vulnerable to criminalization, as pregnant people who lose a wanted pregnancy through miscarriage or stillbirth may be investigated and prosecuted because someone in a position of medical or legal authority suspects them of having taken medication to induce an abortion.

The expanding reliance on criminalization in response to the demedicalization of reproductive health care in both the abortion and childbirth contexts threatens a widening circle of people with punishment for their reproductive decision-making. In the post-Dobbs era, people who care about reproductive rights and justice must resist the demedicalization-criminalization dynamic in order to protect and promote reproductive autonomy for all.

Associate Professor of Law, Drexel University Thomas R. Kline School of Law. LLM, Temple Law School; J.D., NYU School of Law; MSc, London School of Economics; B.A., Yale University.