Post-Roe America Will Lead to Increased Criminalization of Pregnant Women. Here’s How to Protect Them

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Georgia state Rep. Erica Thomas at the Georgia State Capitol building on May 21, 2019. Georgia is one of 38 states with a fetal personhood provision, which call into question the legal standing of women. (Elijah Nouvelage / Getty Images)

Since the Supreme Court overturned Roe v. Wade, at least eight states have banned abortion outright, stripping away a constitutional right from millions of women, with more restrictions on the way. These laws grant state lawmakers and prosecutors jurisdiction to criminalize women in cases of illegal abortions, miscarriages and many other instances of so-called child abuse.

In a grim national moment, National Advocates for Pregnant Women (NAPW) has launched a practical resource guide to educate prosecutors, police, healthcare providers and welfare workers on how they can protect pregnant women, as well as themselves, from criminalization. With the guide, NAPW hopes to “equip each actor with knowledge about the realities and consequences of pregnancy-based prosecutions, as well as an understanding of their role and the powers they have to disrupt this cycle.”

Law Enforcement Can ‘Safeguard the Rights of Pregnant Women’

Since 1973, NAPW has recorded more than 1,700 instances of arrest, detainment, prosecution, conviction or forced medical intervention of women as a result of their pregnancy or its outcome. The rate has rapidly increased in the last 15 years. Now, the fall of Roe has “open[ed] the door to even more arrests, state surveillance and rights deprivations of pregnant people,” according to NAPW—inevitably leading to more murder and abuse charges for patients and providers.

At least 38 states allow prosecutors to use fetal protection laws, which recognize a fetus as a legal victim, granting human rights to unborn embryos or fetuses at the expense of women. These laws dictate classify certain activities while pregnant—like traveling for work or using medical marijuana under the supervision of a doctor—as felony ‘child abuse,’ and pregnancy loss as ‘murder.’ Subsequent cases have targeted pregnant women for self-managed abortions; not using a seatbelt; falling down the stairs; declining medical advice; or even for choices made before knowing they were pregnant.

NAPW said law enforcement—especially prosecutors—have the authority to exercise discretion in criminal cases. By choosing which cases to investigate and charge, they can implement policies and practices that can “safeguard the rights and well-being of pregnant women and their families.”

NAPW demands law enforcement take the following steps:

  • Consider substance use disorder a public health issue—not a crime. Oppose efforts to use the criminal system as a path to substance use treatment. 

  • Review the science behind pregnancy loss and the risks associated with substance use during pregnancy. Pregnancy loss is extremely common. Scientific research does not support the belief that prenatal exposure to drugs causes miscarriage or stillbirth. Social determinants of health—poverty, racism and lack of access to adequate healthcare before pregnancy—are far more indicative of pregnancy outcomes.

  • Consider the impacts of arrest and incarceration. Women are more likely to be the primary caregivers of their children. These responsibilities and the lasting effects of separation for children are rarely taken into account when determining the length of incarceration. More broadly, arrest alone has damaging effects—a lifetime of increased chronic stress, stigma, lowered employability and income, and financial burdens.  

  • Consider collaborating with and seeking input from additional stakeholders. Prosecutors should be familiar with the services and resources of other counties and agencies, public or private, that could assist in the evaluation of cases; and consider seeking advice and collaborating with associations of prosecutors that oppose the prosecution of pregnancy loss.

This obsession with policing the lives and wombs of women, especially of color, is obscene.

National Advocates for Pregnant Women

Black women have been historically denied bodily autonomy. In her book Policing the Womb: Invisible Women and the Criminalization of Motherhood, Michele Goodwin argues understanding the dehumanization of policing pregnancy requires engaging with broader, disturbing social and political issues—slavery, mass incarceration, the U.S. drug war, welfare reform and the country’s largely hidden history of eugenics.

Today, Black women are more likely to be reported to child welfare agencies, more likely to have their children taken out of their care and more likely to be drug tested than other women, according to NAPW.

Jamila Perritt, director of Physicians for Reproductive Health, said the medical field is a central space for pregnancy criminalization. At a NAPW press conference last month, she shared her best advice on how to protect women: “Don’t call the police!”

Healthcare Providers Must Continue Care and Discretion

Healthcare providers are obligated to act in the best interests of their patients. But doctors and nurses in states with bans and restrictions are reporting a chilling effect in the medical field, and many fear the repercussions of performing procedures and/or the failure to report. These conditions “create dangerous and life-threatening barriers to access,” according to NAPW. 

Medical center drug and alcohol testing, mixed with confusion around mandatory reporting laws and unconscious racial bias, put women at risk. These patterns lead to cases like Ferguson v. Charleston, in which hospital workers drug tested pregnant women without a warrant or their consent for nearly five years, feeding results to police and aiding prosecutors. 

NAPW asks healthcare providers to consider the following:

  • Be familiar with mandated state reporting laws and applicable hospital guidance on drug testing and understand the potential consequences of reporting the results of such tests to state authorities. Drug testing is rarely clinically indicated and reporting is often not legally required.

  • Understand that urine and/ or biologic testing is not an effective means to diagnose potential substance abuse. Pregnancy itself does not provide a medical justification for testing.

  • Seek information about substance use only when medically necessary. Healthcare providers should make an individualized assessment, and ask themselves if and how information about substance use would alter their patients’ care.

  • If medically necessary, urine and other biologic testing should only be performed with the patient’s written informed consent. Pregnant women should be informed of the potential ramifications of a positive test result, including any mandatory reporting requirements.

  • Engage with their hospitals’ risk management teams to assess clear and appropriate guidelines and reporting. Healthcare providers should never make reports to child welfare authorities as a way to connect a patient with community resources. 

  • If required to make a report, healthcare providers should understand the consequences of such reporting. They should be familiar with community resources that may be able to assist the family and be cognizant of implicit and explicit biases. They can also provide defense attorneys with important background information that may help to prevent a family from being separated or a patient from being criminally punished. 

Child Welfare Workers Can Disrupt Pregnancy Criminalization

Common welfare system practices also contribute to overpolicing, said NAPW. Since the 1980s, welfare agencies have separated children from their parents based on supposed substance abuse at alarming rates. (Such histories are detailed in the NAPW guide.)

At least 24 states have extended substance-related child abuse statutes to include fetuses. In Wisconsin, pregnant women can be held against their will “based only on the suspicion that the pregnant woman has or may in the future consume alcohol or a controlled substance.”

Continuing to arrest, fine and imprison pregnant people will have a disastrous impact on both neonatal and maternal health. “These prosecutions make pregnant women less likely to seek needed medical help out of fear that their doctors will report them to child welfare or law enforcement authorities,” according to the NAPW report.

Child welfare workers have the power to disrupt this cycle. The toolkit offers the following guidelines for these workers:

  • Treat substance use disorder as a health issue, not child abuse. A person’s drug use is not an indicator of that person’s ability to parent. 

  • Prioritize support and services over removal in the interest of infant health. Research shows that keeping children with their families results in better long-term outcomes for the children. The best practice for treating substance-exposed newborns is to keep the newborn and mother together, encourage breastfeeding and provide trauma-informed care.

  • Understand the role of discrimination and bias in referrals to child welfare agencies. Racism and implicit and unconscious biases lead to Black women being disproportionately referred to child welfare agencies for perceived or actual substance use disorders. 

  • Inform parents of their rights during a child welfare investigation and/or proceeding. A harm-reduction framework is crucial. Welfare workers have to reject the notion that withholding information about parental rights during an investigation or proceeding is in the best interest of the child.

With this resource, NAPW hopes to educate officials on how to protect pregnant people from the legal system. “Now is not the time to give up,” said NAPW in response to Roe’s downfall. “The opportunities for potential allyship, collaboration and solidarity are numerous.”

Sign and share Ms.’s relaunched “We Have Had Abortions” petition—whether you yourself have had an abortion, or simply stand in solidarity with those who have—to let the Supreme Court, Congress and the White House know: We will not give up the right to safe, legal, accessible abortion.

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About and

Michelle Moulton is an editorial intern with Ms. and a rising senior at Smith College. She is double majoring in the study of women & gender and sociology. Her beats include reproductive justice, domestic worker history, domestic violence and police abolition.
Wyoming McGinn is an editorial intern at Ms. and a senior at Smith College studying women and gender. She is interested in reproductive and environmental justice journalism.