This Article draws a straight line from wrongful convictions of women in the past to criminal charges based on pregnancy and parenting behaviors today. Faulty forensic evidence and biased evidence relying on sex-based stereotypes have, in combination, been used to convict innocent women, particularly in situations where an accident or health event was misconstrued to be a criminal act. Seventy-four percent of exonerated women were convicted when no crime occurred. Similarly, in criminalizing pregnancy behaviors, police, medical personnel, or prosecutors erroneously label a noncriminal event, such as a miscarriage or stillbirth, as criminal. Criminal charges are being brought against new mothers who test positive for their own legally prescribed medicine—for morphine that was given to them by the hospital for pain during labor—or for a controlled substance when the child is born healthy and unharmed.
This Article conceptualizes “reproductive wrongful convictions,” and exposes how marginalized women are being labeled as “unfit” and becoming particularly vulnerable to these charges. Historically and today, the “unfit” label applies to women with disabilities as well as women from racially and economically subordinated communities. Through interviews with women wrongly convicted of harming their children, this Article includes the experiential knowledge of participants in the medical and legal systems, relying on different epistemic backgrounds to conceptualize transforming the law. In addition, the Supreme Court’s recent case, Andrew v. White, demands a greater reckoning of the due process violation that occurs when courts admit character evidence that overwhelmingly relies on sex-based stereotypes and justifies incarceration of the defendant, whether she has committed the charged offense or not.
