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Legal experts from two universities will convene a group to study a dubious forensic test that has helped send some women to prison for murder though the women insisted they had stillbirths.
Last month, ProPublica reported on what’s known as the lung float test, which some medical examiners use to help determine whether a child was stillborn or was born alive and took a breath.
In response to the investigation, Aziza Ahmed, a professor at Boston University School of Law, and Daniel Medwed, professor of law and criminal justice at Northeastern University, announced they will lead the Floating Lung Test Research Study Group. The group, which will consist of lawyers and medical professionals, will be sponsored by the Boston University Program on Reproductive Justice and the Center for Public Interest Advocacy and Collaboration at Northeastern University School of Law.
“This is entirely due to the ProPublica report,” Ahmed said last week. “We realized it was time to take action.”
The aim of the group is to study the medical underpinnings of the lung float test, also referred to as the floating lung test, and determine whether it should be used in court. ProPublica’s reporting found that although several medical examiners said the test is unreliable, it had been used in at least 11 cases since 2013 in which women were charged criminally, and it has helped to put nine of those women behind bars. Some later had their charges dropped and were released.
The test, which has been around for centuries and remains essentially unchanged in spite of medical advances, is typically used in cases when births occurred outside of a hospital. Critics have likened the test to witch trials, when women were deemed to be witches based on whether they floated or sank.
When told about the study group, Dr. Joyce deJong, president of the National Association of Medical Examiners, said the organization “supports initiatives that aim to enhance forensic tests’ scientific rigor and reliability.” It doesn’t have an official stance on the test, but deJong said a primary role is to “promote best practices and standards in forensic pathology and death investigation.”
If the study group asks for board-certified forensic pathologists to participate, the organization could share the request with its members, deJong said.
The group leaders plan to spend the next several weeks assembling a team and hope to have their first meeting early next year.
“The process will be robust and comprehensive,” Medwed said. “We will explore and interrogate any argument, pro and con.”
Many medical experts say that air can enter the lungs of a stillborn child even without breathing. Air can enter when the baby’s chest compresses as it squeezes through the birth canal, through CPR or during the ordinary handling of the body. If the body is decomposed, gases may cause the lungs to float.
Following the U.S. Supreme Court’s decision to strike down the constitutional right to abortion, experts fear the test may play a larger role in cases when police and prosecutors raise questions about the circumstances of a birth.
“There’s a concern that more women would be vulnerable to prosecution, especially if they tried to self-induce later in pregnancy,” Ahmed said. “In this environment, the floating lung test is something that prosecutors would rely on.”
Medical and legal experts have pointed to wide variations in how the test is conducted, including the fact that some medical examiners use a whole lung while others use pieces. Experts have said the lack of standardization required by other forensic disciplines, such as DNA testing, has led to the lung float test producing inaccurate results.
Medwed, who also is a founding member of the board of directors of the Innocence Network, a coalition of organizations dedicated to fighting wrongful convictions, said that nearly 25% of wrongful conviction cases since 1989 involved some type of flawed science.
Because the lung float test is conducted by medical examiners, Medwed said, he worries the “mystique of the white coat” leads judges and jurors alike to overvalue the test. Similar concerns have been raised about shaken baby syndrome, which has faced increased scrutiny in recent years. There’s a natural deference to the expert, he said, and specifically the expert best at persuading a jury.
“The downstream consequence,” he said, “could be a wrongful conviction.”
Even supporters of the test acknowledge its drawbacks, conceding there are many ways to perform it and that they shouldn’t rely solely on the test when investigating a death. Despite those shortcomings, judges have allowed prosecutors to use it as evidence in court.
ProPublica wrote about the case of Moira Akers, a Maryland mother who insisted she had a stillbirth but last year was sentenced to 30 years in prison after a jury found her guilty of child abuse and murder. The medical examiner in the case relied on the lung float test. The state’s attorney’s office declined to comment while the case was on appeal.
The Appellate Court of Maryland is set to hear Akers’ appeal in early January.
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The Biden administration this fall is quietly moving to overhaul welfare, aiming to end multiple abuses of the nation’s cash assistance program for the poor that a 2021 ProPublica investigation found states have been engaging in for years.
Through a package of proposed reforms to the Temporary Assistance for Needy Families program, or TANF, the administration plans to shore up the U.S. social safety net. The regulations are intended to ensure that more federal and state welfare dollars make it to low-income families, rather than being spent on other things or not spent at all.
The proposal, drawn up by the federal Administration for Children and Families, is open for public comment until Dec. 1. Once comments are reviewed, officials plan to issue final regulations that could take effect in the months after that, heading into the 2024 election.
The first change would prohibit states from counting charitable giving by private organizations, such as churches and food banks, as “state” spending on welfare, a practice that has allowed legislatures to budget less for programs for low-income families while still claiming to meet federal minimums. ProPublica documented how Utah avoided more than $75 million in spending on public assistance over the past decade by taking credit for aid to the hungry and homeless provided by the Church of Jesus Christ of Latter-day Saints. (Many of the vulnerable Utahns we interviewed felt that in order to access desperately needed aid, they had to participate in Mormon religious rites they didn’t believe in.)
By banning this practice, the Biden administration’s plan would force Utah to stop taking credit for what the church does and instead spend more state money assisting people in poverty.
The new rules would also restrict states from spending TANF funds on child protective services investigations, foster care or any other programs that don’t meet the fundamental purposes of welfare: strengthening poor families and keeping them together. ProPublica found that in Arizona and elsewhere, money meant to help parents struggling to raise their children is instead used to investigate them for alleged child maltreatment — which often stems from the very financial circumstances that they needed help with in the first place.
Under the Biden plan, Arizona would likely have to find other ways of funding its aggressive child protective services investigations of poor parents and use welfare dollars to help families stay together rather than removing their kids into foster care.
The reforms would also redefine the term “needy” to refer only to families with incomes at or below 200% of the federal poverty line. Currently, some states spend TANF money on programs like college scholarships — or volleyball stadiums — that benefit more affluent people.
Ashley Burnside, a senior policy analyst and expert on TANF at the Center for Law and Social Policy, an advocacy organization for low-income Americans, said that political support for such improvements to welfare has grown in recent years, especially amid the pandemic, when so many more families started to need help. Media coverage by both ProPublica and Mississippi Today helped make this happen, she said.
As ProPublica has reported, many of welfare’s failures originated with a 1996 law signed by then-President Bill Clinton. That legislation, which Biden supported at the time as a senator, gave states broad flexibility over how to spend their annual grant of federal dollars intended for the poor. In the decades since, legislatures, especially in the South and Southwest, have found ever more creative outlets for the funding, including diverting it to anti-abortion clinics or not spending it at all.
The Biden administration’s proposal would mandate that states provide concrete evidence, including social science research or real-world examples, showing that they are using their TANF spending in ways that truly help families in need.
One of the best ways to do that, according to the administration: direct cash assistance. “We remind states that there is a large body of research that shows that cash assistance is a critically important tool for reducing family and child poverty,” said the announcement of the proposed regulations. “Studies have found that when families receive TANF and are more financially secure, they are less likely to be involved in the child welfare system.”
The announcement also said that states will have time to create new TANF plans; the implementation period will be flexible. But, ultimately, if they fail to comply, they will be assessed a significant penalty for misuse of funds.
“This will not completely solve the problem of the leakage of TANF funds,” said Burnside. “But it will create guardrails so that more money actually gets to poor families.”
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