Policing Pregnancy: Supreme Court Abortion Ruling Ratchets up Women’s Fears of Prosecution

Several dozen people protested on June 24, 2022, in front of the state Capitol building in Santa Fe, N.M., against the decision by the Supreme Court to overturn the 50-year-old Roe v. Wade ruling, which made abortion legal across the United States. New Mexico is considered a safe haven state and has guaranteed access to abortion irrespective of the ruling. (Mati Milstein / NurPhoto via Getty Images)

This story was originally published by MindSite News and is republished here with permission.

Chelsea Becker was eight and a half months pregnant when she began bleeding profusely, fell unconscious and was rushed by ambulance to a hospital in Hanford, Calif., in September 2019. The 24-year-old, who had struggled for years with a methamphetamine addiction, was distraught to learn her baby had died. Later she awakened to a nightmarish scene. She looked up from her hospital bed and saw her son’s lifeless body set on a table across the room. She was given no opportunity to grieve and cuddle her dead child, whom she was going to name Zachariah. 

The loss of her son was just the beginning of a 16-month ordeal. Unbeknownst to her, staff members at the hospital had run a blood test, which showed methamphetamine in her system, and sent the results to law enforcement, according to court records. Two months after Zacariah’s stillbirth, Becker was arrested and charged with murder. The King’s County district attorney argued that her drug use caused her baby’s death and a judge set Becker’s bail at $5 million. She languished in jail until March 2021, when a higher court dismissed all charges against her. 

In the aftermath of the U.S. Supreme Court’s dismantling of abortion rights, what happened to Becker in California, a state known for laws protective of the rights of pregnant women, is playing out in some form all around the country—with dramatic impacts on the mental health and emotional wellbeing of women of child-bearing age. 

With the high court overturning Roe v. Wade, women and girls in many states could be forced to  carry pregnancies to term, even if the pregnancy is life-threatening (as in the case of ectopic pregnancies, which is the leading cause of maternal death in the first trimester) or if they are grappling with a substance use disorder, or serious mental illness. They could be forced to bear a child even in the case of incest or child rape—the very situation a 10-year-old rape victim in Ohio was faced with under that state’s post-Roe laws. 

Women Arrested or Forced to Undergo Medical Interventions

Even before the court’s rejection of Roe, many pregnant Americans were finding themselves the targets of investigations, prosecutions and other coercive actions. Between 1973 and 2020, the National Advocates for Pregnant Women (NAPW), a nonprofit legal group that was part of Becker’s defense team, documented more than 1,700 cases* of women who lost their babies to stillbirth or miscarriage or were “forced to undergo medical interventions.” Women have even been arrested after a pregnancy loss in which prosecutors found they had searched under “abortion pill” in their browsing history.

*Editor’s note: According to Zenovia Earle of NAPW,”The majority of these cases involve live births with allegations of drug use. The study covers live births with some behavior someone has done to allegedly ‘harm’ their fetus (the majority of the cases involve drugs—prescription or not, but there are also things like falling down stairs, having HIV, not going to the hospital soon enough, attempting suicide, etc.). The 1,700 number also includes pregnancy loss and abortion, as well as forced medical interventions like C-sections.”

In a brief filed with the U.S. Supreme Court in the Dobbs case that overturned Roe v. Wade, NAPW listed examples of women who have been arrested, detained or prosecuted after losing their babies for a range of events during their pregnancies, including not wearing a seatbelt, falling down the stairs, taking prescribed medications, attempting suicide and getting shot in the stomach, in addition to drug use.

Now, as states pass increasingly restrictive laws on abortion, advocates are predicting the number of prosecutions will soar. 

Already, the blaming and prosecution of women whose fetuses die, as well as those who seek an abortion, has caused an epidemic of fear, despair and fury among women of childbearing age, one that is rippling out to their families, friends, partners and other loved ones. They fear that any miscarriage, stillbirth or problem with a delivery or new baby could result in a police report, and possible arrest and prosecution. 

“People have said to me, ‘I really want children. And I don’t feel like I can have children in this climate. I can’t bring a child into this,’” Dr. Julie Bindeman, a Maryland-based psychologist who specializes in pregnancy loss, told MindSite News.

No Space to Grieve

Policing pregnancy loss can compound the agonizing grief and desolation of losing a baby, Bindeman said. In Becker’s case, as in countless others, the young mother was devastated. To help someone heal from the trauma of losing their baby to stillbirth, they should be offered time to hold, kiss and touch their babies, according to Bindeman. Anything someone can do to express their love, whether it’s helping dress or bathe the baby, cuddling it skin-to-skin or getting footprints, handprints or photographs—can help a person deal with bereavement. 

But for Becker, “the experience in the hospital was a dehumanizing, judgmental experience from the start,” said Jacqueline Goodman, one of her attorneys, who said Becker feels too traumatized to talk directly to journalists.  

Becker received no effective counseling to help her through her grief, and her suffering was compounded when she lost custody of her youngest living son while in jail. She wrote in written testimony for an April 2022 hearing on a California bill that would prohibit—among other things—anyone being subject to civil or criminal liability “based on their actions or omissions with respect to their pregnancy” or pregnancy outcome. 

“Even with the counselors at the jail, I was afraid anything I might have said to them would be used against me in court,” Becker wrote. “So I suffered alone.”

Doing so “makes it go from a nightmare, to living in a horror movie, where you are under a microscope and you can’t grieve, because everyone is watching your every move as a way of potentially collecting evidence to be used against you,” said Bindeman. “It makes it hard to find support. How do you trust people? It creates a larger potential mental health crisis.”

The overturning of Roe triggered laws enforcing abortion bans in thirteen states, including Alabama, Missouri, Ohio, Mississippi and Texas, according to the Guttmacher Institute, a reproductive health research and advocacy organization. 

new study in the American Journal of Obstetrics and Gynecology shows the impact of such laws. In September 2021, two Texas laws went into effect. One made it a felony for physicians to administer medication to end a pregnancy even when there’s a maternal medical emergency. The other prohibited abortion if fetal cardiac activity can be detected. (Granted, at six weeks, there is no heart, nor heartbeat. “What is interpreted as a heartbeat in these bills is actually electrically induced flickering of a portion of the fetal tissue that will become the heart as the embryo develops,” said Dr. Ted Anderson, former president of the American College of Obstetricians and Gynecologists, in 2019.)

The study researchers compiled cases of 28 women who sought emergency care in two hospitals for ruptured placentas—a potentially life-threatening emergency, and were sent home to wait an average of nine days instead of getting care.

Women at Risk, Doctors Facing ‘Moral Distress’

Melissa Rosenstein, M.D., the medical director of quality and patient safety for obstetrics at the University of California San Francisco, was not involved in the study but was outraged by the results. She said the women in question were all at high risk of losing their babies, were likely suffering emotionally, and were denied standard care. Their doctors, too, were under “moral distress,” Rosenstein told MindSite News.

The doctors knew what the right thing to do was, but they couldn’t do it, Rosenstein noted; instead, they were forced to make their patients suffer. After patients were sent home, Rosenstein said, their health was clearly endangered.

“Some people started bleeding. Some people got infected. Some people went to the ICU. You shouldn’t have to go to the ICU—going to the ICU and not dying is not an okay outcome when you could have avoided that.” 

Marlena Stell, 42, of Conroe, Texas, told the Washington Post she was advised by her doctor that her baby didn’t have a heartbeat and that she should miscarry at home. “It just was emotionally difficult walking around, knowing that I had a dead fetus inside,” she said.

For Rosenstein, such examples raise larger issues. “If your baby has leukemia and needs a bone marrow transplant, the court cannot force you to donate your bone marrow to your baby,” she said. “But we are forcing women to donate their entire bodies to a fetus that may or may not turn into a baby that they may or may not want.” 

She also is concerned that women who are having a miscarriage might be afraid to seek medical care out of fear that police might investigate them because they’d had a drink or smoked a cigarette. “That just doesn’t happen in any other realm,” she said. 

Chilling Effect

The chilling effect on care is also front and center in Indiana, a state that grabbed headlines in 2012 for charging a pregnant woman, Bei Bei Shuai, with murder because of a stillbirth she suffered following her attempted suicide. Just weeks ago, Indiana Attorney General Todd Rokita (R) went on Fox News and threatened to prosecute Dr. Caitlin Bernard, the gynecologist who performed an abortion on the 10-year-old rape victim from Ohio. He also insinuated the doctor had failed to report the abortion, which was untrue and which he should have known before appearing on television and threatening her medical license; she had in fact reported the procedure before the state’s reporting deadline and indicated the 10-year-old had suffered abuse.

On Aug. 5, Indiana became the first state in the country to pass a new abortion ban in the aftermath of the Dobbs decision. The Republican-dominated legislature voted to ban abortions except in cases of rape, incest, lethal fetal abnormality, or when the procedure is needed to prevent severe health risks or death. Gov. Eric Holcomb (R) signed the bill moments after it passed.

In March, the state legislature had added language to its health code requiring all healthcare workers and employees in a clinic offering abortion to report to police if they suspect a pregnant person was coerced to have an abortion. That now includes professionals who normally have confidential relationships with patients such as psychologists, physicians, surgeons, paramedics and nurse’s aides, as well as volunteers. A person charged with coercion faces a Level 6 felony, which could mean up to 30 months in prison.

Reverend Marie Siroky, a minister with the United Church of Christ in Gary, Indiana, and a self-described “reproductive rights chaplain,” told MindSite News that women she counsels are frightened at the prospect of being investigated if a problem emerges. “They are in fear of what could happen to them, if there is ‘something wrong with the baby,’ will they be prosecuted?” 

Siroky outlined what could go wrong in a letter to the legislature opposing the amendment: 

“Consider a couple who has tried for years to become pregnant, who prepare for a birth only to learn the fetus will not be viable. Following their faith, they make the painful decision to terminate. She’s tearful, her husband is stoic, strong in support. Walking into the clinic a volunteer observes their expressions and suspects she is being coerced, and contacts law enforcement. The couple returns home for the mandatory waiting period, yet the suspicion initiates a police response, which could result in her family being investigated amid their tragedy.”

They are in fear of what could happen to them, if there is ‘something wrong with the baby,’ will they be prosecuted?

Reverend Marie Siroky

This fear is placing barriers between women and health providers, including therapists.

Dana Sussman, deputy director of the National Advocates for Pregnant Women, advised women in states with statutes that police pregnancy: “If you have had ambivalence towards your pregnancy at some point during your pregnancy, you should not share that with medical providers if you’re experiencing a pregnancy loss, because that information has been weaponized against our former clients.” 

Chronic Patients Denied Medication

State laws making abortion illegal, which in some cases specifically outlaw medications that can be used to induce abortions, are also creating potential health hazards for others who are not pregnant. Methotrexate, an inexpensive generic medication used for a wide variety of autoimmune conditions, including lupus and rheumatoid arthritis, is now being withheld from some patients because it also can be used to terminate ectopic pregnancies. A Virginia lupus patient, Becky Schwarz, got a message from her doctor that “we are pausing all prescriptions and subsequent refills of methotrexate,” the Los Angeles Times reported.

The Arthritis Foundation, a nonprofit research and advocacy group, issued a statement calling for “unencumbered access” to methotrexate and is gathering cases of people who can no longer obtain it.

After battling with addiction, incarceration, the death of her baby and losing custody of her remaining child, Chelsea Becker, now 26, is working to turn her life around, said Jacqueline Goodman, one of her attorneys. With help from advocates, she’s been linked up to services and support, and has been able to carve a way forward. Perhaps most importantly, she’s become an advocate for herself and other women.

“My experience with the justice system in King’s County was detrimental to my mental health and it failed me deeply,” she wrote in testimony presented at a hearing of the California State Assembly Judiciary Committee. “I hope that in the future, no woman will ever be prosecuted for losing a pregnancy.”  

U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.

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