Efforts to treat fertilized eggs, embryos and fetuses as separate constitutional persons have provided the basis for the largest number of arrests of pregnant women in any single year.
New research reveals at least 210 women faced criminal charges because of their pregnancies or pregnancy outcomes in the year after Dobbs—the highest number of documented prosecutions in a single year. The real number is likely much higher, according to new research released by Pregnancy Justice.
“Our new report shows how the Dobbs decision emboldened prosecutors to develop ever more aggressive strategies to prosecute pregnancy, leading to the most pregnancy-related criminal cases on record,” said Lourdes A. Rivera, president of Pregnancy Justice. “This report demonstrates that, in post-Dobbs America, being pregnant places people at increased risk, not only of dire health outcomes, but of arrest.”
In the report, “Pregnancy as a Crime: A Preliminary Report on the First Year After Dobbs,” Pregnancy Justice found that the majority of cases occurred in “states that have enshrined fetal personhood in their civil and criminal laws,” such as Alabama (104 cases), Oklahoma (68 cases) and South Carolina (10 cases)—all states that have near-total abortion bans and some of the worst maternal and infant health outcomes.
“Fetal personhood” is the legal fiction that fertilized eggs, embryos and fetuses are already separate persons with rights that government officials can protect by controlling the bodies and lives of pregnant women. It gives fertilized eggs, embryos and fetuses a right no born human being possesses—the right to use the body of another human being without their consent, even if that use harms pregnant women’s health or costs them their lives.
“We learned that prosecutions in the year after Dobbs represent a high-water mark in pregnancy criminalization, following from increased suspicion and surveillance of pregnant people,” said Wendy Bach, principal investigator of the report and professor at the University of Tennessee College of Law.
The report is a reminder that the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization has consequences that go way beyond abortion.
Most of the charges involved allegations of child abuse, neglect or endangerment (198 cases), but they also included alleged homicide where there is a pregnancy loss (9), drug-related crimes (8) and abuse of a corpse (1).
In 203 cases, criminal charges were based on alleged pregnancy and the use of a controlled substance. In 31 cases, the only controlled substance identified was THC (marijuana), and in five of those cases the women were taking legally prescribed medical marijuana. None of the drugs in these cases were abortifacients.
In one case, police arrested and jailed an Alabama woman for chemical endangerment of a child based on the claim that she was pregnant and using drugs. However, she was not pregnant—a fact acknowledged by law enforcement only after she had been incarcerated for more than 36 hours, suffering the trauma, humiliation and financial losses associated with being arrested and locked up in jail.
Where a pregnancy loss occurs and there is a positive drug test, prosecutors in some cases have brought homicide-related charges based not on any evidence of causation but rather on the coincidence of a pregnancy loss, which occurs in 15-25 percent of all pregnancies, and evidence of any drug use.
In 191 cases (over 90 percent), the charges did not require any “proof” of harm to the fetus or newborn, and in the overwhelming majority of cases, no harm is alleged. Relying on child endangerment laws that require only something identified as a potential risk of harm, or laws like Alabama’s that have been used to make non-harmful fetal exposures per se crimes, women are arrested, prosecuted and convicted based on nothing more than pregnancy and a positive (typically unconfirmed) drug test.
Meanwhile, prosecutors are not bringing criminal cases against companies and policymakers who release toxic agents into the environment that have clear causal connections to fetal harm. They have not, for example, targeted the government officials in Flint, Mich., who knowingly switched the city’s drinking water supply to a source contaminated with lead, tripling the incidence of dangerously-high blood levels of lead in the city’s children.
Just a few of the cases in the Pregnancy Justice report involved abortion. Of the 22 cases where prosecutors brought criminal charges against women experiencing a pregnancy loss, only five mentioned abortion, an attempt to end a pregnancy or that the defendant researched or explored the possibility of abortion.
Despite the tendency of people to focus on possible or actual criminalization of just one pregnancy outcome—abortion—only one case involved an abortion-specific crime under a now-repealed portion of a Nevada criminal abortion statute.
A significant number of the cases were based on prosecutors’ after-the-fact opinions on when and how pregnant women should have interacted with healthcare providers.
- In 15 cases, the charging documents alleged women failed to obtain adequate prenatal care, and two alleged noncompliance with a medical provider’s recommended treatment.
- Ten cases referred to failure to seek help during or after birth.
- Three condemned mothers for breastfeeding their infants.
Pregnant women are in a special class of persons, under an exacting microscope and subject to arrest for otherwise non-existent crimes, such as “illegal breastfeeding” or “unlawful delays in obtaining health care.”
Women’s reluctance to seek medical care is understandable, given the frequency with which medical providers share information about their pregnant patients with child welfare authorities and police. In over one half of the cases (121 out of 210 cases or 57 percent), police relied on information obtained or disclosed in a medical setting. In 114 cases (54 percent), the “child welfare” system was involved.
“Out of fear of criminalization and family separation, many pregnant people avoid healthcare settings, even when they desire care,” according to the report.
In a recent Georgia case, while experiencing a miscarriage, Candi Miller refused to go to a hospital because she feared criminal prosecution. She died in her bed, cradling her 3-year-old daughter.
Socioeconomic class played a major role in who the police targeted with criminal charges. The Pregnancy Justice report revealed that the vast majority of people targeted had low-incomes (78 percent). Meanwhile, prosecutions now mirror the overall population by race: 143 were white (68 percent), 30 were Black (14 percent), 13 were Native American (6 percent), nine were Latinas (4 percent), and in 15 cases there was no information regarding race or ethnicity.
The ‘Fetal Personhood’ Fiction Underlies the Criminalization of Pregnant Women
Growing efforts to treat fertilized eggs, embryos and fetuses as separate constitutional persons—encouraged by the Supreme Court’s decision in Dobbs and planned for by Project 2025—have provided the basis for the marked increase and largest number of arrests of pregnant women in any single year.
According to the report, five of the six states with the highest number of criminal prosecutions of pregnant women have the “fetal personhood” fiction enshrined in their civil and criminal laws through judicial decisions, statutes or constitutional amendments.
The fetal stage of pregnancy begins during the 11th week of pregnancy (nine weeks after fertilization), but the idea of “fetal” personhood is used to justify prosecutions of women in earlier stages of pregnancy when no fetus is present. Prosecutors use the legal fiction of “fetal personhood” to justify criminalization of pregnant women at every stage of pregnancy.
While laws that criminalize abortion have proliferated after Dobbs, abortion laws have never accounted for more than a handful of pregnancy-related criminal prosecutions.
Instead, by imaging fertilized eggs, embryos and fetuses as potential crime victims and pushing the boundaries of other criminal statutes, prosecutors are charging pregnant people with general crimes like child abuse, neglect, endangerment or homicide. These charges normalize the policing of pregnant people’s behavior, mental health and medical decision-making.
“It is about controlling and punishing pregnant people,” said the Pregnancy Justice report.
“To turn the tide on criminalization,” said Rivera, “we need to separate healthcare from the criminal legal system and to change policy and practices to ensure that pregnant people can safely access the healthcare they need, without fear of criminalization.”
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