Pregnant women face increased criminalization post-Roe, new study finds

Pregnant women have faced a significant increase in criminal charges related to abortion, birth, and loss of pregnancy since the U.S. Supreme Court overturned Roe v. Wade, a new study has found. 

Pregnancy Justice, a national advocacy organization that defends the civil and legal rights of pregnant people, released the report on Sept. 24.

It says that 210 pregnant people faced criminal charges “for conduct associated with pregnancy, pregnancy loss, or birth” in the year following the Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization. That is the highest number of pregnancy-related charges recorded in a single year since 1973.

“Our new report shows how the Dobbs decision emboldened prosecutors to develop ever more aggressive strategies to prosecute pregnancy,” Pregnancy Justice president Lourdes A. Rivera said in a statement. “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.” 

These new criminal prosecutions “rest on the idea that a fertilized egg, embryo, or fetus is a person separate and apart from the pregnant person who carries it,” the report’s authors wrote. “Without fetal personhood, pregnancy criminalization could not exist.”

Alabama and Oklahoma have the highest number of prosecutions, the study found; both states have fetal personhood protections enshrined in their laws or constitutions. 

Mary Ziegler, a legal historian and a professor at the University of California Davis School of Law, said the stakes are higher for those in the anti-abortion movement now.  

“They’re trying to set the precedent that if a fetus is a person for some purposes, a fetus is a person for all purposes,” she said. “It’s also an opening to put a brick in the wall for fetal personhood potentially for judicial rulings, potentially nationally.”

Ziegler said laws criminalizing pregnant people are in part designed to scare people and create chaos. She said a lot of people are “grinding to make ends meet, who have some vague sense that abortion is a crime, and they don’t probably have time to figure out for whom or when. … A lot of the people we’re talking about are people without a lot of resources who are realistically not going to be able to navigate some of this stuff.” 

According to the report, most defendants come from low-income communities, with nearly half hailing from Alabama and one-third hailing from Oklahoma. 

The majority of the defendants are white (143 of 210). Most of the charges brought were for child abuse, neglect, or endangerment. They involved alleged substance use during pregnancy, and five cases included allegations related to abortion — attempting to have the procedure or simply researching it. In almost all of the cases, pregnant people were charged with offenses that allowed prosecutors to obtain convictions without having to prove harm to a fetus or infant.

Most notably, in 15 cases, police or prosecutors argued that a pregnant person’s failure to obtain prenatal care was evidence of a crime. 

“In one case, police were called to the scene because a pregnant woman was overdosing. After administering Narcan, police charged her with abuse of her ‘unborn child,’” the report’s authors wrote. “In another, an incarcerated pregnant woman wrote to the judge, begging to be transferred to a treatment facility. Her request was denied, and she gave birth in jail.”

Ziegler said there’s no evidence that criminalization helps or saves anyone.

“I think that that positioning is about buying into the frame that there really is an opposition between women and fetuses, when … having someone be prosecuted for falling down the stairs or taking illegal drugs is not going to actually help anybody or encourage anybody to do anything,” she said.

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.”