Reproductive rights and justice leaders had warned that after Dobbs v. Jackson Women’s Health Organization, the Supreme Court decision that demolished Roe, anti-abortion activists would be emboldened to demand such prosecutions. These warnings were well founded. As new research released Tuesday by the advocacy organization Pregnancy Justice reveals, over the two years following the decision, hundreds of people were prosecuted for their pregnancy outcomes. The group identified more than 400 cases in which prosecutors charged a person for crimes related to their pregnancy, pregnancy loss, or birth. Using media reports, public records, and direct information provided to the group, the report offers a snapshot of who has been charged in this new legal environment. The most common charges, by far, were related to child abuse, neglect, and endangerment. In all, among 412 defendants (some of whom faced multiple charges), 399 charges alleged substance use during pregnancy; 29 alleged lack of prenatal care; and nine allegations involved obtaining, attempting, or researching an abortion. More than half of those charged were white. The vast majority of all charged were low-income.
One of the most striking aspects of the data is what it shows about where the cases tend to originate. “So many of these cases start by a health care provider,” Pregnancy Justice senior vice president Dana Sussman told me this week. That provider may think they’re required to report a pregnant person “to either a child welfare agency or the police, or both.” Pregnant patients encounter doctors, nurses, physician’s assistants, and social workers who have been primed to report them, or who may believe they have less discretion about what they say than they really do. “It’s such a normalized process,” Sussman added. “People are being reported, and then they’re being swept up into the system.” The reports could be for anything that has been deemed “suspicious,” Sussman said, from showing a positive drug test to not having had prenatal care, to displaying a flat affect. While some hospitals have changed their approach to mandatory drug testing, those changes don’t address other ways pregnant people are profiled and reported to state agencies and law enforcement.
As the war on drugs shifted to target opioid users, Pregnancy Justice saw that in the cases it tracked, white people became the majority among those charged in pregnancy criminalization cases. This pattern was already shifting before Dobbs. In the cases in the two years since, 61 charges involved allegations of fentanyl use, and 44 involved allegations of cocaine or crack use. There were also 22 cases involving medication-assisted treatment, such as buprenorphine, suggesting that some of those charged were at the time trying to stop or reduce their drug use. This is worth highlighting not because these cases were somehow less deserving of punishment but rather as an illustration of how wide the web of pregnancy criminalization stretches.
Claims of “child protection” also allow police and prosecutors to harness existing laws to police pregnancy. This is how hundreds of people were prosecuted for the outcome of their pregnancies in the two years following the Dobbs decision. In fact, to charge people for their abortions, states don’t actually need laws such as the one up for debate in South Carolina. “If prosecutors adopt this ideology around fetal personhood,” said Sussman of Pregnancy Justice, “it really doesn’t matter if there’s a criminal abortion law on the books or not that targets pregnant people.” In other words, if a prosecutor wants to charge someone with a crime for a suspected abortion, they can just try to use a child endangerment law that already exists—and that’s exactly what’s happening.
“Dismantling the mandatory-reporting pipeline in hospital settings,” as Dana Sussman told me, is critical to ending pregnancy criminalization. In a way, Dobbs brought more recognition to the risk of pregnancy criminalization, particularly for abortion funds, people self-managing an abortion, and people helping others obtain an abortion. Connecting all of this is the reasonable concern, after Dobbs, that any pregnancy could be considered a potential crime scene, depending on the word of a nurse or a child welfare worker, or a prosecutor’s discretion, no matter what laws are in effect. Refusing to be criminalized is not about claiming one’s own individual innocence; rather, it requires affirming that none of this should be considered a crime in the first place.
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