6 states accounted for the majority of cases documented by researchers.

BY: ANNA CLAIRE VOLLERS 
STATELINE

In the year after the U.S. Supreme Court dismantled the constitutional right to abortion in June 2022, more than 200 pregnant women faced criminal charges for conduct associated with their pregnancy, pregnancy loss or birth, according to a new report.

The report was produced by Pregnancy Justice, a nonprofit that advocates for the rights of pregnant people, including the right to abortion. Researchers in multiple states documented 210 cases of women being charged for pregnancy-related conduct in 12 states from June 24, 2022, to June 23, 2023, the first year after the U.S. Supreme Court eliminated the constitutional right to an abortion, throwing the issue to the states.

The majority of charges alleged substance use during pregnancy; in two-thirds of cases, it was the only allegation made against the defendant. Six states — Alabama, Mississippi, Ohio, Oklahoma, South Carolina and Texas — accounted for the majority of cases documented by researchers.

The new report utilizes improved data collection, making comparisons with previous versions difficult. But “what we found was even more of an acceleration in pregnancy criminalization as compared to before” the Supreme Court’s ruling, said Lourdes Rivera, president of Pregnancy Justice. Rivera said she thinks that in states with abortion bans or new restrictions, there is more scrutiny of pregnancy loss.

However, almost none of the prosecutions documented by researchers were brought under state abortion laws. Instead, researchers found that law enforcement most often charged pregnant women with crimes such as child neglect or endangerment, interpreting the definition of “child” to include a fetus. In doing so, authorities relied on a legal concept called fetal personhood — the idea that a fetus, embryo or fertilized egg has the same legal rights as a person who has been born.

“If we focus only on abortion laws, we miss a crucial part of the picture in the fact that pregnant individuals are being criminalized for allegedly endangering their own pregnancies, for pregnancy loss and, in some cases, for conduct related to abortion,” Rivera said. “What’s driving pregnancy criminalization is the expansion of fetal personhood.”

Charges of child abuse or endangerment carry stiffer penalties — higher fines and lengthier prison sentences — than the low-level drug charges the women likely would have faced had they not been pregnant.

“Pregnancy-related prosecutions don’t generally charge crimes that, on the face of the criminal statute, have anything whatsoever to do with pregnancy,” said Wendy Bach, a professor at the University of Tennessee College of Law and the report’s principal investigator. “Instead, using the idea of fetal personhood, or more specifically the idea that the fetus can be the victim of a crime perpetrated by the pregnant person, they use that theory to charge general crimes.”

The push for charges

Conservative lawmakers in Alaska, Illinois, Missouri, South Carolina and West Virginia introduced fetal personhood bills in the most recent legislative session, though none made it out of committee. In Nebraska, dueling amendments will appear on the ballot. One would codify the right to abortion until “fetal viability,” about 24 weeks. The other would amend the state constitution to restrict abortion to 12 weeks and protect “unborn children” in the second and third trimesters of pregnancy.

Proponents of charging pregnant women for conduct that could harm a fetus argue that the threat of prosecution incentivizes the women to get care or treatment for substance use disorders.

Jody Willoughby, the Republican district attorney in Etowah County, Alabama, which has long had some of the highest numbers of pregnancy-related arrests in the country, has said publicly that his office prosecutes cases because doing nothing would make his office “an enabler of a deadly addiction, complicit in the abuse of a child, and ultimately lead to the death of a mother,” local news outlet AL.com reported in 2022. Willoughby did not respond to Stateline’s requests for comment.

But critics say the arrests and prosecutions deter people from seeking care for fear they’ll be arrested or lose custody of their children. The majority of defendants identified in the report had low incomes; most were white.

All six of the states that accounted for most of the cases cited in the study have fetal personhood language baked into their laws. Seventeen states have laws with broad fetal personhood language that could apply to all criminal laws, according to an analysis by Pregnancy Justice.

When it comes to prosecuting pregnant women, Alabama leads the nation: The state accounts for nearly half of the prosecutions documented in the report. Alabama has a constitutional amendment, approved by voters in 2018, that explicitly confers personhood on fetuses and affirms the state’s responsibility to protect “the rights of unborn children.” All the cases documented in Alabama were brought under its chemical endangerment law, which the Alabama Supreme Court ruled in 2013 can include fetuses.

Most of Alabama’s cases come from just a few counties. They were long considered outliers, places where a handful of overzealous officials liberally applied the state’s chemical endangerment law to hundreds of pregnant women.

But Brittany VandeBerg, who led the research in Alabama, said that chemical endangerment charges have popped up in a dozen more Alabama counties since the Dobbs ruling.

“In each county the district attorney really steers the ship as far as what type of priorities they have in their office for prosecutions,” said VandeBerg, who is associate chair of the department of criminology and criminal justice at the University of Alabama. “I don’t know if the elected district attorneys feel this is what the community wants, or if it’s their own personal feelings. But the system is in place to move those cases forward.”

VandeBerg said Alabama provides relatively meager resources for people struggling with addiction. That leaves law enforcement feeling like they have no options other than to arrest and jail women with substance use disorders, she said.

“There just aren’t enough inpatient treatment facilities to help these women,” VandeBerg told Stateline.

One of the things that stuck out to VandeBerg in reviewing cases was the large share of incidents in which a pregnant woman was charged with chemical endangerment even though her baby exhibited no signs of harm after it was born.

“I found that incredibly shocking,” said VandeBerg, who noted that Alabama’s chemical endangerment law can result in a 10-year prison sentence — much longer than some domestic violence crimes carry. “Here, they’re charging the mother before we know harm has been done.”

Defendant exonerated

In July, an Oklahoma court exonerated a woman who’d been charged with felony child neglect in 2020 after her son tested positive for marijuana at birth. Prosecutors pursued the case even though her baby was born healthy, and she’d had a doctor-approved state license to legally use medical marijuana to treat severe morning sickness during the pregnancy.

Brian Hermanson, an Oklahoma Republican district attorney who’s prosecuted dozens of women in his district in similar circumstances, used fetal personhood language in his legal argument.

“Marijuana is an illegal drug under Oklahoma law unless the person consuming the marijuana holds a medical marijuana license. Unborn babies cannot hold such a license,” Hermanson wrote in a court filing.

“[The defendant] admitted to smoking marijuana throughout her pregnancy, knowing that her unborn baby was being exposed to the possible harmful effects of the marijuana smoke.”

The Pregnancy Justice report also documented five cases in which allegations specifically mentioned abortion. One was brought under a state abortion statute that has since been repealed. The other four cases were charged as homicide, child neglect or abuse of a corpse. In the two cases in which homicide was charged, the defendants allegedly visited an abortion clinic or took pills and the abortion was successful, Rivera said.

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