A stunning new report details how, in the first year after abortion protections afforded by Roe v. Wade were overturned by the U.S. Supreme Court, hundreds of people across the country were criminally charged for actions relating to their pregnancies.
The report from Pregnancy Justice, an organization that seeks to “defend the civil and human rights of pregnant people,” notes that the 210 criminal charges recorded during the time period of June 2022 to June 2023 represent the highest number of pregnancy-related criminalizations documented in U.S. history.
The number of criminalizations within that time frame is likely higher than what was documented, as researchers recognize they may have missed some cases — indeed, after the report was finalized, researchers uncovered additional instances in which people were criminally charged for actions related to their pregnancies. The report also focuses solely on criminal charges, and doesn’t include investigations into pregnant people or harassment of those individuals by law enforcement agencies across the country.
The rise of these prosecutions is “directly tied to the radical legal doctrine of ‘fetal personhood,’ which grants full legal rights to an embryo or fetus, turning them into victims of crimes perpetrated by pregnant women,” Lourdes Rivera, president of Pregnancy Justice, said in a statement. States’s prosecutors were “emboldened … to develop ever more aggressive strategies to prosecute pregnancy” in the wake of Roe being overturned.
Most charges were related to substance use by pregnant people. Importantly, some people who use drugs while pregnant are unaware of their pregnancy status, while others who use drugs lack the resources to quit. In either case, law enforcement rarely sought to help pregnant people in that situation, instead taking a punitive approach. In some cases, people were criminally charged for using marijuana while pregnant, even though they had a medical prescription card from their health care providers.
In many cases, the report noted that drug charges issued by prosecutors against pregnant people didn’t necessarily mean that a person had used drugs at all — the charges were “allegations, not facts,” researchers said.
“Just because the prosecutor or investigator claims, for example, that a person took a particular drug during pregnancy or that the substance harmed the fetus does not mean that is true,” the report stated.
Several women who appear to have faced serious health conditions, devastating pregnancy losses, and enormous trauma, were met not with offers of care but threatened with punishment for finding themselves in allegedly dangerous situations or allegedly not seeking help quickly enough in traumatic moments.
Other charges detailed in the report indicate a disturbing trend of prosecuting pregnant people for subjective rationales.
In three cases documented by Pregnancy Justice, prosecutors alleged that the act of breastfeeding was enough evidence to charge a person with a crime. Twenty-two cases involved criminalizing pregnant people based on a “fetal or infant demise and allegations regarding conduct concerning pregnancy, pregnancy loss, or birth.”
Five charges detailed in the report also related to a person attempting to get an abortion, researching how to get an abortion or simply mentioning a desire to undergo the procedure.
The report makes several suggestions for reducing the criminalization of pregnant people, including in cases where drug use took place.
“Drug overdoses are the leading cause of maternal mortality in multiple states in the United States and rates of substance use disorder among pregnant and postpartum women are growing. Investment in non-punitive, voluntary, and confidential programs and in-patient treatment centers for pregnant people, where they can continue to stay with their newborns and receive familial support, is critical to saving lives,” the report said.
The report concludes:
We build toward a future without criminalization and where everyone can access the healthcare and support they need to live and thrive, free from discrimination, state violence or coercion, family separation, or stigma.
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