Thanks to Trump, Criminal Charges Related to Pregnancy Hit All-Time High

Reproductive justice experts have long warned that the erosion of abortion rights in the U.S. would harm people in a wide range of ways, and a report released Tuesday quantifies some of that harm—namely, the criminalization of pregnancy.

In the report, Pregnancy as a Crime: A Preliminary Report on the First Year After Dobbs, the rights group Pregnancy Justice found that from June 24, 2022—the day the Supreme Court handed down the Dobbs v. Jackson Women's Health Organization, the ruling that overturned Roe v. Wade—to June 23, 2022, the number of people who faced criminal charges related to their pregnancies rose to its highest level in U.S. history.

At least 210 people were charged with crimes related to pregnancy in the first year after Roe was overturned, with prosecutors accusing them of child endangerment, substance abuse, attempting to end a pregnancy—or even researching abortion—and abuse of a corpse, among other charges. Right-wing lawmakers in 22 states have now banned or severely restricted access to abortion.

According to Pregnancy Justice president Lourdes A. Rivera, "the Dobbs decision emboldened prosecutors to develop ever more aggressive strategies to prosecute pregnancy, leading to the most pregnancy-related criminal cases on record" in a single year.

The rise in pregnancy criminalization "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," added Rivera.

Roughly half of the cases detailed in Pregnancy as a Crime—104 of them—were reported in Alabama, one of several Republican-controlled states that have so-called "fetal personhood laws."

"Without fetal personhood, pregnancy criminalization could not exist," reads the report.

Prosecutors in Oklahoma filed 68 of the cases, and South Carolina had the third-most charges with 10 pregnant people criminalized.

All three states with the highest numbers of cases have near-total abortion bans and some of the worst maternal and infant mortality rates in the U.S., according to Pregnancy Justice.

"To turn the tide on criminalization, 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."

In nearly all of the cases brought against pregnant people, actual harm to a fetus or baby did not have to be proven—prosecutors focused only on the perceived risk that the defendants allegedly exposed their pregnancies to.

For example, all 68 defendants in Oklahoma were charged with child neglect, delinquency, or abuse for testing positive for a substance while pregnant or giving birth.

"Defendants can be found guilty even if the pregnancy results in a healthy child and even when the science does not support the
assumption that a positive drug test proves the fetus was harmed," reads the report.

Such "no harm" prosecutions can result in severe punishment for defendants, said Pregnancy Justice; the Oklahoma residents who were charged face sentences up to life in prison if found guilty, and 93 Alabama defendants who were charged with chemical endangerment of a minor could face up to 10 years in prison.

"These findings strongly suggest that, rather than focusing on fetal harm, these prosecutions seek to control and punish pregnant people," said Pregnancy Justice.

Substance abuse charges—for both legal and illegal substances—were involved in a majority of cases studied by the group, while five cases included allegations regarding abortion care, including an attempt to end a pregnancy or to research the possibility of an abortion.

Twenty-two people were criminalized for experiencing a pregnancy loss, said Pregnancy Justice.

Charging documents included 15 allegations of "lack of prenatal care" and 10 cases in which the defendant failed "to seek help during or after birth." Three people were accused of breastfeeding and placing their infant at risk of drug exposure.

"The allegations in these cases are particularly notable for the way that they criminalize precarious pregnancy and birth and meet healthcare needs with punishment rather than care," reads the report. "It is also noteworthy that 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. Striking, too, in the midst of a wide-ranging crisis in maternal healthcare, is the condemnation of pregnant people for not accessing prenatal care."

In one case, police charged a woman with abusing her "unborn child" just after they administered Narcan to save her from a drug overdose.

Criminalization of pregnancy, said Pregnancy Justice, "only worsens" the crisis of opioid-related deaths among pregnant people.

Rivera said that "to turn the tide on criminalization, 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."

The report was released a day after KFF Health Newsreported on the story of Amari Marsh, a South Carolina resident who was charged in May of 2023 with "murder/homicide by child abuse," two months after she went into preterm labor and gave birth in her bathroom. Marsh spent 22 days in prison—and faced a potential sentence of 20 years to life—but her charges were ultimately dismissed by a grand jury.

Marsh's case, and other instances of pregnancy criminalization, represent Republican presidential candidate Donald Trump's "plan for America," said Rep. Katherine Clark (D-Mass.) on Tuesday. Trump has boasted about his hand in ensuring Roe v. Wade was overturned and spread misinformation about abortion rights, including the demonstrably false claim that Democrats support "an execution of a baby after birth."

The Dobbs decision, made possible by Trump's appointment of right-wing Supreme Court justices, paved the way for "increased suspicion and surveillance of pregnant people," said Wendy Bach, principal investigator of the report and a professor at the University of Tennessee College of Law. "With this report, we hope to see both more attention on pregnancy-related prosecutions and more advocacy to reverse course on the criminalization of pregnant people."

Correction: This article has been adjusted from its original to more accurately reflect context surrounding a comment from Pregnancy Justice president Lourdes A. Rivera.