More than 400 American women have been charged with pregnancy-related crimes in the first two years since the US Supreme Court’s controversial overturning of Roe v Wade, according to research published this week.
The Guardian reports that of the 412 cases tracked by Pregnancy Justice, most targeted low-income women and involved allegations that women broke laws against child abuse, endangerment or neglect, found the research, which was compiled by the reproductive justice group.
About 300 prosecutions took place in Alabama and Oklahoma: in 16 cases, women were charged with homicide.
Because there is no national database of US arrest or court records, the group believes the tally is likely to be an undercount.
In a report released in September 2024, Pregnancy Justice said it had recorded 210 pregnancy-related prosecutions in the first year after Roe fell – the highest number ever recorded at that time.
The group is now devoting more resources to unearthing records of pregnancy-related prosecutions, so can’t say for sure whether these prosecutions are on the rise post-Roe or whether they are simply tracking them more closely.
Nearly 400 of the cases included in the new report involved allegations of substance use during pregnancy. In one example, after one woman gave birth, the hospital tested her umbilical cord for drugs and when it came back positive for marijuana, she was arrested for felony child neglect, even though she had a medical marijuana card.
The laws used in most of these prosecutions, Pregnancy Justice pointed out, are typically meant to protect children, not foetuses. By prosecuting pregnant women under them, the group says, states are cementing the legal doctrine of “foetal personhood”, which seeks to grant embryos and foetuses full legal rights and protections – sometimes at the cost of the rights of the woman carrying them.
Alabama and Oklahoma are both hubs for the growing foetal personhood movement.
“That is the ultimate goal of the anti-abortion movement,” said Dana Sussman, the senior vice-president at Pregnancy Justice. “It wasn’t just to overturn Roe. It is to establish full personhood, full rights for embryos and foetuses.”
Sussman said a number of women have faced criminal consequences for taking substances that were legal or prescribed to them.
For that reason, Donald Trump’s claim last week that pregnant women who take Tylenol may give their children autism, raised alarms. Scientific research does not support this claim.
“It’s a perfect storm of all of the things that we work on: stigmatising pregnant women for not being perfect pregnant women, blaming them for their perceived failures, and relying on misinformation and junk science to create a panic when there shouldn’t be one or isn’t one – while also increasing surveillance in the police state to monitor and potentially criminalise women when they don’t meet these impossible ideals,” Sussman said.
Only 31 of the cases documented by Pregnancy Justice included a stillbirth or miscarriage, while almost 300 of the cases led to a live birth.
A woman whose case was included in the report reportedly didn’t realise she was pregnant until she started to feel intense pain in her stomach. A new immigrant to the US, she suspected that she had food poisoning and decided to drive herself to the hospital.
Before she could get in the car, however, she started to give birth. She ultimately delivered what police records listed as a stillbirth. Pregnancy Justice did not fact-check the cases in the report and could not say whether the foetus was past 20 weeks of pregnancy, after which the term stillbirth is used. After police found the remains, the woman was charged with abuse of a corpse.
The report indicates there are far more cases of miscarriage criminalisation than have made national headlines. In one case in late 2023, police charged a woman with felony abuse of a corpse after she miscarried into a toilet.
Nine cases discovered by Pregnancy Justice involved allegations that women had considered abortions, such as ordering abortion pills or looking for information about abortion online.
Last year, lawmakers in at least 12 states introduced legislation that would treat foetuses as people, which would leave women who have abortions vulnerable to being charged with homicide. In several of those states, that charge would carry the death penalty.
See more from MedicalBrief archives:
US sterilisations double after Roe v Wade overturned
Roe vs Wade: US abortion rights’ ruling could hurt women worldwide