Legal Voice has long advocated against criminalizing women for their pregnancy outcomes. There is no place in the criminal legal system for policing and punishing pregnant people’s health conditions, such as substance use disorders, or what happens at an unattended birth. Legal Voice recently submitted an amicus brief with National Advocates for Pregnant Women, the ACLU of Washington, and the Birth Rights Bar Association on behalf of Melissa McMillen, a Washington woman who gave birth at home alone in her bathroom, and was convicted with felony murder when the baby did not survive.

Her attorneys are appealing this conviction, arguing that there is no proof that the baby was born alive or that, if it was, Melissa knew it was alive. The case presented serious factual gaps that the prosecution attempted to fill with gender-based stereotypes and insinuations as to motive drawn from Melissa’s feelings and actions during her pregnancy, including the fact that she considered having an abortion. If ambivalence during pregnancy shows criminal intent, then thousands of pregnant people are at risk of criminal punishment for subsequent problems in their pregnancies.

We are standing with Melissa, arguing that this decision dangerously makes failure to seek emergency assistance during or immediately after a birth a form of murder—even if the assistance seemed to be or was, in fact, futile. Furthermore, it subjects all pregnant people to potential criminal investigation for birth outcomes outside of their control. As outlined in our brief, the risk of confusing ignorance for wrongdoing and shock for cruelty is simply too great.

The circumstances of this case are no doubt tragic, but this conviction sets a dangerous precedent for Washington women.

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