The legal arguments in Dobbs v. Jackson Women’s Health Organization illustrate that nothing is unprecedented in this new political age. In that case, Mississippi passed a blatantly unconstitutional 15-week abortion ban, and now the Supreme Court will likely erase nearly 50 years of precedent and find that this law, and many others waiting in the wings, are lawful based on an entirely new legal theory. Under Roe v. Wade, later affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, abortion before 24 weeks — the designated “pre-viability” period of a pregnancy — is considered a private decision between patients and doctors, and states can regulate abortion but cannot place an “undue burden” on a person seeking an abortion during this period.
The expected end of Roe, devastating though it would be, is only the beginning. Tucked in the Dobbs oral argument was a little-noticed line of questioning from Justice Clarence Thomas that portends an even bleaker future. He asked the attorney representing the Mississippi abortion providers whether a person who uses “illegal substances” during pregnancy has bodily autonomy rights, possibly referring to Ferguson v. City of Charleston. That case considers whether the Fourth Amendment permits the state, acting without a warrant or individualized suspicion, to drug-test people giving birth in a public hospital for criminal law enforcement purposes.
Justice Thomas’ question indicates that much more than abortion access is at stake. The anti-abortion movement is not simply relying on the Supreme Court to curtail abortion rights; it also hopes to control pregnancy, contraception, family formation, and parenting under the guise of “fetal personhood.”
The fetal personhood movement aims to give fertilized eggs, embryos, and fetuses rights equal to or greater than people who are already born and even those well into adulthood. Legislation aimed at codifying the belief that life begins at conception began to be introduced immediately after Roe was decided, but gained traction insidiously through the introduction of feticide laws in the 1980s. Premised on the theory that they would protect pregnant people from violence, feticide laws create new crimes when an attack on a pregnant person results in pregnancy loss. In recent years, fetal personhood laws, many of which explicitly expand the definition of the word child or person, are on a dramatic rise.
Fetal personhood laws and ideology have been used to subject pregnant and postpartum people to criminal prosecution, surveillance, and state control by expanding the application of existing criminal laws to pregnancy. State actors have determined that the pregnant person’s rights can be subordinated in the interest of the “unborn child” and “fetal life.”
Since Roe, National Advocates for Pregnant Women, where I work, has documented more than 1,600 cases of arrests of or forced medical interventions on pregnant people related to their pregnancies or pregnancy outcomes. To be crystal clear, many of these people would not have faced criminal charges, the threat of incarceration, or the punitiveness of the state’s family regulation apparatus had they not been pregnant — because these cases criminalize conduct that would not be illegal but for the pregnancy. Take, for example, criminal laws governing controlled substances; typically it is possession, and not use, that is criminalized. This is to ensure that individuals seeking treatment for use are not disincentivized and penalized for doing so. However, if you’re pregnant and test positive for a controlled substance in a place like Alabama, you could be charged with chemical endangerment of a child, converting a non-criminal act into a criminal one simply because the individual is pregnant.
This form of criminalization is accelerating nationwide, with more than 1,200 of these arrests occurring in the past 15 years — and certain communities are surveilled more than others. Our research and documentation show that Black, brown, and low-income, rural, white women are the typical targets of these arrests — and states with the most abortion restrictions are ground zero. Currently, more than 80% of the arrests and prosecutions of pregnant people documented by NAPW come from states that have passed abortion bans like Mississippi’s 15-week ban. These statistics show that anti-abortion state actors aren’t just attacking abortion; they’re coming for pregnancy. Across the nation, state actors such as police, prosecutors, judges, health care, and child welfare workers have deprived pregnant women of virtually every constitutional right, including the pregnant person’s right to life, all thanks to a fixation on “unborn life.”
Take, for example, NAPW’s recent client Kim Blalock, an Alabama mother of six. Blalock is a chronic pain patient who suffers from arthritis, degenerative disc disease, and surgical complications after a car accident. Ms. Blalock had been prescribed pain medication for years without issue and continued to fill her prescription while pregnant. She was charged with unlawful possession of drugs by fraud for allegedly failing to inform her orthopedist that she was pregnant, despite never being asked, and then refilling her prescription. Prescription fraud charges typically occur when people forge a prescription to gain access to controlled substances. The state used this to portray Blalock as a criminally neglectful mother.
In 2019, our client Chelsea Becker lost her wanted pregnancy. When she most needed support, she was arrested, charged with murder, and spent 16 months in a county jail under a $2 million bond despite her indigent status. She was charged under California Penal Code Section 187, which punishes “the unlawful killing of a human being or fetus with malice aforethought,” even though the law itself states it cannot be used to prosecute the “mother of the fetus.” The Kings County district attorney charged her with murder, claiming that her methamphetamine use caused the stillbirth, but there is no scientific evidence that shows methamphetamine use ends pregnancies. In fact, there is overwhelming evidence and consensus among medical organizations that punitive approaches to drug use during pregnancy increase risks to maternal, fetal, and child health. Criminalizing pregnancy harms, not heals.
Criminalizing pregnancy harms, not heals.
People have been charged with crimes for being in a dangerous place or situation while pregnant, having HIV while pregnant, drinking alcohol while pregnant, and not arriving at the hospital quickly enough on the day of delivery. For example, in 2019, Marshae Jones, an Alabama woman who lost a pregnancy as a result of being shot in the stomach, was charged with manslaughter. It was alleged in her indictment that she “intentionally caused the death of unborn Baby Jones by initiating a confrontation whilst knowing she was five months pregnant.” Prosecutors said the person who shot her acted in self-defense and was not charged. But Jones should have never been charged, either.
Christine Taylor is another example. In 2010, the Iowa mother of two accidentally fell down some stairs while pregnant with her third child. After going to the hospital, where she expressed uncertainty about raising three children, her nurse incorrectly documented that Taylor was in her third trimester and called the police. Taylor was then criminally charged with attempted feticide. In Iowa, the fetal homicide code also states that pregnancy terminations, even with the pregnant person’s consent, are a felony if they occur in the third trimester. This is the section of the law under which Taylor was charged for being pregnant and having the audacity to fall.
There’s more. Purvi Patel of Indiana experienced a miscarriage in 2013 and was subsequently convicted of feticide and sentenced to 20 years in prison based on evidence that she had texted a friend about ordering pills to induce an abortion. After she had been incarcerated for over a year, the Indiana Court of Appeals vacated her conviction because the state’s feticide statute had previously been applied only to “third parties who knowingly terminate pregnancies by using violence against the expectant mother without her consent,” not to pregnant or postpartum women themselves. The court noted that the “State’s about-face” in seeking to prosecute a pregnant woman as a perpetrator rather than a victim was “unsettling” and “untenable.”
These cases are but several examples of pregnant people being criminalized even with Roe still in place. And there are many more cases that never made headlines that, more often than not, involved births to healthy babies with no adverse pregnancy outcomes reported.
As horrifying as this reality is, when these cases are challenged and appealed, the results are overwhelmingly consistent with the principles articulated in Roe. The majority of state appellate decisions have held that the prosecutions were unlawful. In fact, a number of decisions have explicitly referenced or relied on the Supreme Court’s language in Roe. In a world without Roe, protections against these illegal prosecutions might soon fall away.
Yet even these favorable judicial decisions leave extensive harms unremedied. Many of the women subjected to pregnancy-based prosecutions lack the means to contest them effectively. Likewise, an appellate reversal cannot undo the damage caused by court-ordered surgery, being subjected to degrading treatment, or being detained or incarcerated. For example, after experiencing a stillbirth, Regina McKnight was charged with homicide by child abuse because of her alleged cocaine use. The South Carolina Supreme Court eventually unanimously reversed the conviction, but McKnight had already spent eight years in prison, deprived of her rights, liberty, and access to her children. Nor do case-by-case rulings secure the compliance of officials who consistently ignore constitutional limits. At its most detrimental, these ever-present threats of prosecution inflict harm by deterring women from accessing care that would improve pregnancy outcomes, lest doing so bring them under surveillance.
Targeting pregnancy in this way turns medical institutions and states’ so-called child welfare systems into sites of criminalization, which only further deters health-seeking behaviors, separates families, and creates barriers to health care access for pregnant people. Ultimately, criminalization contributes to the corruption of the care services these institutions are presumably supposed to provide, contrary to core public health and harm reduction principles.
Realizing that the Dobbs decision has the power to increase the universe of criminalization beyond abortion is terrifying. But this should not paralyze us, as the opportunities for potential allyship, collaboration, and solidarity also increase as sites for criminalization increase. As medical institutions and those that purport to regulate family wellbeing become sites for criminalization, as substance use continues to send people to prison, and as state surveillance of pregnancy falls disproportionately on low-income communities of color, it becomes increasingly vital to partner with doctors, nurses, midwives, ethics committees, social workers, public health researchers, birth workers, doulas, harm reduction groups, racial justice organizations, and groups looking to end mass incarceration and reform drug policy.
Ultimately, the fetal personhood movement pits pregnant people against the fetus. This obscures the real power play at hand, which is the pregnant person-state dyad: the effort to expand the state’s power to police and control pregnant people themselves. Moreover, as fetal personhood underpins this burgeoning wave of pregnancy criminalization, it is important to focus our efforts on movements that promote human rights and expand constitutional protections for born people. Movements such as Black Lives Matter and intersectional feminism elevate the personhood of communities of color and people with the capacity for pregnancy. Analyzing all these actors and how they overlap highlights how abortion justice is reproductive justice is criminal justice is racial justice is economic justice is health justice is gender justice and so on. This is even more evident as criminalization and state violence grow. Fortifying these connections will show anti-abortion state actors that the ultimate power is with us, not them.
Image: Palash Jain/Unsplash.
