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pregnancy justice
Thanks to Trump, Criminal Charges Related to Pregnancy Hit All-Time High
"The Dobbs decision emboldened prosecutors to develop ever more aggressive strategies to prosecute pregnancy, leading to the most pregnancy-related criminal cases on record."
Sep 24, 2024
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.
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'Radically Theocratic': Alabama Supreme Court Gives Frozen IVF Embryos Status of Children
"The movement to confer personhood status to IVF embryos is long-standing and one example of the broad-reaching implications of anti-abortion politics," said one expert. "We can expect more cases like this one."
Feb 19, 2024
In a case brought by patients of a fertility clinic in Alabama, a Friday ruling by the state's Supreme Court flew largely under the national radar over the weekend, but legal experts and reproductive justice advocates warned Monday that the "radically theocratic" decision could have major implications for the U.S. abortion rights movement as well as people struggling with infertility.
In LePage v. Mobile Infirmary Clinic, Inc, the Alabama Supreme Court ruled 7-2 that a couple has the right to sue an in vitro fertilization (IVF) clinic for the "wrongful death" of their frozen embryos, which the court classified as children who must be protected by Alabama's Wrongful Death of a Minor Act.
The majority opinion quoted the Bible extensively, as well as citing Alabama Constitution Section 36.06, which despite being a government document states that a person's life "cannot be wrongfully destroyed without incurring the wrath of a holy God."
Alabama passed a Sanctity of Life Amendment in 2018, adding to its constitution language which says, "the public policy of this state to recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life."
The case stems from the experience of several patients of an IVF clinic where a person allegedly entered the facility through an unlocked door and removed frozen embryos from a freezer and then accidentally dropped them on the floor, rendering them unusable for the patients who hoped to become parents.
Writing for the majority, Associate Justice Jay Mitchell said the state's Wrongful Death of a Minor Act "is sweeping and unqualified."
"It applies to all children, born and unborn, without limitation," Mitchell wrote. "It is not the role of this court to craft a new limitation based on our own view of what is or is not wise public policy. That is especially true where, as here, the people of this state have adopted a constitutional amendment directly aimed at stopping courts from excluding 'unborn life' from legal protection."
"It is as if the people of Alabama took what was spoken of the prophet Jeremiah and applied it to every unborn person in this state: 'Before I formed you in the womb I knew you, Before you were born I sanctified you,'" added Mitchell, quoting Jeremiah 1:5 in the Bible.
While the LePage case pertains to an alleged accident at one specific clinic, the loss or destruction of embryos is inherent to the IVF process. IVF has only a 50% success rate and embryos that don't implant and lead to a pregnancy are lost in the process, while the American Society for Reproductive Medicine estimates that between 1-24% of frozen embryos are abandoned by fertility clinic patients and are ultimately destroyed.
If all 1.5 million frozen embryos in the U.S. have the same rights as children, asked one critic, "who are they fixing to start charging with murder?"
In a court filing submitted by the Medical Association of the State of Alabama, the group warned that "the potential detrimental impact on IVF treatment in Alabama cannot be overstated" if embryos were to be classified as children covered under the state's wrongful death law.
"The increased exposure to wrongful death liability as advocated by the Appellants would—at best—substantially increase the costs associated with IVF," said the association. "More ominously, the increased risk of legal exposure might result in Alabama's fertility clinics shutting down and fertility specialists moving to other states to practice fertility medicine."
Abortion rights groups have warned that the U.S. Supreme Court's overturning of Roe v. Wade in 2022 could have implications for fertility treatments if right-wing courts begin to classify embryos as "children," as the pro-forced pregnancy movement has with fetuses.
"The movement to confer personhood status to IVF embryos is long-standing and one example of the broad-reaching implications of anti-abortion politics," said Risa Cromer, an anthropology professor at Purdue University. "We can expect more cases like this one from Alabama."
Dana Sussman, deputy executive director of the reproductive rights group Pregnancy Justice, toldRolling Stone that lawyers for the plaintiffs alluded to the U.S. Constitution's equal protection clause, suggesting that embryos created via IVF should be treated equally to those conceived without medical intervention.
"It leaves the door open wide enough to make this argument with a straight face the next time around... in the context of not just babies born through IVF, but fetuses or 'unborn life' as having these 14th Amendment rights," Sussman told the outlet.
Barbara Collura, president and CEO of Resolve: The National Infertility Association, called the ruling "a terrifying development for the 1 in 6 people impacted by infertility who need in vitro fertilization to build their families."
"This anti-family ruling will likely have devastating consequences, including impacting the standard of care provided by the state's five fertility clinics," Collura said. "This new legal framework may make it impossible to offer services like IVF, a standard medical treatment for infertility. It also remains unclear what this decision means for families who currently have embryos stored at these clinics."
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Ohio Woman Won't Be Charged After Miscarriage But 'This Doesn't Undo the Harm'
"Criminalizing a woman for miscarrying at home shouldn't have happened in the first place," said SisterSong. "Our fight for reproductive justice isn't over."
Jan 11, 2024
While welcoming that an Ohio woman who miscarried a nonviable fetus last year won't face a felony charge of abuse of a corpse, reproductive rights advocates on Thursday highlighted Brittany Watts' experience as further proof that, as Jane's Due Process put it, "pregnant people still live with the threat of prosecution in the current oppressive environment."
The Trumbull County grand jury's decision to not indict Watts—who miscarried at her Warren home in September at just over 21 weeks pregnant—comes after the 34-year-old's case garnered national attention amid battles over reproductive freedom that have ramped up in the wake of the U.S. Supreme Court's June 2022 ruling in Dobbs v. Jackson Women's Health Organization.
"Let's be clear that this doesn't undo the harm, and the case shouldn't have been pursued in the first place," the group Pregnancy Justice said after the grand jury's decision. "This is why advocacy matters. As long as prosecutors feel obligated to criminalize pregnancy, there will be more cases like Brittany's. When we fight collectively, we can win."
SisterSong similarly declared that "we're relieved Brittany Watts will NOT be criminalized for having a miscarriage. It's wild to us that we even have to say something like that, because... criminalizing a woman for miscarrying at home shouldn't have happened in the first place."
"Our fight for reproductive justice isn't over," the organization stressed. "We will continue to demand a world where we have the autonomy to make decisions about our bodies."
The Afiya Center pointed out that Black women like Watts face "a higher risk of maternal mortality and morbidity."
"Let’s be clear—Brittany Watts should never have been charged with a felony because of her pregnancy outcome," the center said. "The criminalization of Black folk who miscarry sets a dangerous tone and poses a threat to the health of ALL Black pregnant folk."
Watts and her attorney, Traci Timko, also emphasized the need for broader change on Thursday.
"From the start of this case, I have argued that the charge was not supported by Ohio law and that Brittany was being demonized for something that takes place in the privacy of women's homes regularly," Timko said in a statement. "No matter how shocking or disturbing it may sound when presented in a public forum, it is simply the devastating reality of miscarriage.”
"We thank the public for the outpouring of love and support Brittany received. To the countless women who reached out to share their own devastating stories of pregnancy loss—Brittany read every one of them and felt a sisterhood to each of you," the lawyer said. "The emails, letters, calls, donations, and prayers—they all played a part in empowering and getting her through each day. It is our hope and intention to make sure that Brittany's story is an impetus to change."
The Associated Pressreported that while speaking at a pre-planned event on Thursday, Watts said: "I want to thank my community—Warren. Warren, Ohio. I was born here. I was raised here. I graduated high school here, and I'm going to continue to stay here because I have to continue to fight."
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