By Fleming Terrell, Staff Attorney ACLU of Texas

Yesterday the Texas Court of Criminal Appeals heard oral argument in a case challenging the discriminatory punishment and incarceration of a pregnant woman, Amber Lovill, who violated the terms of her probation when she tested positive for drugs. Attorneys for both sides agreed that they would not have found themselves before Texas' highest court for criminal appeals had a probation officer not commented on Ms. Lovill's pregnancy in explaining why the State jailed her in 2007. But the fact is, the probation officer did identify Ms. Lovill's pregnancy as the reason she was treated more harshly than other probationers who relapse in their struggle to overcome substance abuse. Although probation officers said they typically work with probationers who relapse through less restrictive approaches such as increased visits and drug testing, they were unwilling to work with Ms. Lovill because she was pregnant. In the State's own words, because she was pregnant she could not "maintain the willpower necessary to overcome a drug addiction." So they locked her up in Nueces County Jail for the remainder of her pregnancy.

At argument, Ms. Lovill's attorney emphasized to the Court of Criminal Appeals that when the State takes action for discriminatory purposes, such as a probationer's status or capacity as a pregnant woman, it violates the Constitution and Texas' Equal Rights Amendment. Certainly, women who violate the law should not receive a free pass because they are pregnant. But, as addressed in the ACLU's amicus brief, just as an employer cannot fire a pregnant employee based on unfounded stereotypes about her capacity to work, the state of Texas cannot impose a harsher punishment on Ms. Lovill because of its archaic and unfounded view that pregnant women lack the capacity to address their drug use.

No less disturbing was the State's argument that its harsher treatment of Ms. Lovill was necessary in order to protect fetal health. Assistant District Attorney Douglas K. Norman told the court that it is the State's job to protect the health of mothers and newborns. This is a laudable goal, but when the State's idea of protecting a pregnant woman's health is to unfairly use the criminal justice system to throw her in jail, it becomes a dangerous idea instead. The State's view rests on a fundamental misconception that jailing a pregnant woman benefits maternal and fetal health. This view has been so thoroughly debunked that fifty-two medical, public health, and child welfare experts and advocates filed an amicus brief on Ms. Lovill's behalf explaining the serious harms of using punishment and incarceration to address drug use during pregnancy. The State's position in Ms. Lovill's case today should ring alarm bells for all Texas women. Hopefully the Court of Criminal Appeals is listening.

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