In the first two years of post-Dobbs America, 412 people were charged with “pregnancy-related” crimes, with 399 of these being related to substance use—including alcohol. These charges, which most frequently alleged either child abuse or neglect of the fetus, were made possible by politicians who have slow-dripped the language and ideology of fetal personhood into lawmaking for decades, a process that has only amplified since the overturning of Roe v. Wade.
For years, anti-choice lawmakers have sought to lay down legal precedents for fetuses and embryos to be considered fully fledged persons in need of legal protections as part of a wider framework to criminalize abortion as murder. But this language and this broader approach to so-called public health have ramifications beyond abortion: If a fetus is a person, then consuming alcohol or narcotics while pregnant and putting the fetus at risk for fetal alcohol spectrum disorder, or FASD, and other substance-related birth defects is a form of child endangerment.
Not only does this result in the criminalizing of pregnant people, it also hinders the prevention, research, and treatment for both the FASD and substance use disorders being weaponized to advance this anti-abortion agenda. What’s more, this ideology has proven to be wholly ineffective in the effort to “protect fetuses.” Laws around “pregnancy-related crimes” have only prevented mothers from seeking support, while simultaneously creating legal frameworks for restricting abortion access, creating a climate where pregnant patients are increasingly policed and where public health policies around prenatal substance exposure, FASD, and reproductive justice movements are increasingly linked.
Dr. Sarah Roberts is a professor and legal epidemiologist at the Advancing New Standards in Reproductive Health initiative at the University of California at San Francisco, and one of the only researchers in the United States working on the intersections of health care practices and policies around abortion and the criminalization of behaviors while pregnant. “Singling out drinking while pregnant isn’t effective,” she explains, noting that none of the punitive or so-called “supportive” FASD prevention policies that she’s analyzed actually prevented FASD.
The only policies that actually prevented FASD and offered support to mothers and babies with FASD were those that addressed alcohol consumption across the board. “People who are drinking while pregnant were drinking before they got pregnant and are in families and communities where people are drinking as well, so by reducing drinking at a population level, that also relates to improved outcomes during pregnancy,” Dr. Roberts explains.
In her research, Dr. Roberts has found that the states that criminalize pregnant people consuming alcohol largely overlap with states restricting abortion.
“Anti-abortion laws have always opened up the potential for greater surveillance, policing, and punishment of pregnant people. We see that in the way that miscarriage is policed, the way that substance use during pregnancy is increasingly policed, in the way that people have been punished for this, under a range of laws that have nothing to do with abortion,” explains Dr. Gretchen Sisson, sociologist at the University of California at San Francisco, and the author of Relinquished: The Politics of Adoption and the Privilege of American Motherhood.
As Roberts explains, many of the policies that target pregnant people who drink also target those who consume other substances. These policies have deep roots, often dating back to the “war on drugs,” and, more specifically, the racist “crack baby” scare in the 1980s and 1990s. Media outlets of that era often presented sensationalist narratives that babies born to mothers using crack cocaine would be born with brain damage and overwhelm welfare systems, leading to a widespread targeting and policing of Black pregnant people, in particular. These policies were often ignored or brushed aside by mainstream pro-choice, often white-led organizing groups at the time, without the foresight of recognizing that this very same positioning of fetuses as people would be used to dismantle abortion access in the years to come. “There is a racist history to this, an ableist history to this, and a classist history to this, that these issues weren’t considered ‘mainstream’ abortion rights or reproductive rights issues,” explains Dana Sussman, the vice president of Pregnancy Justice.
Today, Roberts’s research has found that Black mothers are still excessively targeted by “total welfare reporting,” or laws that require physicians to report pregnant patients to Child Protective Services if alcohol consumption is suspected. This reporting is linked to an increase in adverse effects for Black women and babies, despite the “pro-family” rhetoric behind them. Similarly, Black women are more likely to face restricted abortion access and be targeted by pregnancy-related (and abortion-related) criminal prosecutions.
Pregnancy Justice is a New York–based organization that represents people charged with pregnancy-related crimes, the vast majority of which involve allegations of substance use. For Sussman, the intersections of pro-choice organizing and organizing around FASD and prenatal exposure to substances are clear: “We are all fighting for people to get health care,” she explains. For her organization, the idea of fetal personhood is the product of a shared ideology of control and coercion, linking restricted abortion access and the criminalization of pregnant people. “If your Supreme Court is interpreting your statutes around children to include embryos and fetuses, then how does that work with abortion?”
Many of the clients of Pregnancy Justice under criminal investigation were reported or “found out” when seeking health care, including support for substance use disorders. Where mothers sought support for alcohol or substance use disorders, they found credible, legal threats against them under the guise of child protection policies. “We know that when you put people at risk of losing their children, either children already born or future children, or at risk of losing their liberty because they have a substance use disorder, whether it be alcohol or drugs, they will not get care, and outcomes will be worse for everyone—both mom and baby,” says Sussman.
Advocacy groups for research and funding toward FASD acknowledge and condemn the criminalization of pregnant people consuming alcohol, with one organization, which requested to remain unnamed so as not to put its research at risk, reiterating that the punitive policies only prevent mothers from seeking help and add to the stigma of both mothers and children with FASD, undermining the principles of disability justice for which the movement is often fighting.
At the same time, organizations dedicated to FASD appear to be in an uncomfortable position: Lawmakers supportive of funding and various supportive policies around FASD are not always advocates for struggling pregnant people or for reproductive justice. The FASD Respect Act, a 2025 bill that brought in waves of funding for FASD-related research and programming, for instance, was passed across party lines, with co-sponsorship from Senator Jerry Moran of Kansas, rated an A+ by Susan B. Anthony Pro-Life America because he’s “voted to consistently protect the lives of the unborn,” and Senator Kevin Cramer of North Dakota, who describes himself as a “staunch advocate for life.”
Many children diagnosed with FASD are adopted. “Children with special needs are more likely to be adopted because if you have a family that is low-resourced who doesn’t feel equipped to care for a child with special needs, they’re more likely to relinquish; and if you have a mother who is engaged in alcohol use at high levels, she’s more likely to be subject to family policing and child removal,” explains Sisson.
Anti-abortion, pro-FASD-funding lawmakers appear to see adoption as a fundable, moral alternative to abortion, creating a contradictory overlap between the two movements—all while refusing to acknowledge the harmful ramifications of their policies. “There is definitely a pro-adoption thread within the disability community, and I think it is particularly pronounced in cases where disability is attributed to maternal actions during pregnancy, because then [it’s] even more about how adoption can be about saviorism,” Sisson remarks. This overlap also creates an apparent nervousness within FASD organizations to engage with pro-choice movements, reproductive rights organizing, or even the word feminism, for fear of having these lawmakers turn their back on them.
The anti-abortion movement, despite many members labeling themselves as supportive of FASD research funding and programs for those with FASD and their families, seeks a framework that treats fetuses with FASD as the victims of crime—and the mothers as perpetrators. At a lawmaking level, this only propagates extreme stigma against both mothers and babies with FASD and prevents families from seeking help for substance use disorders and for disability support.
Laced with saviorism and the desire to police both disability and pregnancy, the anti-abortion underpinning of pregnancy-related laws and prosecution hinders proactive and effective FASD-related support, resulting only in the targeting of pregnant patients, and not in the protection of children or mothers. On the flip side, for organizers working to support disabled people, abortion rights, and mothers targeted by pregnancy-related prosecutions, reproductive rights and policies on prenatal substance exposure are inseparable: The dismantling of fetal personhood ideologies is critical to the underpinning of both abortion rights advocacy and policies that effectively support mothers and babies, as well as reversing the Trojan horse the anti-abortion camp has been building for decades.
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