Abortion Bans Contributed to Most Documented Pregnancy-Related Criminal Charges in a Single Year

A new report from Pregnancy Justice shows that June 2022 to June 2023—the first year after Dobbs—had the highest number of pregnancy-related prosecutions documented in a single year.

By Kylie Cheung  |  September 24, 2024 | 9:00am
Photo via Getty AbortionPolitics Abortion Rights
Abortion Bans Contributed to Most Documented Pregnancy-Related Criminal Charges in a Single Year

In January, an Ohio jury determined not to prosecute a Black woman named Brittany Watts with a felony abuse of a corpse charge for having a miscarriage 22 weeks into her pregnancy. Watts lost her pregnancy in September 2023 while using the restroom, and when she sought help from a local hospital, a nurse called the police on her; the hospital had flagged her as criminally suspicious for asking for an emergency abortion for her nonviable abortion days earlier. Watts’ harrowing story sparked national outrage and action from Congressional Democrats. 

And according to a new report by Pregnancy Justice, Watts is one of hundreds of people who faced criminal charges over a pregnancy outcome in the first year after the Dobbs v. Jackson Women’s Health ruling in June 2022. The report shows that from June 2022 to June 2023—the first year after Dobbs—210 people faced criminal charges for conduct associated with pregnancy, pregnancy loss, abortion, or birth. This is the highest number of pregnancy-related prosecutions documented in a single year yet, and the report stresses that the number is an undercount, as the organization continues to track additional, ongoing cases.

Speaking to Jezebel, Pregnancy Justice President Lourdes Rivera said the report’s findings reflect how “post-Dobbs, abortion bans have created a chilling effect, an environment for law enforcement to misapply existing criminal laws and the ideology of fetal personhood” to wrongly criminalize a range of legal behaviors from pregnant people. The report shows 198 cases involved charges of some form of child abuse, neglect, or endangerment, while other cases involved charges of homicide, abuse of a corpse, alleged substance use, and more. This, Rivera says, is the consequence of embryos and fetuses being treated as people—in this case, “independent victims of crime”—under the law. As Dana Sussman, executive vice president of Pregnancy Justice, told Jezebel in 2022, “If [pregnant people’s] rights are secondary to the fetus, or at odds with the fetus, that lends to an environment in which violence—whether it’s state violence like imprisonment, or interpersonal violence—can be committed against pregnant people with far less accountability.”

Rivera stressed that pregnancy criminalization can and often does take place without direct relation to abortion bans, which (thus far) only criminalize providers and not patients. But that doesn’t mean abortion laws have nothing to do with the criminalization of pregnancy—quite the opposite. Last year, Farah Diaz-Tello, senior counsel and legal director of If/When/How, told Jezebel that Watts’ case in Ohio “has everything and nothing to do with Dobbs.” The felony charge against Watts, and the charges others have faced for miscarriage and stillbirth before her, don’t stem from an abortion ban. At the same time, Dobbs has contributed to “the prosecutorial atmosphere, the stigma and scrutiny” that put people in the crosshairs of the criminal legal system for pregnancy-related decisions and experiences. Both are true: Abortion bans lead to more criminalization, and also aren’t necessary for criminal charges to occur. 

Per Pregnancy Justice’s report, 22 of the 210 cases involved pregnancy loss, such as miscarriage and stillbirth; of those cases, five included allegations related to abortion. “Those cases alleged an abortion procedure, an attempt to end a pregnancy, or an allegation that the defendant researched or explored the possibility of an abortion. One person faced an abortion crime charge and the rest faced homicide, abuse of a corpse, or child neglect charges,” the report states. In some of these cases, the pregnant person’s research or apparent contemplation of abortion are recorded in their case files—possibly to be weaponized as evidence of “intent to kill” their fetus before miscarrying their pregnancies. 

In May 2023, a Black woman in South Carolina named Amari Marsh spent 22 days in jail and faced the threat 20 years in prison for a stillbirth 22 weeks into her pregnancy, on a charge of murder and homicide. One Democratic official who oversaw the prosecution of Marsh said abortion rights “had nothing to do with” her case, even as the police incident report notes that Marsh made an appointment at a nearby Planned Parenthood to potentially take abortion pills. (The report doesn’t state whether she completed the abortion.) A grand jury cleared Marsh of the charges against her in August.

In December, Sussman told Jezebel that according to her tracking, about 97% of criminal charges for pregnancy outcomes have been for “murder, manslaughter, feticide, child endangerment, abuse of a corpse” rather than abortion laws. Nonetheless, hostility to abortion is inextricably linked with the policing of pregnancy. Many of the cases Sussman has tracked involve “suspicion or a question about whether someone intentionally sought to end their pregnancy,” with criminal charges doled out to “punish someone for possibly engaging in this behavior.” Last year, a teenager in Nebraska was sentenced to 90 days in jail for a self-managed abortion to escape an abusive relationship prior to the Dobbs ruling.

The majority of cases uncovered in Pregnancy Justice’s report happened in states that have enshrined fetal personhood in their civil and criminal laws. Alabama accounts for 104 of all cases. Oklahoma accounts for 68, or a third of all cases, while 10 took place in South Carolina, seven in Ohio, and six each in Mississippi and Texas. “Without fetal personhood, pregnancy criminalization could not exist,” the report states. Under fetal personhood, miscarriage, pregnancy loss, and pregnancy, in general, become subject to even greater state scrutiny and, sometimes, criminalization. We’ve been seeing this for years: You can lose a pregnancy after being physically attacked and face manslaughter charges. A pregnant person traveling across state lines without their partner’s consent could be considered “kidnapping.” 

Pregnancy Justice’s report notes that “the movement to enshrine fetal rights takes many forms,” citing abortion bans that recognize that life begins at conception, as well as court opinions—like the Alabama Supreme Court’s February ruling that frozen embryos involved in IVF are “extrauterine children” whose routine destructions qualifies for “wrongful death” lawsuits. The Alabama ruling briefly halted IVF across the state until legislators rushed to pass an emergency law. Where fetal personhood was “once a fringe demand of the anti-abortion movement,” it’s increasingly becoming mainstream, Rivera cautioned. For example, a rash of states have been proposing so-called fetal tax credits to allow families to claim fetuses and embryos on tax credits. Relevant to the rising threats to IVF this year, a coalition of top anti-abortion leaders begged Alabama Gov. Kay Ivey (R) not to sign the aforementioned bill protecting IVF in her state, arguing that these protections “will ultimately harm these families and jeopardize the lives of precious children”—referring, of course, to embryos. The letter says “IVF is not a morally neutral issue.” 

Pregnancy Justice also found that most criminal charges alleged substance use during pregnancy (for legal and illegal substances alike), in what Rivera likens to “an extension of the racist War on Drugs,” which disproportionately polices Black and brown mothers and pregnant people. Just earlier this month, the Marshall Project found that hospitals across the country are using inaccurate pee-in-a-cup drug tests resulting in pregnant people and new mothers losing custody or facing criminal investigation over false positives—including for merely eating poppyseeds. 

Rivera links the surge in substance use-related criminal charges against pregnant people to rising maternal mortality, especially as most pregnant people who face criminal charges are reported to police by health care workers or the family policing system (for example, child protective services). In fact, 121 of the 210 cases Pregnancy Justice documented stemmed from health care workers reporting their patients. The threat of criminalization solely for seeking health care can discourage people from seeking any prenatal care or other potentially life-saving maternal care at all, Rivera warned: “This is what happens when patients are met with criminalization instead of health care.” In 2022, If/When/How’s reporting showed between 2000 and 2020, there were at least 61 cases of people who self-managed their abortions or helped someone self-manage an abortion that “came to the attention of law enforcement.”

Pregnancy Justice’s report this week stresses that, two years after Dobbs, anti-abortion lawmakers are only creating new avenues to criminalize pregnancy outcomes. For example, in 2023 alone, 17 states introduced 22 bills to try to police self-managed abortion. In May, Louisiana signed into law a bill to classify the most common, highly safe abortion pills as a “controlled dangerous substance,” even as one of the pills, misoprostol, is crucial to stop postpartum hemorrhaging and prevent maternal mortality. On top of all of this, the Republican Party’s official 2024 platform advocates for fetal personhood.

Rivera says her organization’s findings show us “the dire consequences” of Dobbs, between the violence and disruption of being insinuated into the criminal legal system, to the growing risk of maternal morbidity and mortality when pregnant people fear that seeking medical help could lead to their arrest. “This is the natural conclusion when you uphold the rights of fertilized eggs and fetuses over the needs, health care, and bodily autonomy of the person who’s experiencing the pregnancy,” Rivera said. “It’s tragically not a surprise.”

 
Join the discussion...