New report shows more than 200 pregnant people have been prosecuted since Dobbs’ decision

Police responded to a call that a pregnant woman had overdosed. When they arrived, they administered Narcan, the life-saving drug that can reverse the effects of an opioid overdose. They then accused the woman of “abusing” her “unborn child,” according to documents obtained by Pregnancy Justice.

This is one of 210 examples of the criminalization of pregnancy that the nonprofit documented in a report released last week that examined police investigations and criminal court records related to pregnant people in the year after the repeal of Roe v. Wade pursued by the Supreme Court with the Dobbs decision. A previous report from the nonprofit showed that more pregnant people were being charged in the decades before Dobbs. The year since has seen the highest number of prosecutions the research team has documented in a single year, report co-author Wendy Bach told Salon.

“The report shows that pregnant people are actually subject to increased surveillance in many ways, particularly when there is a pregnancy loss,” Bach said in a video call.

Most of the cases documented in the report involved general criminal laws aimed at prosecuting pregnant people. Ninety percent of the charges involved some form of child abuse, neglect or endangerment, and in 86 percent of cases prosecutors were required to find no evidence of fetal harm. Instead, those charges could be brought if the defendant is found to have endangered the embryo or fetus, noted Maya Manian, a law professor at American University who specializes in health care and reproductive rights.

“It just makes it easier to bring these charges and criminalize a person for their behavior during pregnancy,” Manian told Salon in a phone interview.

Only one charge involved an abortion-specific crime under a now-repealed law, the remainder included felony murder, drug offenses and one charge of “abuse of a corpse.” While the reproductive rights movement often focuses on abortion, the distribution of these lawsuits shows just how far-reaching the laws passed in recent decades have been to limit the reproductive rights of pregnant people, said Mary Ziegler, a law professor at UC Davis and author of several books, which details the history of US abortion.

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“What [anti-abortion groups] I want to write the idea that a fetus is a person into as many laws and contexts as possible, ultimately saying to the ultra-conservative Supreme Court, “Isn’t it strange that a fetus is not a person in this regard?” Different context ?’” Ziegler told Salon in a telephone interview. “Any prosecution is in some ways a kind of breach in the wall of building this national ban.”

The interconnectedness of the prison system and the health care system around reproductive rights can be traced to the persecution of black midwives in the South in the early 20th century, Dr. Jamila Perritt, President and CEO of Physicians for Reproductive Health.

“Being pregnant, wanting to become pregnant, and caring for your children does not exempt you from the risk of criminalization,” Perritt told Salon in a phone interview. “In fact, based on this report, we see that it actually increases that risk because people are being prosecuted, arrested and charged for things that they might not otherwise be criminalized for.”

Almost all of the cases in this report involved drug use, most commonly methamphetamine and THC, the active drug in cannabis. According to the report, in five cases, the defendants reportedly possessed a medical marijuana card, suggesting that some pregnant people were charged for taking legal medication.

“What we do in these cases is create a sense of disgust that a pregnant person is doing something that threatens the fetus, and we ignore the question of whether the fetus was actually harmed by it,” said Michelle Oberman, a Law professor at Santa Clara University who studies the effects of abortion regulations. “Because if the drug is illegal, we can just say that because of taking that illegal drug while pregnant, she deserves some level of control, maybe an arrest, maybe an interrogation, maybe a prosecution.”

Nearly half of the prosecutions in this report took place in Alabama, while others were documented in Oklahoma, South Carolina, Ohio, Mississippi and Texas. According to the report, nearly three-quarters of the cases involved low-income pregnant people, and 68% of the pregnant people facing criminal charges were white. About 14% of the pregnant women charged in the report were Black, 6% were Indigenous and 4% were Latino, although race information was missing for about 7% of the cases.

Racial disparities are well documented in the healthcare and prison systems and affect many of the pregnant women documented in these cases. Black women are more likely to be tested for illegal substances during pregnancy than white women, despite being less likely to test positive, according to a 2023 study published in JAMA Health Forum. Black and Indigenous mothers are also more likely to have child protective services or a family monitoring system involved in their birth.

“We cannot separate all of this from the economic, racial and gender context in which health care is provided, as it significantly influences people’s decisions to engage in care or not,” Perritt said.

Ultimately, in many of these cases, referring pregnant women to the criminal justice system rather than the health care system harms health outcomes. The states in this study with the highest rates of prosecutions also have some of the worst maternal and child mortality statistics, disproportionately affecting Black and Indigenous mothers who are also over-surveilled inside and outside of health care facilities.

The approach to prosecuting pregnant people for drug use dates back to the crack cocaine crisis of the 1980s, when it was believed that exposure to crack in the womb would lead to a generation of “crack babies.” That assumption, which primarily targeted black mothers, turned out to be false—crack babies don’t exist—but the same stigmatizing attitude has shifted with changes in the drug supply and now targets pregnant people who use opioids and methamphetamine.

The Pregnancy Equity Report recommends strengthening Health Insurance Portability and Accountability Act (HIPAA) protections as a way to reduce the criminalization of pregnancy. In their report, 57% of cases used health care information such as drug testing to create a criminal complaint. While many health care providers believe that reporting this information can connect people to services, the reality often has the opposite effect and drives them even further away from health care, Perritt said.

“This idea that health care facilities or medical providers are safe spaces or safe people is not universal,” Perritt said. “This experience will be shaped by the identities through which people experience oppression.”

Since the study was completed in 2023, Pregnancy Justice’s research has found additional court cases that were not included in this report, and many cases were likely missed in their search, Bach said. As additional reproductive health restrictions continue to take effect, experts agree that the number of criminalizations of pregnancy is likely to continue to rise. For example, a law went into effect this week in Louisiana that classifies the abortion drugs mifepristone and misoprostol as controlled substances and punishes their possession without a prescription with a maximum of five years in prison.

“Whether it’s the reclassification or reclassification of drugs, the attempt by states to criminalize self-administered abortion care, or, as in the case of this report, people being accused of child endangerment for not receiving prenatal care, the number of people “The number of people caught in this web of criminalization will continue to increase,” Perritt said.