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Over the centuries, a flawed and controversial forensics tool known as the “floating lung test” or lung float test has sent innocent women accused of infanticide to the gallows.
And even though experts have known for decades that the test that allegedly determines whether a newborn drew breath before dying is inaccurate and unethical, it is still being used to distinguish between stillbirths and live births during legal proceedings in the U.S. and abroad.
ProPublica reported in October that the test has been used in at least 11 cases in which women were charged criminally for the death of their newborns since 2013. It helped put nine in jail.
Shortly after the article appeared, Daniel Medwed, Northeastern University distinguished professor of law and criminal justice, announced that he was collaborating with a colleague at Boston University Law School to create the Floating Lung Test Research Study Group.
Medwed spoke to Northeastern Global News about what inspired the study group, which is sponsored by the Northeastern Law’s Center for Public Interest Advocacy and Collaboration and the Boston University Program on Reproductive Justice, and what it hopes to achieve.
It is an age-old test that suggests if you put the lungs of a deceased infant in water and they float, there is oxygen in the lungs.
Medical examiners and coroners use the test to determine whether the baby was born alive and then killed as opposed to it being a stillbirth, to see if someone could be charged with infanticide.
It means that a woman could give birth to a stillborn child and then that tragedy could be compounded by prosecution for infanticide.
The major problem is the idea that an infant will only get oxygen in his or her lungs after they leave the uterus.
Scientists say it’s possible to get oxygen in the lungs in other ways, such as during resuscitation attempts and or after being handled post mortem. Lungs can also float from the presence of dissolved gasses.
The floating lung test is just bad science.
I’ve been interested in this topic for years but what really has made it critically important is the Dobbs decision and the war on women’s reproductive freedom.
Some of us are quite concerned that this test will be used to penalize women for abortions, not just stillbirths.
You can imagine that states going in this direction of criminalizing abortion would argue that air in the lungs makes a miscarriage, stillbirth or an assisted or self-induced abortion an act of infanticide.
Can you imagine the risk for a woman who feels forced to undergo a self-induced abortion being compounded by the threat of criminal prosecution?
We’re exposing the flaws in this test at a time when it could become even more prominent.
We are a consortium of law academics concerned about the admissibility of evidence in court and reproductive freedom as well as doctors and scientists who are concerned about the integrity of forensic science.
Co-founder Aziza Ahmed, professor at the Boston University School of Law, is a longtime friend and former colleague at Northeastern. She comes into it from more of a reproductive justice perspective.
Forensic science is a very sticky discipline.
Once a discipline is used in court or has gained a little bit of traction, it often takes a long time for it to go away.
This ties into my broader interest about wrongful convictions.
Flawed evidence is a key factor in a lot of these cases.
For instance, a forensic analyst comes into court and says the hair follicles found at the crime scene are a match to the defendant. That’s just junk science, dubious science, but it has an outsized impact on the jury because jurors tend to give a lot of weight to quote-unquote scientists.
Unlike more traditional sciences, there aren’t academic departments studying these tests.
The gendered aspect of it can’t be ignored.
Even though in theory it’s not necessarily the mom being accused of killing the baby — it could be the father or a doctor or a nurse — it is usually the mother who is prosecuted.
It’s part and parcel with gendered injustice.
In our society, we have an image of women as caretakers. Whenever a baby dies, there’s an impulse to blame the mom.
That’s antithetical to equity.
Our working group plans to expose this problem and alert prosecutors and judges about the scientific failings of the floating lung test so it’s not used in court to prosecute people, usually women.
The way the rules of evidence work, each jurisdiction has its own approach to scientific evidence and the reliability of scientific evidence.
We’re hoping to develop letters we could send to various forensic science groups and prosecutorial organizations to alert them about our concerns.
We also are envisioning doing a white paper just for publication about how this test has been used and why we think it is flawed — both scientifically and legally — so major players would become aware of the problems.
A third thing we might consider doing is weighing in on litigation and writing amicus or friends of the court briefs.