‘Witch Test’ Sending Women to Prison for Murder

As a criminal defense attorney, I was alarmed to read this recent investigative report by ProPublica about the lung float test being used to prosecute and imprison women for murder after experiencing stillbirths or pregnancy complications.

This so-called “test” has no scientific basis whatsoever. It dates back to the 1600s when suspected witches were thrown into the water to see if they would float (a sign of guilt) or sink (a sign of innocence). Modern medical examiners have now revived this unscientific practice to determine if a baby was born alive or stillborn. If the removed lungs float in water, they claim it proves the baby breathed and was born alive. If the lungs sink, they say it indicates a stillborn birth.

This technique is as unreliable as dunking women in water to test for witchcraft. There are many valid reasons why air can enter a stillborn infant’s lungs other than breathing. The turbulent trip down the birth canal can introduce air. Attempted CPR compressions on a stillborn can inflate the lungs. Gases from decomposition can also cause inflation. Plus, normal handling of a stillborn can allow air entry.

Multiple forensic pathologists and medical examiners across the country reject the use of this test, comparing it to debunked techniques like bite mark analysis. The American Academy of Forensic Sciences strongly cautions against using unproven methods not validated by rigorous scientific standards. The lung float test clearly fails to meet these evidentiary standards.

Yet prosecutors continue introducing this witch test as key proof to charge and imprison women for murder after pregnancy loss. At least 11 women since 2013 have faced criminal prosecution based on this unreliable evidence. Nine of them are currently incarcerated, serving hard time for “crimes” that may well have been tragic stillbirths.

Expectant mothers already face higher risks of pregnancy complications, stillbirths, and maternal mortality if they are low-income or women of color. This test disproportionately targets and punishes marginalized women who may react with shock or denial to an unexpected stillbirth. Grieving mothers suffer horrific trauma during these crisis deliveries. Their behavior should not be criminalized.

Reliable scientific indicators of a live birth simply don’t exist for unattended deliveries with no witnesses. The best forensic pathologists admit they cannot conclusively distinguish between stillbirth and infanticide under these circumstances. When the evidence remains inconclusive, prosecution has no place. Juries cannot be swayed by an unreliable test floating on superstition rather than facts. No grieving mother should lose her freedom based on medieval pseudo-science.