Failure Of The Brittney Poolaw Prosecution

A 21-year-old woman used meth while she was pregnant. That this was a monumentally bad thing to do isn’t the question. There’s no really good time to use meth, and people who use meth tend to make monumentally bad choices, a minor detail often ignored by those who want to legalize drugs. But using meth while pregnant is worse than just being your everyday meth user. Does that make it manslaughter?

Brittney Poolaw, 21, was sentenced to four years in prison after the jury returned a guilty verdict earlier this month, according to ABC affiliate KSWO. An autopsy on Poolaw’s unborn child revealed it had died at 17 weeks.

Prosecutors alleged that Poolaw caused her child to be stillborn due to intravenous methamphetamine use.

To the unlawyered eye, that second sentence stands out as a political act of prosecutors who take the position that an unborn fetus is a child, and thus can be the victim of murder or manslaughter. And, indeed, that was no  doubt at the core of this prosecution. But the lawyer eye looks to the elements of the crime rather than the politics of the case.

She admitted to using meth and marijuana and tested positive for both drugs, according to an affidavit.

But that she was a user, not a particularly difficult fact to prove, isn’t the only element at issue when there’s a death involved.

According to the Constitution, the medical examiner’s report listed the unborn child’s cause of death as intrauterine fetal demise due to maternal meth use. A toxicology report on the fetus showed the brain and liver had tested positive for meth and amphetamine.

But during her trial, an OBGYN that testified for the state said that methamphetamine use can have an effect on pregnancy, but may not have directly caused the death of the fetus, KSWO reported.

The medical examiner listed maternal meth use as a contributing factor, not the cause of death. And the trial testimony was even less clear as to the role it played in the death of the fetus. Miscarriages happen, sometimes as a result of something the pregnant woman did and sometimes they just happen.

This isn’t to say that it wasn’t a terrible thing for Poolaw to do, but that the element of the offense, that the defendant caused the death of the “victim,” whether living person or unborn fetus, was not met, and was clearly not proven beyond a reasonable doubt.

The case shouldn’t have gone to the jury. The jury shouldn’t have convicted. The conviction should have been tossed as legally insufficient. Instead, Poolaw was convicted and sentenced. And it has generated the outrage and backlash the prosecution no doubt expected, if not sought, by pursuing this case.

Poolaw’s case is an injustice, but it is also a warning. This is what happens when the law treats embryos and fetuses as people with rights that supersede the rights of those who carry them. And it offers a glimpse of the sort of prosecutions that could become common in a world in which Roe v. Wade is overturned, one we could be living in as soon as next year.


“The effort to add fetuses to the Constitution is increasingly an idea picked up by prosecutors to justify essentially removing the constitutional rights of pregnant people,” said Lynn Paltrow,* executive director of National Advocates for Pregnant Women, which has reached out to Poolaw and could represent her on appeal. What we’re seeing as Roe becomes more vulnerable, and claims of fetal rights increase, she added, is that “prosecutors feel liberated to use a variety of criminal laws to arrest women in relation to their pregnancies and pregnancy outcomes.”

Regardless of where you stand on the question of abortion and the rationale of Roe v. Wade making abortion a constitutional right, the prosecution of women for not pregnanting properly is very much at issue. The questions are no longer whether it’s acceptable for a woman to drink a glass of wine while pregnant or smoke a joint, or inject meth as in Poolaw’s case, but that any conduct that causes the death of a fetus is potential fodder for a manslaughter, or worse, prosecution. It can be argued that this wasn’t the point, but if a fetus is deemed a person, it is an inevitable consequence.

But there is another issue here that will get little light due to the far more controversial abortion aspect to the case. What about proof beyond a reasonable doubt? What about the defendant’s presumption of innocence, adding in at this juncture that Poolaw was held on $20,000 bail she couldn’t make for no cognizable reason. Was she going to run off to the Balkans or Switzerland with her billions to avoid prosecution? Was she a threat to society by seeking out pregnant women and injecting them with meth?

In the heat of political controversy, the more mundane issues at the core of every criminal prosecution get pushed aside as not sexy enough to make a stink about. The evidence here was legally insufficient to show that Poolaw’s use of meth was the cause of her miscarriage. It may be wildly irresponsible of her to have used meth. It may have been a contributing factor to lack of concern for maternal health of a pregnant woman. But to convict her of a crime requires the elements of the crime be met.

Homicide is manslaughter in the first degree in the following cases:

1. When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.

Did Poolaw “perpetrate” the death of a fetus? The evidence failed to prove that her use of meth was the direct cause of miscarriage. It’s not that the politics surrounding the prosecution of a woman for using drugs while pregnant don’t raise serious and important issues, but so too does that banal fact that Poolaw should have been acquitted because the evidence facially failed to prove that her conduct caused the miscarriage. Let’s not forget that the unsexy issues like burden of proof beyond a reasonable doubt are still part of criminal prosecutions, even when they raise more politically charged issues.

*Lynn Paltrow, like AFT President Randi Weingarten, was an undergraduate classmate of mine at Cornell ILR. For a very small class, we had some interesting people come out of it.

12 thoughts on “Failure Of The Brittney Poolaw Prosecution

  1. Paleo

    My wife and I were blessed with four daughters, all of whom we managed to turn into intelligent, thoughtful, empathetic people. But we also had two miscarriages. Having observed the effect a miscarriage has on a mother (and experienced the effect on a father), I find this prosecution unconscionable.

    Especially since – and I didn’t see it mentioned here but I’ve seen it in other places – the (whatever you want to call it) had a genetic defect that made the odds of it even making it to term 50/50 ish. That’s way more than enough reasonable doubt.

    The people involved in this deserve their own room in hell.

      1. Paleo

        No criticism intended.

        The defect just demonstrates that the prosecutors here are more interested in making a statement about drugs than they are treating a citizen fairly. She’s just someone else to sacrifice on the altar of the drug war.

  2. ETB

    From article block quote: “According to the Constitution, the medical examiner’s report listed the unborn child’s cause of death as intrauterine fetal demise due to maternal meth use.”

    From SHG: “The medical examiner listed maternal meth use as a contributing factor, not the cause of death.”

    So what did the ME’s report say — “the unborn child’s cause of death” or “contributing factor, not the cause of death”? (I did not see the phrase “contributing factor” in the linked article.)

    I sympathize with the view that this opens the door to prosecuting women for all sorts of behavior that might be a “contributing factor” to the death of a fetus. But, assuming the OBGYN was a defense witness, it seems the jury could have ignored the OBGYN’s testimony as not credible and relied instead on the evidence from the ME’s report and the toxicology report (assuming that evidence/testimony was admitted at trial)–i.e., that “the unborn child’s cause of death [w]as intrauterine fetal demise due to maternal meth use” and the positive tests for meth in the brain and liver. Happy to be corrected on standards of review in these matters.

    On another note, these stories of the human rights of a fetus always remind me of the rule against perpetuities and the “life in being” reference. My recollection from Property 101 was that “life in being” had traditionally included a life in utero. So it’s nothing new in the law to treat a fetus as a “life in being,” though I’m not sure what “adding fetuses to the Constitution” actually means.

    1. SHG Post author

      Contributing factor, which is why I wrote that, and the OBGYN was a prosecution witness. If you want more info or don’t trust what I’ve said, there’s a whole internet out there. Use it.

      1. ETB

        You’re right; and I completely skipped over the “for the state” phrase. Apologies. Rereading and using internet now.

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