According to a new report from advocacy group Pregnancy Justice, “at least 210 pregnant individuals faced criminal charges related to pregnancy, abortion, pregnancy loss, or birth” in the year after the Supreme Court overturned Roe v. Wade. In 2023, Teen Vogue traced the already far-reaching dangers of fetal personhood laws, which contribute to criminalization of a woman's actions during pregnancy and beyond.
Of the cases in the report, 22 were criminalized for experiencing a pregnancy loss, and five included simply the “mention of abortion, an attempt to end a pregnancy” or that the defendant merely “researched or explored the possibility of abortion.”
Alleged substance use during pregnancy, for legal and illegal substances alike, was the most common allegation these women faced, though in the vast majority of these cases (191) the pregnant person was not required to present “proof” of harm to the fetus. The prosecution’s only burden was to prove that the pregnant person engaged in conduct that exposed the embryo or fetus to undefined “risk.”
The authors of the report write, “Dobbs also emboldened state legislatures, judges, anti-abortion activists, and prosecutors to develop ever more aggressive strategies to protect fetal ‘victims.’" According to the report, the majority of defendants were low-income, suggesting disproportionate disadvantages when receiving equitable legal support in court. And while charges ranged from child neglect, abuse, or endangerment to murder, 114 cases indicated involvement by the family policing system.
June 24, 2022, when the Supreme Court’s decision was released, to June 23, 2023, the timeframe for which this report centers on, represented the highest reported number of pregnancy-related criminalizations in a single year in American history. Still, the authors of the report note that while the 210 figure is the highwater mark dating back to 1973, the data represents an undercount of cases as the research team “continues to uncover additional cases initiated during this period and will add them to the dataset as part of a comprehensive three-year report published at the end of the study.”
“This 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,” Lourdes A. Rivera, president of Pregnancy Justice said in a statement. “To turn the tide on criminalization, we need to separate health care from the criminal legal system and to change policy and practices to ensure that pregnant people can safely access the health care they need, without fear of criminalization. This report demonstrates that, in post-Dobbs America, being pregnant places people at increased risk, not only of dire health outcomes, but of arrest.”
Nearly half, (104) prosecutions took place in the state of Alabama, where abortion is nearly entirely banned and fetal personhood is enshrined as law. In February, Teen Vogue reported on Alabama’s first-of-its-kind ruling, in which the Alabama Supreme court ruled that frozen embryos are “children”, and that a person can be held liable for destroying them.
