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January 27, 2009
From National Advocates for Pregnant Women: a victory in the Texas v. Lovill case!
From National Advocates for Pregnant Women: a victory in the Texas v. Lovill case! (January 27, 2009) www.advocatesforpregnantwomen.org
In this case, Amber Lovill's probation was revoked because the State thought that sending her to jail would protect her fetus. Ms. Lovill had been on probation for forgery. A condition of probation was not using any illegal drugs. Ms. Lovill was in fact working hard to achieve abstinence, but experienced a relapse on the road to recovery. This relapse constituted a probation violation. Typically probation officers do not recommend putting a person in jail for this kind of probation violation. Rather, they typically seek to increase the number of drug screens that the probationer must submit to, or increase the amount of drug treatment that a person is required to attend. However, in Ms. Lovill's case, because she was pregnant, they recommended terminating her probation and locking her up. She was sent to Nueces County Jail, where she spent the duration of her pregnancy without appropriate prenatal care, drug treatment, or even sanitary facilities.
On appeal, Amber Lovill argued that the probation revocation constituted a form of selective prosecution based on the fact that she was pregnant, in violation of the 14th Amendment's prohibition against sex discrimination. NAPW and the ACLU of Texas filed an amicus brief in support of Ms. Lovill on behalf of numerous national and grassroots public health and advocacy organizations The Court of Appeals for the Thirteenth District of Texas agreed. For the first time in any case or written order that we are aware of, a court has squarely held that probation revocation and imprisonment because of pregnancy violates the 14th Amendment's prohibition on sex discrimination. The Court of Appeals carefully read the record and found extensive evidence of the fact that the probation officers were unwilling to consider any alternative to incarceration – because Ms. Lovill was pregnant. The Court of Appeals reversed the trial court's findings of fact, holding that:
In this case, the trial court was not free to disregard the overwhelming evidence presented at the hearing showing a discriminatory effect and purpose which allowed only a single conclusion. We hold that the fact finding is not supported by the record. The evidence shows (1) that Lovill was treated differently than others who violated the terms of their probation but were not pregnant, and (2) that her pregnancy was a motivating factor in the decision to prosecute.
The State argued that even if pregnancy was a factor in their decision, that would not constitute discrimination, explaining that "pregnancy causes added stress, anxiety and physical sickness to the expectant mother, which makes it difficult to comply with conditions of probation and to maintain the willpower necessary to overcome a drug addiction." The Court of Appeals squarely rejected this extraordinary claim, finding that it was based on "archaic and outdated views of pregnancy and of women." The court held that "even if the State acts with the intent of protecting a pregnant woman's health, it still may overstep the boundaries of the constitution when its actions result in discriminatory treatment based on pregnancy."
Ms. Lovill's counsel had hoped that the Court of Appeals would issue an order dismissing the entire prosecution. The Court of Appeals decision, however, only addresses whether Ms. Lovill established sex discrimination claim. This means that the case is not over. Nevertheless, Ms. Lovill's attorney is confident that he will be able to obtain a speedy and favorable resolution of her case.
NAPW and the ACLU congratulate Ms. Lovill for her persistence in her defense. We also congratulate Brian Miller, Ms. Lovill's counsel for his zealous representation and excellent defense work in this case.
Posted by lois at January 27, 2009 03:27 PM