Steep rise in criminalizing pregnant people during Roe era, new data shows

Law enforcement carried out nearly 1,400 arrests of people for allegedly endangering “unborn life” between 2006 and the fall of Roe v Wade in 2022, according to a new report released Tuesday, which found a sharp rise in how often people face criminal consequences over pregnancy.

The report is the only comprehensive accounting of how law enforcement criminalized pregnant people during the Roe era. Notably, relatively few of the cases captured in the report involve abortion. Instead, they focus on individuals who lost pregnancies or were accused of “child abuse” while pregnant.

In total, the group behind the report, Pregnancy Justice, uncovered more than 1,800 cases where law enforcement or healthcare workers criminalized people for their pregnancies in the half-century between Roe’s emergence in 1973 and its end in 2022.

“Pregnant people are, simply by virtue of being pregnant, vulnerable to criminal charges: child abuse or endangerment if they are accused of exposing their fetus to some perceived or actual risk of harm; or murder, feticide, or manslaughter if they experience a pregnancy loss,” Lourdes Rivera, Pregnancy Justice’s president, wrote in the report. “Now, without the protections of Roe, we can expect pregnancy criminalization to continue to increase.”

Pregnancy Justice is a legal advocacy group that defends people facing criminalization related to pregnancy. Its latest report builds on a 2013 study, also by Pregnancy Justice, that examined cases where women were criminalized for being pregnant between 1973 and 2005. While that study uncovered 413 cases, the Tuesday report picks up where that study left off and found roughly 1,400 more.

In 2020, Oklahoma police arrested a 19-year-old woman who had a miscarriage in her second trimester of pregnancy. Alleging that she had used meth, police charged her with first-degree manslaughter of the fetus (which could not yet survive outside the womb). A medical examiner had identified five other potential factors that may have led to the miscarriage.

In 2021, the woman was convicted and sentenced to four years in state prison. She decided not to appeal, because she was afraid that she may end up facing a life sentence.

Almost 85% of all the cases in the report involved people who were classified as “indigent”, which typically means that they could not afford an attorney. This suggests that poor people make up the bulk of pregnancy criminalization cases.

The cases were also wildly concentrated in the southern United States. Almost 80% of all cases documented in the report took place in Alabama, South Carolina, Tennessee, Oklahoma and Mississippi. (Nearly 47% of all cases, or 649 cases, took place in Alabama alone.) For two years, Tennessee had a provision known as the “fetal assault law” that penalized people whose newborns had been exposed to or harmed by a drug. Alabama, South Carolina and Oklahoma have expanded the legal meaning of “child” to include fetuses in their criminal law.

Those laws are part of what’s known as “the fetal personhood movement”, a push to legally redefine fetuses as people, with all the rights and protections such a definition entails. The idea that fetuses are people is at the core of anti-abortion logic, but it also has the potential to rewrite wide swathes of US law. Georgia’s six-week abortion ban, for example, allows people to claim fetuses as dependents when they file their state taxes.

If fetuses count as people, then their rights can compete with or even outstrip those of women carrying them. At least 11 states have added fetal personhood into their state constitutions or laws, while another five states have added fetal personhood specifically into their criminal codes, the Pregnancy Justice report found. Thirty-eight states have “fetal homicide” laws on the books, which make it a separate crime to cause a pregnancy loss.

“Halting criminalization requires repealing ‘fetal personhood’ laws and ending the collusion between the criminal and family regulation systems disrupted,” Rivera said in a statement accompanying the report. “We urge policymakers to include pregnant people within drug anti-criminalization efforts and embrace evidence-based approaches like access to comprehensive health care without fear or punishment.”

Nine out of 10 cases documented in the report involved allegations of using drugs while pregnant. One quarter of the cases involved allegations that someone had used legal substances, like prescription opioids, alcohol and nicotine. In cases where researchers could find information about the fate of the pregnancy, two out of three cases resulted in a live birth without any mention of harm done to the baby.

In 2019, a 35-year-old Oklahoman woman gave birth to a healthy baby girl whose first poop tested positive for marijuana, according to the report. Police arrested the woman and charged her with felony child abuse in 2020 – even though the woman not only possessed a medical marijuana card, which meant she could legally use marijuana in Oklahoma, but had also confirmed with her doctor that she could use marijuana while pregnant. (Three years later, the state finally dropped the charges.)

“The fact that pregnancy criminalization overwhelmingly involves substance use allegations cannot be considered in a vacuum,” argues the report, adding that “carefully constructed, unbiased scientific” has not found that exposure to illegal drugs are uniquely harmful, nor that they cause abortions, miscarriages or stillbirths. “Pregnancy criminalization arrests are a function of harmful racial stereotypes and broader cultural trends in drug prosecution and the ‘war on drugs.’”

Every major medical organization opposes using criminalization to address the issue of pregnancy and drug use, according to the report. Pregnant people are also likely to avoid seeking help for an addiction if they’re afraid they’ll wind up in jail.

In 2018, a pregnant mother of two relapsed with cocaine and meth while participating in a Michigan drug court program, the report found. The judge sentenced the woman to 13 to 24 months in custody, arguing that incarcerating her for the rest of her pregnancy would help her child avoid “a lifetime of permanent disability”.

The woman successfully appealed her case. And though she had won, she still ended up incarcerated throughout her pregnancy.