Criminalization of infant mortality and pregnancy

Criminalization of infant mortality and pregnancy is the process by which unexplained infant deaths and pregnancy-related circumstances become grounds for criminal suspicion and punishment, especially for women already facing poverty and limited access to care. The cases of Marsha Colbey, Bridget Lee, and Victoria Banks reveal how unsupported forensic claims and assumptions about motherhood could propel women toward capital prosecution or imprisonment; Alabama’s drug-exposure law further extended criminal liability to conduct during pregnancy.

A climate of suspicion around infant death

Unexpected infant deaths occur against a background of persistently high infant mortality in the United States and inadequate access to prenatal and post-partum care for many poor women. The book argues that these conditions are too often displaced from view when a child dies: rather than treating the death as a medical and social tragedy requiring careful investigation, police and prosecutors may presume that a mother is guilty. Media narratives about mothers who kill their children helped intensify that suspicion, and the resulting public attention could distort judgments in individual cases.

The consequences were not limited to the cases that attracted national attention. The book describes a widening presumption of guilt falling particularly on poor women whose children died unexpectedly. It also situates these prosecutions within a wider pattern of criminalizing women for alleged failures of parenting. The underlying problem is not that the death of a child is treated as serious, but that accusation can substitute for reliable evidence and that poverty or a difficult pregnancy may be read as signs of culpability.

Marsha Colbey and the limits of forensic claims

A few weeks after delivering a stillborn son, Marsha Colbey was arrested and charged with capital murder. Before a formal examination of the infant’s body, state forensic pathologist Kathleen Enstice told an investigator that she believed the child had been born alive. Enstice later acknowledged that she had no basis for that opinion at that stage: without an autopsy and tests, she could not know whether the baby had been born alive. Her subsequent autopsy nevertheless concluded that the child had lived and asserted that he would have survived with medical attention.

At trial, Enstice described her live-birth conclusion as an inference from the absence of evidence that the baby was stillborn, rather than a finding supported by affirmative proof. The State’s own expert, obstetrician and gynecologist Dennis McNally, testified that Colbey’s pregnancy carried a high risk of unexplained fetal death because of her age and lack of prenatal care. For the defense, Werner Spitz, whose medical treatise Enstice had relied on in her training, disputed that the circumstances justified declaring a live birth, much less a homicide. The conflict exposed how a medical conclusion could be presented as criminal certainty even when the evidence and the experts’ own limits did not support that certainty.

The stakes were especially severe because Alabama included the murder of a child under fourteen among capital offenses. At the time described, all five women on Alabama’s death row had been condemned for the unexplained deaths of young children or for the deaths of abusive spouses or boyfriends. The book also notes that most women on death row nationwide were awaiting execution for family crimes involving allegations of child abuse or domestic violence. Colbey’s prosecution thus appears not as an isolated dispute over an autopsy, but as part of a pattern in which accusations arising from intimate family tragedies could expose women to the harshest penalties.

Bridget Lee and Victoria Banks: different routes to correction

Bridget Lee, a mother of two and church pianist, gave birth to a stillborn baby after concealing her pregnancy. The circumstances of the pregnancy and the fact that she did not tell her husband about the stillbirth aroused suspicion. The pathologist who conducted the autopsy concluded that the baby had been born alive and suffocated. Months after Lee was charged with capital murder, six other pathologists examined the body and unanimously concluded that neonatal pneumonia had caused the death. Their finding identified the death as a stillbirth with common features; the prosecutor dropped the charges, sparing Lee a capital trial and the possibility of a death sentence. In this case, a later, broader forensic examination corrected an initial conclusion that had helped drive the prosecution.

Victoria Banks’s case shows how a false accusation could persist even without credible evidence that an infant existed. Banks was an intellectually disabled Black woman. Police accused her of killing a newborn after she had allegedly told a deputy she was pregnant to avoid jail on an unrelated matter; months later, when she was seen without a child, they treated that absence as grounds for accusation. Banks and her sister, who was also charged, lacked adequate legal assistance. Facing capital murder charges and a possible death sentence, Banks accepted a twenty-year prison term through a guilty plea, although officials had not investigated her claim of innocence. Her release came only after the defense established that a tubal ligation performed five years before her arrest made it biologically impossible for her to have conceived or given birth. The case joined disability, race, vulnerability in the legal process, and lack of counsel in a conviction for the death of a child who had never existed.

Pregnancy treated as a criminal offense

The criminalization described in the book also reaches beyond investigations of infant death. In 2006, Alabama passed the Alabama child chemical endangerment statute, ostensibly to protect children in homes where they might encounter drugs, including methamphetamine laboratories or drug-trafficking operations. Its application broadened to mothers in poor, marginalized communities where drugs and addiction were prevalent, putting thousands at risk of prosecution.

The Alabama Supreme Court interpreted the statute’s terms for the environment and the child to include the womb and a fetus. Under that interpretation, evidence that a woman had used drugs at any point during pregnancy could expose her to criminal prosecution and decades in prison. The book reports that dozens of women were imprisoned under the law rather than receiving help. The shift is consequential: conduct during pregnancy, previously framed as a matter for health care and support, becomes a basis for punishment through a statute nominally directed at protecting children.

Unequal exposure and the meaning of the pattern

These cases show several distinct ways a woman could become the target of criminal law after an infant death: a disputed forensic inference in Colbey’s case, suspicion grounded in the circumstances surrounding Lee’s stillbirth, and an accusation against Banks despite the biological impossibility of the alleged birth. Their outcomes differed, but each depended on whether reliable evidence and meaningful defense assistance arrived in time. Lee’s charges were dropped after six pathologists reviewed the evidence; Banks was freed only after proof that she could not have given birth; Colbey faced a trial in which jurors expressed difficulty honoring the presumption of innocence and trust in a State investigator.

The pattern is therefore both evidentiary and social. Poor women’s limited access to health care can make unexplained deaths more likely and leave medical questions unresolved, while poverty, disability, or a stigmatized pregnancy can make accusation seem plausible to authorities and jurors. The book’s account challenges the idea that heightened punishment necessarily protects children or serves justice. When presumption replaces investigation and pregnancy becomes a basis for imprisonment, the criminal process can deepen the vulnerability it claims to address.