Staff Writer Elisha Dura joined Columbia Law Professor Katherine Franke’s Gender Justice class to listen to guest speaker Dana Sussman talk about the work of Pregnancy Justice, an organization that defends the rights of people with the capacity for pregnancy.

On Tuesday, Professor Katherine Franke opened up her Gender Justice class at Columbia Law School to the public for the third out of six discussions included in her event series, The Front Lines of Gender Justice. This week’s class featured Dana Sussman, who shared the work done at Pregnancy Justice, an organization committed to defending and advancing the rights of people with the capacity for pregnancy. As the former Deputy Executive Director and current Acting Executive Director of Pregnancy Justice, Sussman discussed the growing criminalization of pregnancy that the organization sees daily. 

Pregnancy Justice was founded in 2001 as National Advocates for Pregnant Women in response to the increasing number of cases in the 1980s and 1990s of women being charged with crimes in connection to their pregnancies. The founder, Lynn Paltrow, witnessed prosecutors beginning to go after pregnant people for child abuse because of fetal exposure to drugs, and she recognized a new subset of criminal law developing that only applied to pregnant people. While most organizations were focused on maintaining the right to abortion, Pregnancy Justice filled a gap by standing up against the growing criminalization of pregnancy. 

Sussman described Pregnancy Justice’s current work as falling into four pillars: criminal defense, policy advocacy, research and documentation, and organization and education. While most of the workers identify as reproductive rights or justice lawyers, Sussman stated that cases often take on the patterns of criminal justice cases, and the organization’s lawyers provide support for the defendant in any way they can. 

Within its advocacy work, Pregnancy Justice focuses on standing up for the pregnant person rather than the doctors or clinics. The organization voices its opposition to bills that seek to criminalize pregnant people and efforts to establish fetal personhood in state statute. Sussman also explained that Pregnancy Justice uses its position to support progressive, protective legislation that supports the rights and protection of pregnant people, naming the example of the organization’s support of a recent California law clarifying that prosecutors cannot use California’s criminal laws to criminalize a pregnant person for their pregnancy.

Another large portion of Pregnancy Justice’s efforts include researching the criminalization of pregnancy nationally. The organization documents every case of pregnancy-related criminalization it can find in the country and publishes the research for academic, legal, and policy use. The data also direct Pregnancy Justice’s work, identifying geographic trends of cases to inform the organization of particular areas to focus efforts.

The fourth pillar of organization and education involves working across disciplines during cases to inform others of their work and advocacy. Sussman explained that most of Pregnancy Justice’s cases involve talking with medical examiners, doctors, child welfare workers, police, and more, and these are opportunities for shifting narratives around pregnancy and criminalization. Their educational efforts aim to reveal the connections between criminalization and reproductive justice to the workers they interact with and to explain the impact on all people with the capacity for pregnancy of losing abortion rights. “We continue to try and build those connections,” Sussman said, “and make sure that people understand that when you lose the right to abortion, it’s not just about the right to abortion… The rights of all pregnant people are at stake, not just those who seek abortion.”

After Sussman offered her description of Pregnancy Justice, Professor Franke opened the floor to questions from her students. One student referred to a recent paper of theirs in which they determined that pregnant people are held to higher reasonable person standards, a benchmark used in law that compares the defendant’s actions to those a “reasonable person” would have taken in the situation. The student claimed that these higher standards constrict pregnant people from any actions that could potentially harm the fetus and asked Sussman to speak on the instances she’s noticed this trend in her work. In response, Sussman expressed her continual surprise over how these situations reveal the lack of knowledge about pregnancy of many of the actors in the legal system. Those with power in these cases often fail to acknowledge the “lived experience of people who have given birth,” leading to the conclusion that greater knowledge—especially first-hand—of pregnancy by legal workers would help to destigmatize the pregnant people in these cases.

Sussman also emphasized this point during a later question in which a student asked whether she notices a difference in the behaviors of male versus female prosecutors during these cases. Sussman noted that generally, men occupy the prosecutor role more often, but she wouldn’t argue gender to be the defining difference in how prosecutors act. Again, she pointed out the experience of pregnancy and having the capability to become pregnant as more influential factors in a person’s views on cases of criminalization of pregnancy. Ignorance and misunderstanding of the reality of pregnancy are more dangerous to Pregnancy Justice’s work than the mere gender differences of prosecutors.

Amidst the heavy conversations about instances of pregnant people around the country impacted by the increasing criminalization of pregnancy, Sussman still offered words of encouragement for her listeners. Though she admitted that the road ahead would include much suffering before seeing improvements, Sussman expressed hope that reproductive justice advocates can work from within the system to shift power and obtain better federal abortion protections: “I do think that is a world we need to imagine, and I think we can get there.”

Columbia Law School via Bwarchives