Laurie and Debbie say:
No matter how low you believe the anti-abortion zealots can sink, you find a lower bottom. As ProPublica (invaluable as always!) reports, doctors all over America are using the “lung float test” to determine if babies born at home were stillborn or alive at birth.
[Dr. Christopher] Milroy, [a forensic pathologist who teaches at the University of Ottawa], has studied the test and its history and has found references to its use in the 17th century, when witch trials were still occurring. But by the late 1700s, its reliability was questioned by doctors and lawyers.
The analogy to witch trials is both chilling and inescapable: we know that witches were tested by attempting to drown them: if they drowned, they were innocent but dead, if they didn’t drown, they were witches and killed otherwise. That was not a test; it was a mechanism to control and/or eliminate women, and that’s exactly what’s happening here.
The test’s reliability has been continuously questioned ever since, and consistently found wanting. Physicians for Human Rights says:
Despite its being deemed for decades by dozens of authoritative pathologists and forensic experts as wholly unreliable and inaccurate, the test is still being used as a part of routine practice. Reflecting the clear consensus among forensic medical experts that the test is highly inaccurate and should not be used — certainly never as the only test when performing a postmortem assessment of a deceased neonate — prosecutors and judges must refrain from relying on these tests as determinative in prosecuting crimes related to conduct in pregnancy.
So the only conclusion is that the people using it care far more about punishing women than about finding the “truth,” and they certainly don’t care about the pain of delivering a baby stillborn at home, or the pain of delivering a baby who takes two breaths before it dies.
Of course, the test — which should never be applied at all, and certainly not in legal cases — is not applied equitably.
Yveka Pierre, senior litigation counsel with the reproductive justice nonprofit If/When/How, said the people who are prosecuted for their pregnancy outcomes are typically from marginalized communities. They’re Black, like [Latice] Fisher; or they’re brown, like Purvi Patel, an Indiana woman who was sent to prison for feticide after self-inducing an abortion, a charge that was later vacated; or they face financial hurdles, like Akers.
“Some losses are tragedies, depending on your identity, and some losses are crimes, depending on your identity.” Pierre said. “That is not how we say the law should work.”
Fisher’s story is in the ProPublica article. She was convicted of second-degree murder, and served only a short part of her term before a coalition of attorneys and abortion advocates came to her defense, got her out of jail, and convinced the Mississippi district attorney to vacate the original grand jury. A second grand jury failed to indict her. The “positive” outcome here is insufficient: she should never have been charged or convicted in the first place, and it shouldn’t take an army of activists to change her story.
No agency currently tracks how often the lung float test is used in criminal cases. But the 11 cases ProPublica identified are likely an undercount because some cases weren’t covered in news reports, and plea deals and acquittals often create less of a public record.
This story–and this test–represent only a tiny margin of the ways the system attacks women, especially women of color. At the same time, this is simultaneously such an unconscionable approach to stillbirth, and so viscerally intense, that separating it out for examination feels right. And if even 11, or even 5, women are spared criminal charges and potential jail time because this test is eliminated from use, that counts.
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