When Any Birth Outcome Can Be a Criminal One

Right-wing prosecutors warp child neglect, abuse and endangerment statutes to criminalize behavior during and after pregnancy.

Protesters march near the Supreme Court in support of gun control and abortion rights protection on May 28, 2022. (Tasos Katopodis / Getty Images)

In August of 2019, 35-year-old Julia (name changed for privacy) birthed a healthy baby girl at an Oklahoma hospital. Her doctors tested the newborn’s meconium, its first bowel movement, for a variety of substances; the test for marijuana came back positive.

Meconium testing is often done without the consent of a newborn’s parent(s), and it can detect exposure to marijuana from months earlier. It is both unclear whether Julia consented to the test and whether she had used marijuana in the weeks before giving birth. But it is clear that Julia had a medical marijuana card that authorized her use in the state of Oklahoma, and it is also clear that her doctor confirmed that she could continue her use during pregnancy. 

Neither fact mattered to the state, and both the local police department and family welfare apparatus (Oklahoma Department of Human Services) launched investigations. By July 2020, Julia was arrested and charged with a felony count of child abuse. The charges against her were dropped by early 2023, but it came after years of legal costs, fears of losing her child, and threats of further incarceration.

Julia’s story is one of 1,396 covered in a report released by Pregnancy Justice last month. The report identified cases of pregnancy criminalization in the United States between January 2006 and June 2022 and found that the number of arrests in that period was three times higher than in the 33 years prior. (Lynn Paltrow and Jeanne Flavin identified only 413 similar arrests between 1973 and 2005.)

Over 80 percent of these cases involved a live birth, around 82 percent of which resulted in a healthy baby—like Julia’s. In these cases, the materials contained “no mention of negative health outcomes.” And yet, just as in Julia’s story, charges were filed.

Essentially, Julia and others were arrested for engaging in behavior a prosecutor thought would pose a risk to fetal health. Almost 84 percent of all cases involved charges of criminal child neglect, endangerment and/or abuse. The report clarifies that, generally speaking, neglect and endangerment statutes do not require evidence of harm; rather, “they require only that someone knowingly or recklessly acted in ways that risked harm.” Child abuse laws are more stringent but may only require “imminent risk of harm.” 

The lack of harm requirement, the report explained, “is key to criminalizing pregnancy, in part because it allows state actors to use exposure to substances alone, rather than any actual harm, as a basis for criminalization.”

The relationship between exposure to a certain substance and risk of harm need only be a theoretical one. In Julia’s case, her doctor confirmed that it was safe to use marijuana while pregnant. (A 2022 Pregnancy Justice document says the same: “Cannabis use during pregnancy has not been proven to cause any specific or certain harm to a fetus.”)

The substance to which a fetus is “exposed” in utero also need not be illegal for charges to be filed. Julia had a medical marijuana card and used it in that capacity (under her doctor’s care). Indeed, 90 percent of the cases in the report involved allegations or evidence of substance use, and a “striking one-quarter of cases involved alleged use of legal substances.” 

Julia was one of several arrested on child neglect, endangerment and/or abuse charges for using marijuana during pregnancy in Oklahoma. An investigation by The Frontier provided insight into the criminalization of individuals who give birth to healthy babies after consuming a substance legally under the supervision of a doctor. One of two prosecutors filing most of the charges in Oklahoma between 2019 and 2022, Brian Hermanson, appeared to be imposing his own personal, non-medical judgment. If these women “make bad decisions about using drugs while they’re pregnant, they’re probably going to make other bad decisions when raising the child,” Hermanson said.

In order for prosecutors like Hermanson to preemptively punish those they think will be unfit parents, they must get creative with the law. The Pregnancy Justice report explains that child neglect, abuse, and/or endangerment statutes, and others used to criminalize behavior during and after pregnancy (including mishandling of human remains, manslaughter and failure to report a death), were applied in many of these cases “beyond their original intent to criminalize otherwise legal acts and omissions by pregnant people.” After all, child neglect, abuse and/or endangerment laws do not start out as fetal neglect, abuse and/or endangerment laws.

Prosecutors are not the only ones who initiate these inquiries—meaning, they are often not the first ones to monitor, and subsequently raise questions about, a pregnant woman or person’s behavior.

When the information was available, Pregnancy Justice catalogued how a case came to the attention of law enforcement. Most commonly (in 33.8 percent of cases), medical professionals reported behavior or substance test results to police—or to social workers who then reported to police. In other cases, police launched investigations when they recovered fetal remains, received other anonymous tips, drug tested pregnant individuals on probation or under other forms of state monitoring, found drugs while searching a vehicle a pregnant person used or was sitting in, or heard directly from a pregnant person’s friend, parent or intimate partner. 

Pregnant women in regular contact with the state—via the family welfare system, certain medical professionals, other mandatory reporters, or law enforcement directly because of past infractions or membership in a surveilled community—are at greater risk of criminalization. It is unsurprising, then, that 84 percent of cases in the report involved a pregnant woman or person who could not afford a lawyer. Poor women and others must “face increased surveillance and scrutiny by state actors in order to access care and assistance,” which means that their behavior during pregnancy can be routinely monitored.

“Pregnant people who can afford private physicians and avoid public services are likely better able to avoid testing, detection, and reporting,” read the report.

But even if one can avoid all arms of the state, there is still the danger of a community member—friend, parent, intimate partner, or other acquaintance—reporting to the police.

Celeste Burgess, who was sentenced to 90 days in prison after taking abortion pills. … None of the laws under which she was charged were passed to target those who get abortions.

The danger of criminalization for anyone who is or can get pregnant is bound to intensify after Dobbs. This Pregnancy Justice report does not include any charges filed after the Dobbs decision was released. It does, however, very clearly paint a picture of what we might expect.

Undoubtedly, without the protection of Roe, states will be increasingly comfortable flirting with fetal personhood, enacting legislation that punishes those who risk the health of a fetus and/or expanding prosecutions of those who do under existing laws. The state can criminalize any birth outcome—whether it is miscarriage, stillbirth, a healthy baby or abortion. 

Of the cases in the report, only 1.2 percent involved charges specifically related to illegal abortion; these charges ranged from self-managing an unauthorized abortion to using herbs to induce miscarriage. Charges explicitly for illegal abortion will likely continue to be rare, at least for people who get abortions. Most post-Dobbs abortion bans only criminalize providers or those who aid and abet the provision of abortion.

But abortion seekers will get punished anyway—just under different laws. In fact, they already have. Celeste Burgess, who was sentenced to 90 days in prison after taking abortion pills at 17, was charged with removing, concealing or abandoning a human body; concealing the death of another; and false reporting. None of the laws under which she was charged were passed to target those who get abortions. Yet, according to the Pregnancy Justice report, they have been used repeatedly to target individuals whose later miscarriages or stillbirths were reported to police.

If prosecutors have charged individuals like Julia who ingested medical marijuana during pregnancy (and had a healthy baby) with child neglect, endangerment and/or abuse, they can, will and have charged others for taking mifepristone, Valium or not wearing a seatbelt during pregnancy

Pregnancy Justice concludes that Dobbs “will further accelerate an existing crisis, putting anyone who is pregnant or has the capacity to become pregnant at even greater risk of arrest, prosecution, and conviction.”

The state will punish those who want, and those who do not want, to be pregnant. The state will punish those who try, and those who successfully get, abortions. And the state will punish those individuals who are reported.

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. Another such resource is Pregnancy Justice, which provides defense for people who face investigation, arrest, or detainment related to any pregnancy outcome or who were forced to have a surgery because of pregnancy.

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Morgan Carmen is in her third year at Harvard Law School, where she is the president of the Alliance for Reproductive Justice. She is an intern with Ms. Studios and is based in Cambridge, Mass. Find her on Twitter @morgancarmen_.