Women have long been at risk of being arrested for their behavior while pregnant ― and advocates worry that state laws passed since the fall of Roe v. Wade will make such punishments more common.
A new report from Pregnancy Justice, a legal advocacy organization for pregnant people, reveals that hundreds of pregnant Americans were criminalized for their pregnancy outcomes, including miscarriage, even when Roe was in effect. The American College of Obstetricians and Gynecologists defines the criminalization of pregnancy as penalizing people for actions that could be seen as harmful to their fetuses, even if those behaviors wouldn’t otherwise be considered criminal.
Nearly 1,400 criminal arrests took place between 2006 and June 2022, according to Pregnancy Justice’s report, for things like using illicit substances or drinking alcohol while pregnant. Other cases include pregnant women being criminalized for not wearing a seatbelt, refusing a C-section, not getting prenatal care while pregnant and having HIV.
“We should all be incredibly concerned about the fact that pregnant people are getting arrested, prosecuted, separated from their children and incarcerated for actions that should not be illegal,” Lourdes Rivera, the president of Pregnancy Justice, said during a press call on Tuesday.
Many of the stories included in Pregnancy Justice’s report made national headlines. In 2014, for example, a Tennessee woman who was nine months pregnant was arrested for driving without a seatbelt. She had engaged “in conduct which placed her baby in imminent danger or death or serious bodily injury,” according to the warrant for her arrest.
“The Dobbs decision basically flung open the gates for these types of criminalizations to continue and increase.”
– Lourdes Rivera, Pregnancy Justice
Geography and income level are the greatest factors when it comes to pregnancy criminalization, according to the report. White pregnant people who are low-income are the most criminalized group, while Black pregnant people who are low-income are also overrepresented in the data.
Around 80% of these arrests occurred in five Southern states: Alabama, Mississippi, South Carolina, Tennessee and Oklahoma. Three of those states ― Alabama, South Carolina and Oklahoma ― recognize fetuses as people in their criminal codes, an increasingly common type of legislation known as fetal personhood laws.
“We can tie this increase in criminalization directly to the expansion of the increased ideology of fetal personhood. The idea that a fetus or a fertilized egg has the same, if not more rights, than the actual person carrying the pregnancy,” Rivera said. “During the period that we’re looking at 2006 to June 2022, fetal personhood gained influence and has increasingly become embedded in laws in judicial decisions.”
Fifteen states had some form of criminal fetal personhood laws in effect before Roe fell last summer. Many, like South Carolina and Alabama, center on drug use during pregnancy and have historically been weaponized against the most marginalized, including poor women and people of color.
Over 95% of the nearly 1,400 cases of pregnancy criminalization dealt with substance use during pregnancy, Pregnancy Justice found. The three most common substances found in these cases were methamphetamine, cocaine and marijuana; the latter is legal in many states. One-quarter of the cases involved the alleged use of legal substances, such as prescription opiates, nicotine and alcohol.
One case included in Pregnancy Justice’s report was a 19-year-old woman from Oklahoma who, in 2020 went to the hospital after experiencing a miscarriage, but she was arrested and charged with manslaughter after she told hospital staff she had used marijuana and methamphetamine while pregnant. The young woman couldn’t afford her $20,000 bail and remained in jail for a year and a half before she was convicted of manslaughter and sentenced to four years in prison.
And these cases don’t just happen in red states. A pregnant woman in California gave birth to a stillborn baby in 2018. She was later charged with murder, and the prosecutor in her case argued that her meth use caused the stillbirth, and she spent four years in prison before the charge was dropped.
Fetal personhood laws that focused on pregnant people and drug use, like those in effect before Roe fell, allowed prosecutors to charge pregnant women with “chemical endangerment of a child.” For example, Alabama passed its chemical endangerment law in 2006 to protect children from dangerous fumes and chemicals found in home-based meth labs.
Not long after, district attorneys started applying the law to drug-using pregnant women, despite the law including nothing about fetuses. Prosecutors stretched the interpretation of the law, reasoning that a fetus is a child, and by ingesting drugs, the pregnant person is bringing chemical harm to the so-called child. As a result, Alabama’s law has been used to criminalize dozens of pregnant people in the state when they test positive for an illegal drug or legal medication.
Pregnancy Justice’s report also contextualizes the history of substance use for pregnant people in the U.S., pointing to the racist and politically motivated “war on drugs” campaign of the 1980s.
“Pregnancy criminalization first became widespread in the 1980s, amid the sensationalized, racialized, and resoundingly debunked ‘crack baby epidemic,’” the report reads. “This armed the anti-abortion movement with a perfect narrative to move their agenda forward: it played on racist and sexist tropes about Black women and their right to reproduce… and it created a new category of crime victim: the innocent fetus, fertilized egg, or embryo. Black women were overwhelmingly the targets of pregnancy criminalization in the first several decades after Roe.”
Chemical endangerment laws and other fetal personhood laws are still in effect in those 15 states and will likely target even more pregnant people without the protections of Roe. Last year, Georgia became the first state to pass a fetal personhood law after the Supreme Court’s decision in Dobbs, which overturned Roe.
“The Dobbs decision basically flung open the gates for these types of criminalizations to continue and increase,” Rivera said. “Unless we do something about it, this is unfortunately going to be the trend.”
Head here to read the Pregnancy Justice report in full.
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