New Research Reveals Increasing Criminalization of Pregnant Women

In the anti-abortion political climate of the United States, hostility to pregnant women extends not just to women planning to terminate their pregnancies, but to women who plan to carry their pregnancies to term, according to new research by the organization Pregnancy Justice (formerly National Advocates for Pregnant Women). Prosecutors are increasingly bringing criminal charges against pregnant women who struggle with drug addiction or who engage in behaviors that otherwise would not be a crime, such as failing to go to a doctor, refusing to follow a doctor’s orders, or driving without a seatbelt.

The new report, titled The Rise of Pregnancy Criminalization, documents how government officials are investigating, arresting, and prosecuting pregnant women at an accelerating pace in recent years, often under the pretext of protecting “unborn life.” Whereas a 2013 study found 413 cases of pregnancy-related criminalization across the United States between 1973 and 2005, the recent study found 1,396 cases of criminalization of pregnant women between 2006 and 2022 — over three times as many cases in half as many years. The vast majority of cases involved charges of criminal child neglect, abuse, and/or endangerment, and many relied on the cooperation of health care providers and family regulation systems, such as “child welfare” agencies.

“Pregnancy Justice’s report shows that pregnant people are increasingly targeted for criminalization in ways that do not exist for people who are not pregnant, with dire consequences for themselves and their families,” said Lourdes A. Rivera, president of Pregnancy Justice.

While the researchers found cases of pregnancy criminalization in 46 states and U.S. territories, nearly 80% of the cases arose in just five Southern states — Alabama, Mississippi, Oklahoma, South Carolina, and Tennessee — states that are among the top 11 in maternal mortality. Nearly 85% of cases involved criminal charges against pregnant women who were deemed legally “indigent.” Pregnancy criminalization deters pregnant women from seeking health care, which increases risks to maternal, child, and fetal health.

“The policing and criminalizing of pregnant people is not new, but never before have we had such a comprehensive picture of the full scope of how they — especially those who are poor and living in the South — are losing their autonomy, their rights, and their freedoms because of police, prosecutors’, and politicians’ desire to control pregnancy,” said Dorothy Roberts, professor at Penn Carey School of Law.

Four of the five leading states for pregnancy criminalization have “backdoor” personhood laws where courts have expanded the definition of “child” in the criminal laws to include fetuses or have explicitly criminalized women who consume drugs while pregnant.

“Roe versus Wade rejected the concept of fetal personhood and affirmed that people do not lose their constitutional rights upon becoming pregnant,” said Rivera, noting that 15 states already have fetal personhood laws on the books. “Now, without the protection of Roe, we can expect more states to implement fetal personhood. The Dobbs ruling is further accelerating an existing crisis, putting pregnant people at even greater risk of arrest, prosecution, and conviction.”

The Pregnancy Justice research found that more than nine in 10 of the instances in which women were criminalized involved allegations of substance use. The three most common substances associated with pregnancy criminalization were methamphetamine, cannabis, and cocaine, but one-quarter of cases involved alleged use of legal substances, including prescription opiates, nicotine, and alcohol. Two in three cases involved a live birth with no mention of negative health outcomes for the infant.

“Pregnancy Justice’s report clearly shows how the carceral approach to substance use established during the ‘war on drugs’ is being applied to pregnant people, who are being investigated, arrested, and prosecuted for using substances — even as substances are being decriminalized and medical experts warn that criminalization only harms pregnant people, their families, and communities,” said Kassandra Frederique, executive director of the Drug Policy Alliance.

In addition to substance use, other reasons for criminal arrest included stillbirth or miscarriage (3%), lack of prenatal care (2.6%), noncompliance with treatment (1.9%), and attempt to end a pregnancy (1.4%). The report is full of detailed case studies of the experiences of the many pregnant women who have faced criminal charges, convictions, and incarceration, and the tragic impacts on their lives and families.

The report showed that poor white women were the most criminalized population, but poor Black women were disproportionately criminalized. Seventy-nine percent of those charged were white women and 18.2% of arrests were of Black pregnant women, who were 13% of the population. “Today, poor white people are now overrepresented in the data,” said the report — “a marked shift in the racial patterns of arrests compared to the first three decades following Roe, when pregnancy criminalization disproportionally targeted Black communities.”

“Understanding abortion and pregnancy restrictions requires understanding the intersection of race and gender in reproductive politics,” said reproductive justice advocate and Smith College professor Loretta Ross. “It is becoming more obvious that the reversal of Roe and the increasing criminalization penalties for white women reveal the not-so-hidden agenda of compelling white women to have more forced pregnancies to fulfill the white supremacist fantasies of maintaining racial domination to address ‘Great Replacement’ fears.”

The report details the devastating economic impacts of criminalization on poor women who are pregnant. “The median bail was set at $10,000, and the majority of arrests resulted in prison and jail time, likely interrupting employment and deepening financial hardship,” says the report, noting that prisons and jails have “substandard and sometimes dangerous pregnancy and post-partum care.”

According to the report, every major medical group opposes pregnancy criminalization because it deters pregnant women from seeking health care and actually increases risks to maternal, child, and fetal health.

Of the 1,394 cases of pregnancy criminalization, only 1.4% — 16 cases — involved people attempting to end a pregnancy, but the report warns this may change in light of the reversal of Roe v. Wade and the increasing number of states banning abortion.

The report concludes with nine recommendations, including repealing fetal personhood laws, supporting proactive approaches to decouple health care and policing, expanding HIPAA privacy protections, ensuring criminalized pregnant people have a robust defense, and spotlighting the connection between pregnancy criminalization and the maternal health crisis.

Pregnancy Justice, in partnership with several law schools across the country, is continuing this research on the criminalization of pregnancy through the Pregnancy Prosecutions Tracking Project, which is gathering data and aiding pregnant people experiencing criminalization.

“The findings in this report are a call to action, and anyone working to achieve greater bodily autonomy ought to heed that call,” said Monica Rae Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective. “We must challenge the systems that collude to criminalize pregnant people, ensure that neither poverty, gender, nor race is criminalized, and ensure everyone can get the care they need and live full, thriving lives without fear, stigma, or punishment.”