Police responded to a call that a pregnant woman was overdosing. When they arrived, they administered Narcan, the life-saving drug that can reverse the effects of an opioid overdose. Afterward, they charged the woman with “abuse” of her “unborn child,” according to documents obtained by Pregnancy Justice.
This is one of 210 examples of pregnancy criminalization the nonprofit organization has documented in a report released last week that tracks police investigation and criminal court files involving pregnant people in the year after the Supreme Court overturned Roe v. Wade with the Dobbs decision. A previous report from the nonprofit organization showed that more and more pregnant people were being charged in the decades leading up to Dobbs. The year since saw the highest number of prosecutions the research team has documented in a single year, report co-author Wendy Bach told Salon.
“The report shows how pregnant people are really under increased surveillance in all kinds of ways, in particular when there’s a pregnancy loss,” Bach said in a video call.
The majority of cases documented in the report involved general criminal laws used to prosecute pregnant people. Ninety percent of charges were for some form of child abuse, neglect or endangerment wile 86% of cases did not require prosecutors to find evidence of harm to the fetus. Instead, these charges could be handed down if the defendant was judged to put the embryo or fetus at risk, noted Maya Manian, a law professor at American University who specializes in healthcare and reproductive rights.
“It just makes it easier to bring that charge and criminalize a person for their behavior during pregnancy,” Manian told Salon in a phone interview.
“The report shows how pregnant people are really under increased surveillance in all kinds of ways, in particular when there’s a pregnancy loss.”
Only one charge involved an abortion-specific crime under a now-repealed statute, and the remaining included criminal homicide, drug charges, and one charge of “abuse of a corpse.” While the reproductive rights movement is often centered around abortion, the distribution of these court cases shows how expansive the legislation restricting pregnant people’s reproductive rights enacted over the past several decades, said Mary Ziegler, a law professor at UC Davis and author of various books detailing the history of U.S. abortion.
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“What [anti-abortion groups] want to do is write the idea that a fetus is a person into as many laws and as many contexts as possible to eventually say to the ultra-conservative Supreme Court, ‘Isn’t it weird that a fetus isn’t a person in this other context?’” Ziegler told Salon in a phone interview. “Each prosecution, in a way, is a sort of break in the wall of building toward that national ban.”
The interconnectedness of the carceral system and the health care system in the context of reproductive rights can be traced back to the persecution of Black midwives in the South in the early 1900s, said Dr. Jamila Perritt, president and CEO of Physicians for Reproductive Health.
“Being pregnant, desiring pregnancy, and parenting your children does not absolve you from being at risk of criminalization,” Perritt told Salon in a phone interview. “In fact, based on this report, what we see is that it actually heightens that risk because people are being prosecuted, arrested and charged for things that they otherwise may not be criminalized for.”
Almost all of the cases in this report involved drug use, most commonly methamphetamine and THC, the active drug in cannabis. In five cases, defendants were reported to have a medical marijuana card, suggesting some pregnant people were charged for taking legal medication, according to the report.
“What we do in these cases is activate a sense of disgust that a person who is pregnant is doing something that threatens the fetus, and we skip over the question of whether, in fact, the fetus has been harmed by it,” said Michelle Oberman, a law professor at Santa Clara University who studies the impact of abortion regulations. “Because if the drug is illegal, then we can just say that by virtue of taking this illegal drug during pregnancy, she deserves a level of scrutiny, perhaps arrest, perhaps interrogation, perhaps prosecution.”
Nearly half of prosecutions in this report occurred in Alabama, whereas others were documented in Oklahoma, South Carolina, Ohio, Mississippi and Texas. In the report, nearly three-quarters of cases involved pregnant people who were low-income, and 68% of pregnant people with criminal charges were white. About 14% of pregnant people charged in the report were Black, 6% were Indigenous, and 4% were Latinx, although racial data was missing for about 7% of cases.
“Each prosecution, in a way, is a sort of break in the wall of building toward that national ban.”
Racial disparities are well documented in the health care and carceral systems that are affecting many of the pregnant people documented in these cases. Black women are more likely to be tested for illegal substances during pregnancy compared to white women, although they are less likely to test positive, according to a 2023 study published in JAMA Health Forum. Black and Indigenous mothers are also more likely to have Child Protective Services or a family surveillance system involved in their birth.
“We cannot separate any of this from the economic, racialized and gendered context in which medical care is provided because it absolutely shapes the decision that people make to engage or not engage with care,” Perritt said.
Ultimately, in many of these cases referring pregnant people to the criminal justice system instead of the health care system harms health outcomes. The states in this study with the highest number of prosecutions also have some of the worst maternal and infant mortality statistics, which disproportionately affect the Black and Indigenous mothers who are also overly policed in and outside of healthcare settings.
The patterns of prosecuting pregnant people for drug use trace back to the crack cocaine crisis in the ‘80s, when it was thought that in utero exposure to crack cocaine would lead to a generation of “crack babies.” That assumption, which mostly targeted Black mothers, turned out to be false — crack babies aren’t a thing — but that same stigmatizing attitude has shifted with changes in the drug supply and is now directed toward pregnant people who use opioids and methamphetamine.
The Pregnancy Justice report recommends strengthening Health Insurance Portability and Accountability Act (HIPAA) protections as one way to reduce pregnancy criminalization. In its report, 57% of cases used information obtained from health care settings such as drug tests to make a criminal report. While many health care providers believe reporting this information can connect people to services, the reality is that it often has the opposite effect and ends up pushing them further away from care, Perritt said.
“This idea that medical care facilities or medical providers are safe spaces or safe people is not something that is universally experienced,” Perritt said. “That experience is going to be shaped by the identities upon which people experience oppression.”
Since the study was concluded in 2023, the research at Pregnancy Justice has found additional court cases that were not included in this report, and many cases were likely missed in their search, Bach said. With additional restrictions on reproductive health continuing to go into effect, experts agree that the number of pregnancy criminalizations are likely to continue to increase. For example, a Louisiana law went into effect this week designating the abortion drugs mifepristone and misoprostol as controlled substances, making possession without a prescription carry a maximum five year prison sentence.
“Whether we’re talking about reclassifying or scheduling medications, the attempt by states to criminalize self-managed abortion care, or, in the case of this report, folks being accused of child endangerment for not receiving prenatal care, the number of folks that are going to be caught in this web of criminalization is going to continue to grow,” Perritt said.
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