An ocean of uncertainty surrounds dozens of new state-level abortion bans and how they’ll be enforced following last month’s U.S. Supreme Court opinion that overturned Roe v Wade.
Could a pregnant person be arrested for having a miscarriage? A still birth? Could a district attorney prosecute someone who drove out of state to get an abortion? What about self-managing an abortion with pills received in the mail?
But the reality is that states don’t need abortion bans to prosecute pregnant people for harm caused to a fetus – they’ve been doing it for years.
“Many of the new abortion bans are focused on (abortion) providers rather than the person seeking abortion care, but we know that many pregnant people have already faced criminal charges,” said Emma Roth, a staff attorney at National Advocates for Pregnant Women (NAPW), a nationwide nonprofit that provides legal defense for pregnant people.
Even when Roe was in place, law enforcement and local prosecutors across the country used existing state statutes to arrest and prosecute pregnant people, often stretching laws that were originally intended to guard against child abuse or children’s exposure to illegal drugs. Roth said her organization has tracked 1,700 such cases since 1973.
Many, if not most, current abortion bans specifically exempt pregnant patients from criminal prosecution. But it’s not realistic to assume pregnant people won’t be arrested for taking drugs or medication to end a pregnancy because it’s already happened in certain pockets of the country, said Jenny Carroll, a criminal law professor at the University of Alabama Law School.
“(State legislators) are always saying we’re not going to prosecute women under this statute for having an abortion,” said Carroll. For example, Alabama State Rep. Terri Collins, the sponsor of Alabama’s 2019 abortion law, said at the time that the legislation criminalizes abortion through doctors, not women.
“But there is a whole buffet of criminal laws you can prosecute under,” Carroll said. “You don’t like the baked chicken? No worries, we have a pasta dish.”
The municipal, county, state and federal levels of the criminal justice system each have their own laws and law enforcement and prosecutors, she said. And at each of those points, officials use their discretion about whether to prosecute.
“We tend to think of the criminal legal system as a single system,” said Carroll. “And it’s not.”
A southern outlier
Nowhere in the U.S. are pregnant people prosecuted as fervently as the South.
Roth points to NAPW’s 2013 study, which found more than 400 cases from 1973 to 2005 in which a woman’s pregnancy directly led to her prosecution. More than half of those cases originated in the South. As the NAPW gathers preliminary data for an update of the study to be released in 2023, Roth said the South still has the highest numbers of prosecutions.
And within the South, one state stands in a league all its own: Alabama.
“Alabama is the leading state when it comes to pregnancy criminalization,” she said. “Since 2006, we’re aware of approximately 600 criminal cases related to pregnancy and pregnancy outcomes” out of the more than 1,300 cases currently identified in the new report of arrests, prosecutions, detentions or forced medical interventions related to pregnancy.
Alabama provides a clear example of how prosecutors interpret existing child endangerment laws to punish pregnant people for substance use during pregnancy, said Carroll.
A 2015 investigation by AL.com and ProPublica identified nearly 500 pregnant women and new mothers prosecuted in Alabama from 2006 to 2015 under the state’s chemical endangerment law. That law, originally intended to crack down on parents who run home-based drug labs, has been reinterpreted by prosecutors in a handful of counties and used to prosecute women who took legal or illegal drugs while pregnant.
The Alabama Supreme Court smoothed the path for those prosecutions in 2013, making Alabama one of few states where criminal child endangerment laws specifically cover fetuses.
In one case identified by the Propublica/AL.com investigation, a North Alabama woman was arrested and charged with chemical endangerment after a hospital drug screen revealed the presence of benzodiazepines in her system. She’d taken half a Valium on two occasions in the weeks leading up to the birth of her baby. Her son was born healthy, and a drug screen on him came up clean. Charges weren’t dropped against the mother until nearly a year later.
In Mississippi, officials in Jones County used that state’s felony child abuse statute to prosecute a woman in 2019 for taking illegal drugs while pregnant. She was sentenced to five years in prison.
And in the years leading up to the Roe reversal, state-level fetal personhood laws and constitutional amendments – for example, Alabama’s 2018 amendment that enshrined “the protection of the rights of the unborn child” – not only paved the way for current abortion bans but made it easier for prosecutors and law enforcement to apply existing laws to pregnant people, both Roth and Carroll said.
In 2019, a grand jury in Alabama indicted 27-year-old Marshae Jones with manslaughter in the death of her fetus after authorities said she “initiated” a dispute in which another woman shot Jones in the abdomen. She was five months pregnant and the fetus did not survive the shooting. Prosecutors later dropped the charge after the case made national headlines.
Now with abortion bans firmly in place, prosecutors “no longer will need to be as creative,” said Roth, “because they can prosecute abortion in more direct ways.”
Many times, prosecutions of pregnant people for actions deemed potentially harmful to a fetus don’t withstand legal scrutiny, sometimes resulting in dropped charges or overturned convictions.
A 2017 study published in the Journal of the American Academy of Psychiatry and the Law found 86% of cases involving women charged with a crime against a fetus or child as a result of substance use during pregnancy ended with charges dismissed or convictions overturned.
Georgia police arrested 23-year-old Kenlissia Jones for murder in 2015 after they said she took abortion medication to terminate her pregnancy. She gave birth and the baby died shortly afterward. Murder charges against her were later dropped.
In Indiana, a jury convicted Purvi Patel in 2015 of feticide – killing a fetus – and felony child neglect after officials used her phone records to show she took abortion medication while pregnant. She maintained the baby had been stillborn. Patel spent more than a year in prison before an appeals court overturned her feticide conviction.
But charges dropped or a victory in court “doesn’t undo the vast indignity and material harms inflicted on pregnant people who are prosecuted,” Roth said.
“In many instances the client has already faced incarceration and separation from their existing children,” she added. “Many clients have suffered job loss and severe economic consequences.”
Many advocacy groups and major medical organizations say criminal prosecution isn’t the best way to address substance abuse during pregnancy. This year, the American College of Obstetricians and Gynecologists reaffirmed its opinion that the use of the legal system to address substance abuse in pregnancy is “inappropriate” and said incarceration or the threat of it has been proven ineffective at reducing pregnancy-related substance abuse.
“Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus,” potentially dissuading pregnant people from seeking prenatal care, according to the opinion.
Where you live
Pregnant people who are Black, poor, or who have substance dependency are more likely to be targeted for criminal prosecution, said Roth.
The NAPW’s 2013 study found Black pregnant people accounted for 52% of pregnancy criminalization cases nationally, despite representing just 13% of the population. In 71% of the cases, the defendant was poor.
And a person’s likelihood of being prosecuted varies greatly depending on where they live.
“You have very aggressive prosecutors in some counties who are going very aggressively against some women,” said Carroll. “That’s not happening across the state. It’s happening in particular jurisdictions.”
Prosecutors in metro areas like Atlanta, Birmingham and Nashville have signaled they’re unwilling to use resources to prosecute pregnant people for suspected abortions. Carroll said cases tend to cluster in particular counties or hospitals, the result of aggressive prosecutors, strict policies or lack of available substance abuse treatment options.
“Addiction is a disease,” said Carroll. “It’s not a matter of being a good, moral person or a bad person; you have an illness. But they can’t get treatment in their community and so instead you prosecute them?”
‘You get to vote’
Carroll said her biggest concern is that prosecutors and law enforcement, in an effort to discourage drug use during pregnancy, will create a larger culture of fear as the U.S. moves further into a post-Roe world.
“When we talk about this issue, often people are just focused on the enforcement,” she said. “But my position has been that it doesn’t matter as much what the reality of enforcement is, but whether women are going to be afraid they’ll be prosecuted, and they change their behavior based on that fear.”
In other words, she worries that pregnant people will take actions that threaten their health, lives or safety to evade prosecution.
Carroll said the uncertainty surrounding pregnancy-related prosecution highlights how important it is that voters pay attention to their local elections and not just national ones.
“You get to vote on your district attorney and your sheriff,” she said. “It’s important to pay attention to what they say they’re going to do on this issue.”
For people who wonder how they can get involved in pregnancy criminalization issues, Roth points to resources like NAPW’s online toolkit, which offers advice to healthcare providers, lawyers, child welfare workers and others.