Post-Roe, pregnant women face growing risk of criminal prosecution for charges much broader than abortion

By Deidre McPhillips, CNN

(CNN) — A fractured landscape of reproductive rights continues to evolve in the United States in the wake of the Supreme Court Dobbs decision that revoked the federal right to an abortion, and a new report suggests that pregnant women now face increased risk of criminal prosecution.

Between June 2022 and June 2023, there were more than 200 cases in which a pregnant person faced criminal charges for conduct associated with pregnancy, pregnancy loss or birth — the most cases recorded in a single year over decades of tracking, according to Pregnancy Justice, a nonprofit focused on the civil and human rights of pregnant people.

“Dobbs certainly has unleashed a proliferation of old and new abortion laws, which are fundamentally criminal laws,” Lourdes A. Rivera, president of Pregnancy Justice, said at a media briefing on Tuesday. While these laws have had serious impacts on reproductive health, they haven’t led to direct prosecution of pregnant women very often, she said.

“However, if we focus only on abortion laws, we miss a crucial part of the picture, and the fact that pregnant individuals are being criminalized for allegedly endangering their own pregnancies, for pregnancy loss, and in some cases for conduct related to abortion. Prosecutors don’t need to rely on specific criminal abortion laws to prosecute pregnant women.”

Fetal personhood, a concept that extends legal rights to a fetus, embryo or fertilized egg and a cornerstone of the anti-abortion movement, is at the root of many of the allegations.

The vast majority of cases from the most recent year of data allege some form of child abuse, neglect or endangerment, according to the new report. Other documented charges against pregnant women include criminal homicide and drug-related charges, along with one charge related to a portion of a criminal abortion statute that has since been repealed and one charge of abuse of a corpse.

Prosecution of pregnant people isn’t new — Pregnancy Justice has tracked about 2,000 similar cases over the past 50 years — but experts say that the overturning of Roe v. Wade may have emboldened the cause.

“Prosecutions of pregnant women for conduct during pregnancy didn’t start with the anti-abortion movement, but they definitely accelerated with the anti-abortion movement,” said Mary Ruth Ziegler, a legal historian focusing on abortion at University of California Davis School of Law. She was not involved in the new report.

Certain groups have been advocating for fetal personhood for decades, she said. But under Roe, it was impossible to advance that argument in any meaningful way because the Supreme Court ruling that protected the federal right to an abortion also stated that the people referenced in the Constitution did not apply to a fetus. So instead, fetal personhood was indirectly written into other areas of law, with a particular focus on advocating for prosecutions of pregnant women.

There are lots of behaviors that can lead to pregnancy complications – everything from drinking a glass of wine to running a marathon – but prosecuting these more broadly accepted activities could create pushback. So many laws focused on drug use while pregnant, disproportionately targeting politically stigmatized and powerless groups, Ziegler said.

“The goal was not just to have these individual people go to prison, it was meant to set a precedent about what fetal rights look like,” she said. “So going for the easiest target made sense.”

That trend has stuck; the data from June 2022 to June 2023 shows that the vast majority of pregnancy-related charges alleged substance use during pregnancy, according to the new report from Pregnancy Justice. In more than half of the cases, substance use was the only allegation made against the defendant.

More than three-quarters of all defendants were low-income and nearly all cases allowed prosecutors to charge pregnant people without having to prove that there was harm to the fetus or infant, according to the latest year of data in the new report.

“With both an opioid and a maternal health care crisis, pregnant people need health care and support and privacy. Instead, we learn that they are being met with suspicion, surveillance, prosecution and punishment,” Wendy Bach, law professor at the University of Tennessee and principal investigator on the new report said at Tuesday’s briefing.

In more than half of the cases, information used in a criminal charge against a pregnant person was obtained or disclosed in a medical setting.

While the 210 cases identified in the new report are likely an undercount, Pregnancy Justice also notes that dedicated resources — with researchers across multiple universities — may have helped uncover more cases than in previous years.

Now that Roe has been overturned, “the stakes of doing this are higher, and the spotlight is on it more,” Ziegler said. “To the people pursuing (fetal personhood), each prosecution is like a brick in the wall of something they’re trying to build.”

But the legal precedent isn’t completely set yet, she said. Many laws related to fetal personhood and criminalization of pregnant people were passed when there was no way to enforce them and now, courts across the country are working through what that means.

In the year post-Dobbs, most pregnancy-related prosecutions occurred in states that have enshrined fetal personhood in their civil and criminal laws, according to the report from Pregnancy Justice.

About half of cases were in Alabama, where residents voted in 2018 to amend the Constitution to include protections for unborn life and where the state Supreme Court ruled in February that frozen embryos are children and those who destroy them can be held liable for wrongful death.

“The People of Alabama have declared the public policy of this State to be that unborn human life is sacred,” Chief Justice Tom Parker wrote in his concurring opinion earlier this year. “We believe that each human being, from the moment of conception, is made in the image of God, created by Him to reflect His likeness.”

Another third were in Oklahoma and nearly a dozen were in South Carolina, all states where abortion is banned or heavily restricted.

When Amari Marsh was a student at South Carolina State University in 2023, she was charged with murder/homicide by child abuse three months after her miscarriage.

Marsh’s case is a “prime example of how pregnancy loss can become a criminal investigation very quickly,” Dana Sussman, senior vice president of Pregnancy Justice, told KFF. “The Dobbs decision unleashed and empowered prosecutors to look at pregnant people as a suspect class and at pregnancy loss as a suspicious event.”

Pregnancy Justice could not disclose individual cases that they identified in the new report, but said that Marsh’s case does meet the criteria and time frame to be included.

“Pregnancy Justice’s new report shows how the Dobbs decision emboldened prosecutors to develop ever more aggressive strategies to prosecute pregnancy, leading to the most pregnancy-related criminal cases on record. This is directly tied to the radical legal doctrine of ‘fetal personhood,’ which grants full legal rights to an embryo or fetus, turning them into victims of crimes perpetrated by pregnant women,” Rivera said.

“To turn the tide on criminalization, we need to separate health care from the criminal legal system and to change policy and practices to ensure that pregnant people can safely access the health care they need, without fear of criminalization. This report demonstrates that, in post-Dobbs America, being pregnant places people at increased risk, not only of dire health outcomes, but of arrest.”

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