Behind Bars for Being Pregnant and HIV-Positive

by Margo Kaplan
CHLP Supervising Human Rights Attorney

Last month, a U.S. district court judge chose to sentence an HIV-positive pregnant woman to more than double the recommended time for the sole stated purpose of keeping her in prison until she delivered. Being pregnant and having HIV are not crimes, and using imprisonment to coerce pregnant women to make the medical care choices the state thinks is best is an outrageous abuse of the system. 

by Margo Kaplan
CHLP Supervising Human Rights Attorney

In May, 2009, U.S. District Judge John Woodcock sentenced Q.L.T,who was about five months pregnant, for the crime of having fake immigration documents. While both the federal prosecutor and defense attorney urged the judge to sentence Ms. T to 114 days, which would allow her to leave prison with time served, Judge Woodcock doubled the recommended sentence and exceeded federal sentencing guideline recommendations for the sole purpose of keeping Ms. T in prison until she gave birth. Judge Woodcock’s sole justification for the extended sentence is that Ms. T is HIV-positive. The judge felt that—despite the fact that Ms. T had arranged for care outside the prison—keeping her in prison would best ensure that she would take anti-retroviral medication to reduce the chances of transmitting HIV to her child in utero. In issuing this decision, Judge Woodcock has created disturbing precedent that could allow the state to keep people in jail based solely on the fact that they have HIV or are pregnant.

To understand how misled Judge Woodcock’s decision was, it is useful to understand a little about how HIV can be transmitted from mother to child, or “vertically.” HIV can be transmitted during pregnancy, childbirth, or breastfeeding. While all babies born to women living with HIV will have HIV antibodies when they are born, 75% of those babies will “serorevert” and will not develop HIV infection. Thus, without any medical intervention, the rate of transmission is, on average, 25%. Taking antiretroviral drugs during pregnancy and birth or opting to have a cesarean section can reduce the rate of transmission to less than 2%. The best course of treatment to ensure the health of the mother and her child always depends on the individual woman’s medical history and circumstances, and should be a decision she makes after consulting with her physician.

Judge Woodcock’s decision ignores the complex factors involved in a pregnant woman’s medical treatment decisions—as though being HIV positive makes one incapable of reasonable decision-making—and glibly equates being HIV-positive and pregnant with committing a crime. When reading the sentence, he makes clear that his sole reason for keeping Ms. T in prison was that she was HIV-positive and pregnant, and that, had she been pregnant and not HIV-positive, he would release her with time served. He reasons that he could keep Ms. T in jail “to protect the public from [her] further crimes.”

Judge Woodcock bends himself into bizarre logical contortions to justify his decision. He states, “I don’t think the transfer of HIV to an unborn child is technically a crime under the law, but it is as direct and as likely as an ongoing assault.” Frustrated with what the law actually forbids, Judge Woodcock invents a new category of actions that, while not “technically” crimes “under the law,” he still has the authority to punish with imprisonment. However, if judges could hold people in prison for any “direct” and “likely” action they found morally reprehensible, they would have unlimited discretion. This is precisely what the rule of law is intended to prevent.

While some states do, indeed, criminalize HIV exposure, Judge Woodcock does more than this—he imprisons a woman for the mere possibility that she might transmit HIV in the future. His reasoning essentially criminalizes being HIV-positive and allows the state to jail anyone with HIV simply because they have HIV and are capable of transmitting it to another. It classifies anyone with HIV as a threat to society who can be incarcerated at the whim of the state to protect public health. As Regan Hofmann eloquently explained in her May blog, criminalizing HIV transmission contributes to the stigmatization of HIV and actually harms prevention efforts. The imprisonment of those with HIV based on the mere fact that they might transmit it to others is even more abhorrent as a matter of law and policy.

Some might be tempted to think that the judge in fact is helping Ms. T by ensuring she at least has access to medications. This argument might have some merit if Ms. T were asking the judge to keep her in jail because she was concerned about deportation or her ability to access care. But the fact is—and Judge Woodcock recognized—Ms. T did not want to remain in prison, much less give birth in prison. Her attorney stressed that Ms. T had arranged for medical treatment outside of prison at a facility—unlike the prison system—specifically equipped to meet her medical needs.

Whatever Judge Woodcock’s protective intentions, using imprisonment to coerce pregnant women to make the medical care choices we think best is an outrageous abuse of the system. By keeping her in prison because he felt it would be best for the fetus, Judge Woodcock was unable to see and treat Ms. T as a competent adult with the ability and the right to make her own medical decisions. Instead, he reduced her to a fetal container—an obstacle to providing the care he wanted for the child she was carrying. Not once in the transcript of the sentencing proceeding does Judge Woodcock consider Ms. T’s own medical care or her health interests. She is guilty of being HIV positive, while her fetus is, in his view, “a wholly innocent person.”

Judge Woodcock’s decision perpetuates the myth that people with HIV are somehow “other”—more reprehensible, less responsible, and deserving of whatever state intervention helps protect the “innocent” remainder of society. It also furthers the view that pregnant women lose their autonomy and their rights by virtue of their pregnancy, and that pregnancy should enable the state to detain a woman if the state disagrees with the care she is choosing for her own body. While Ms. T may have had counterfeit immigration documents, having HIV and being pregnant does not make her any less “innocent” or any more deserving of punishment.