Nearly 1,400 prosecutions of pregnant people occurred in the 16 years leading up to Dobbs in 2022, a new Pregnancy Justice report finds.
The war on reproductive justice wages on, and the right to a safe and healthy pregnancy hangs in the balance—according to a new report “The Rise of Pregnancy Criminalization,” by Pregnancy Justice, an organization dedicated to defending “the civil and human rights of pregnant people,” and guided by a reproductive justice framework. Analyzing data from 2006 to 2022, the report offers the first and only comprehensive study of the criminalization of people for their actions while pregnant during the Roe era.
The report shows an alarming rise in pregnancy criminalization, increasing three-fold over the past 16 years. The states where fetuses are recognized as people under criminal law, as decided by state supreme courts, are also the states with the most striking data for prosecutions of pregnancy. Just five Southern states are largely responsible for this increase in arrests: Alabama, South Carolina, Tennessee, Oklahoma and Mississippi.
Anti-abortion politicians have used “fetal personhood” and substance use as excuses for targeting pregnant people under the criminal justice system, the report finds. Proponents of “fetal personhood” claim a fetus is entitled to the same rights and protections guaranteed to citizens under the 14th Amendment. This concept has been wielded as a weapon by anti-abortion activists to advance harmful legislation against pregnant people.
As of July 2023, 11 states have fetal personhood woven into their state constitutions or state laws (including both criminal and civil). In these states, pregnant women have been charged with child abuse, criminal child neglect and endangerment, often due to alleged substance use. In around half of U.S. states, healthcare providers and social workers “are required to report pregnant people who they perceive to be endangering their pregnancies,” the report noted. Mandated reporting opens a direct line of communication between hospitals and law enforcement, only contributing to the disproportionate surveillance and incarceration of marginalized communities.
This is an incredibly “punitive approach” to healthcare, said Lourdes Rivera, president of Pregnancy Justice, during a press conference about the report.
Despite U.S. society shifting to understand substance use as “a mental, physical and public health issue,” Rivera said, conservative states continue to criminalize first, ask questions later. This method not only opposes public health recommendations and guidance from leading medical organizations, but also ignores clear evidence that incarceration fails to encourage any behavioral changes regarding substance use.
The report exposes the distressing experiences that pregnant people have undergone as a result of arrest and prosecution, including “pretrial incarceration, substantial bail, prison time, family separation, mandated drug treatment programs, and continued surveillance during probation and parole.”
Prosecutions Against Pregnant Women Increase Three-Fold
In 2013, Pregnancy Justice published a similar study detailing 413 cases of pregnancy criminalization over three decades between 1973 and 2005. The new report picks up where the last left off, finding that 1,396 criminal arrests occurred in the 16.5 years between Jan. 1, 2006, through June 23, 2022.
The data illustrates a startling increase, with “three times as many cases in half as many years.”
Nearly four in five (79.4 percent) arrests were made in only five Southern states: Alabama, South Carolina, Tennessee, Oklahoma and Mississippi. All five are dominated by the Republican party, which champions itself on anti-abortion legislation, often invoking “fetal personhood” as justification.
According to case information from the report, 18.2 percent of arrests involved Black pregnant people, while 79 percent involved white pregnant people. Black women and women of color continue to receive stricter sentences under the criminal justice system. Regardless of race, low-income women were found to be overrepresented in the data.
“This is not to say that race and racism are no longer factors in pregnancy criminalization,” as noted in the report, but in fact it is the “racist tactics” established during the war on drugs that are now being rerouted to criminalize poor white communities “in the midst of the opioid and methamphetamine epidemics.”
Ultimately, the biggest factors for pregnancy criminalization today are geography and poverty, Rivera said.
A Call to Action
Despite the major concerns brought forth in the report, feminist organizers are not backing down. They see the findings as “a call to action, and anyone working to achieve greater bodily autonomy ought to heed that call,” said Monica Rae Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective.
Simpson, a leader in the reproductive justice movement, said we must challenge the punitive systems which create obstacles for pregnant people to receive the care and autonomy they require. It should be our imperative to ensure that everyone is capable of making independent choices during their pregnancies without anxiety, stigma or criminalization.
Pregnancy Justice has committed to following the criminalization of pregnancy through their Pregnancy Prosecution Tracking Project, a collaborative effort with law schools across the United States. The organization has also developed policy recommendations, as part of their report, for addressing the multitude of issues that fall under the pregnancy criminalization umbrella.
With the unprecedented decision of Dobbs v. Jackson Women’s Health Organization (2022), the number of pregnancy criminalization cases is likely to increase rapidly. Immediate action is necessary to protect pregnant people and their constitutional right to personhood.
If you recently had an abortion, are seeking an abortion, or need legal support for your pregnancy outcome contact the Repro Legal Helpline at (844) 868-2812 for confidential legal information and advice. If you provide or support abortion care and have questions about your legal rights or have been threatened with legal action related to abortion, contact the Abortion Defense Network.
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