More than 200 women faced criminal charges related to their pregnancies in the year following the U.S. Supreme Court’s 2022 decision to overturn the constitutional right to abortion, according to a new report by Pregnancy Justice, a nonprofit advocating for pregnant individuals’ rights, including the right to abortion. The report documented 210 cases in 12 states from June 2022 to June 2023.
The report reveals that the majority of cases involved charges related to substance use during pregnancy, accounting for two-thirds of all cases. These cases were concentrated in six states: Alabama, Mississippi, Ohio, Oklahoma, South Carolina, and Texas. Despite the focus on substance use, researchers highlighted that most charges were not directly linked to abortion laws but rather to broader criminal statutes like child neglect and endangerment. Authorities often invoked “fetal personhood” – the legal concept that a fetus has the same rights as a born person – to bring charges against the women.
Lourdes Rivera, president of Pregnancy Justice, noted that the criminalization of pregnancy has intensified since the Supreme Court’s decision. “There is increasing scrutiny of pregnancy loss in states with abortion bans or new restrictions,” Rivera said.
While the report emphasized that few of the prosecutions were tied to state abortion laws, the legal concept of fetal personhood played a significant role in many of the cases. Under this concept, a fetus is considered a potential victim in cases of child abuse or endangerment, allowing prosecutors to pursue charges against pregnant women for alleged harm to their fetuses.
Wendy Bach, a law professor at the University of Tennessee and the report’s principal investigator, explained that general criminal laws were being applied in cases of pregnancy-related conduct. “Pregnancy-related prosecutions don’t generally charge crimes that specifically address pregnancy. Instead, the theory of fetal personhood is used to charge general crimes.”
Several states are attempting to legislate fetal personhood more explicitly. In the most recent legislative session, conservative lawmakers in Alaska, Illinois, Missouri, South Carolina, and West Virginia introduced bills aimed at codifying fetal personhood. Although none of these bills passed, the issue remains a topic of heated debate.
Proponents of these laws argue that criminal prosecution encourages women with substance use disorders to seek treatment during pregnancy. For instance, Jody Willoughby, a district attorney in Alabama, stated that his office’s prosecutions aim to protect both the mother and the unborn child. However, critics argue that such prosecutions have the opposite effect, deterring pregnant women from seeking medical care for fear of arrest or losing custody of their children.
Alabama has become the focal point for pregnancy-related prosecutions, accounting for nearly half of the cases documented in the report. The state’s 2018 constitutional amendment, which grants personhood to fetuses, has empowered local prosecutors to pursue cases under the state’s chemical endangerment law. The Alabama Supreme Court ruled in 2013 that this law could be applied to fetuses, further solidifying Alabama’s legal framework for pregnancy-related prosecutions.
Brittany VandeBerg, a criminology professor who led research on Alabama’s cases, observed that prosecutions have spread to several new counties since the Dobbs decision. She attributed this to the influence of district attorneys, who prioritize different types of cases based on local preferences.
“In each county, the district attorney steers the ship when it comes to deciding what types of cases to prosecute,” VandeBerg explained. “Whether it’s driven by personal beliefs or a perception of what the community wants, the system is in place to move these cases forward.”
VandeBerg emphasized that the lack of treatment options for women struggling with substance use disorders in Alabama is a significant issue. She pointed out that law enforcement officers often feel they have no choice but to arrest these women due to the scarcity of inpatient treatment facilities.
“I found it shocking that women are being charged with chemical endangerment even when their babies show no signs of harm after birth,” VandeBerg noted. Alabama’s chemical endangerment law carries a potential 10-year prison sentence, often exceeding the penalties for domestic violence crimes. VandeBerg expressed concern that these prosecutions occur before any harm has been demonstrated.
In July 2023, an Oklahoma court exonerated a woman charged with felony child neglect after her newbor
n tested positive for marijuana. The woman had a doctor-approved medical marijuana license to manage severe morning sickness during pregnancy. Despite the baby being born healthy, prosecutors pursued charges, citing fetal personhood as the basis for their case.
Oklahoma district attorney Brian Hermanson argued that although the defendant had a license to use medical marijuana, “unborn babies cannot hold such a license.” Hermanson emphasized that the defendant knowingly exposed her fetus to marijuana smoke during pregnancy.
The Pregnancy Justice report also highlighted five cases in which abortion was specifically mentioned in legal proceedings. In two instances, homicide charges were brought against women who sought abortion services or took abortion-inducing pills. Although abortion laws were not the primary basis for most prosecutions, the report indicates that the criminalization of pregnancy extends beyond substance use and abortion, with authorities increasingly targeting women for pregnancy loss or other pregnancy-related conduct.
Critics argue that these prosecutions disproportionately affect low-income women, who are often unable to access adequate healthcare or legal resources. The report underscores the need for policymakers to reconsider the application of criminal laws in cases of pregnancy, especially in light of the growing influence of fetal personhood in the legal landscape.
The report from Pregnancy Justice illustrates the growing trend of criminalizing pregnancy-related conduct, particularly in states where abortion access is restricted. As lawmakers continue to push for fetal personhood legislation, the legal rights of pregnant women remain under intense scrutiny. While proponents argue that criminal prosecution protects both mother and child, critics warn that such policies may have harmful consequences, driving vulnerable women away from seeking critical healthcare.
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