According to the report, more than 200 women were charged with pregnancy in the year after Dobbs

Incarcerated women talk on the phone. A new report describes more than 200 cases of women who were criminally charged for their behavior during pregnancy in the year following the U.S. Supreme Court’s 2022 decision that struck down the constitutional right to abortion. (John Moore/Getty Images)

In the year after the U.S. Supreme Court struck down the constitutional right to abortion in June 2022, more than 200 pregnant women were prosecuted for conduct related to their pregnancy, pregnancy loss or childbirth, according to a new report.

The report was prepared by Pregnancy Justice, a nonprofit organization that advocates for the rights of pregnant people, including the right to abortion. Researchers in multiple states documented 210 cases of women being charged with pregnancy-related conduct in 12 states from June 24, 2022 to June 23, 2023, the first year after the U.S. Supreme Court struck down the constitutional right to abortion, thereby ending the problem had been raised to the states.

Most of the charges involved substance use during pregnancy; In two-thirds of the cases it was the only accusation against the defendant. Six states — Alabama, Mississippi, Ohio, Oklahoma, South Carolina and Texas — accounted for the most cases documented by researchers.

The new report uses improved data collection, making comparisons with previous versions difficult. But “what we found was an even greater acceleration in the criminalization of pregnancy compared to before the Supreme Court ruling,” said Lourdes Rivera, president of Pregnancy Justice. Rivera said she believes there will be greater scrutiny of pregnancy loss in states with abortion bans or new restrictions.

The reason for criminalizing pregnancy is to expand fetal personality.

– Lourdes Rivera, President, Pregnancy Equity

However, almost none of the prosecutions documented by the researchers were brought based on state abortion laws. Instead, the researchers found that law enforcement most often charged pregnant women with crimes such as child neglect or child endangerment, where the definition of “child” included a fetus. In doing so, authorities relied on a legal concept called fetal personhood – the idea that a fetus, embryo or fertilized egg has the same legal rights as a person born.

“If we focus only on abortion laws, we miss a crucial part of the picture, which is the fact that pregnant people are criminalized for allegedly endangering their own pregnancy, for losing a pregnancy, and in some cases for conduct related to abortion Abortion,” Rivera said. “What drives the criminalization of pregnancy is the expansion of fetal personhood.”

Child abuse or child endangerment charges carry harsher penalties – larger fines and longer prison sentences – than the minor drug offenses the women would likely face had they not been pregnant.

“Pregnancy-related prosecutions generally do not charge crimes that, on the face of it, have anything to do with pregnancy,” said Wendy Bach, a professor at the University of Tennessee College of Law and lead investigator on the report. “Instead, they exploit the idea of ​​fetal personhood, or more specifically the idea that the fetus can be the victim of a crime committed by the pregnant person, and use that theory to charge general crimes.”

The urge to accuse

Conservative lawmakers in Alaska, Illinois, Missouri, South Carolina and West Virginia introduced fetal personhood bills last legislative session, but none made it out of committee. In Nebraska, dueling amendments will appear on the ballot. It would codify the right to abortion until “fetal viability,” about 24 weeks. The other would amend the state constitution to limit abortions to 12 weeks and protect “unborn children” in the second and third trimesters of pregnancy.

Supporters of charging pregnant women with conduct that could harm a fetus argue that the threat of prosecution is an incentive for women to seek treatment or treatment for substance use disorders.

Jody Willoughby, the Republican district attorney in Etowah County, Alabama, which has long had the highest number of pregnancy-related arrests in the nation, has publicly stated that his office is prosecuting cases because doing nothing would make his office “an enabler of…” deadly addiction that engages in the abuse of a child and ultimately leads to the death of a mother,” local news outlet AL.com reported in 2022. Willoughby did not respond to Stateline’s requests for comment.

But critics say the arrests and prosecutions discourage people from seeking help for fear of being arrested or losing custody of their children. The majority of defendants named in the report were low-income; most were white.

All six states that accounted for most of the cases cited in the study have the language of fetal personhood enshrined in their laws. According to an analysis by Pregnancy Justice, 17 states have laws with broad fetal personhood language that could apply to all criminal laws.

Alabama leads the nation when it comes to prosecuting pregnant women, accounting for nearly half of the prosecutions documented in the report. Alabama has a constitutional amendment approved by voters in 2018 that explicitly grants personality to fetuses and affirms the state’s responsibility to protect “the rights of unborn children.” All of the cases documented in Alabama fell under that country’s chemical endangerment law, which the Alabama Supreme Court ruled in 2013 can apply to fetuses.

Most of Alabama’s cases come from just a few counties. They were long considered outliers, places where a handful of overzealous officials liberally applied the state’s chemical hazard law to hundreds of pregnant women.

But Brittany VandeBerg, who led the research in Alabama, said chemical endangerment charges have surfaced in a dozen more Alabama counties since the Dobbs ruling.

“In each county, the district attorney really determines what their office’s law enforcement priorities are,” said VandeBerg, vice chair of the Department of Criminology and Criminal Justice at the University of Alabama. “I don’t know if the elected district attorneys feel like this is what the community wants or if it’s their own personal feelings. But the system is in place to move these cases forward.”

VandeBerg said Alabama offers relatively poor resources for people struggling with addiction. That makes law enforcement feel like they have no choice but to arrest and incarcerate women with substance use disorders, she said.

“There are simply not enough residential treatment options to help these women,” VandeBerg told Stateline.

One of the things that struck VandeBerg as she reviewed the cases was the large proportion of incidents in which a pregnant woman was charged with chemical endangerment even though her baby showed no signs of harm after birth.

“I found that incredibly shocking,” said VandeBerg, who pointed out that Alabama’s chemical endangerment law can result in a 10-year prison sentence — much longer than for some domestic violence crimes. “Here the mother is being charged before we know anything happened.”

Defendant exonerated

In July, an Oklahoma court exonerated a woman who was charged with child neglect in 2020 after her son tested positive for marijuana at birth. Prosecutors pursued the case even though her baby was born healthy and she had a medical license from the state to legally use medical marijuana to treat severe morning sickness during pregnancy.

Brian Hermanson, a Republican district attorney from Oklahoma who has prosecuted dozens of women in his district under similar circumstances, used fetal personality language in his legal argument.

“Marijuana is an illegal drug under Oklahoma law unless the person using the marijuana has a medical marijuana license. Unborn babies cannot hold such a license,” Hermanson wrote in a court filing.

“[The defendant] admitted to smoking marijuana during her pregnancy, knowing full well that her unborn child was exposed to the possible harmful effects of marijuana smoke.”

The Pregnancy Justice report also documented five cases in which the allegations specifically mentioned abortion. One was placed under a state abortion law that has since been repealed. The other four cases were charged with murder, child neglect or abuse of a corpse. In the two murder cases, the defendants allegedly went to an abortion clinic or took pills and the abortion was successful, Rivera said.

SUPPORT: YOU MAKE OUR WORK POSSIBLE