Increased Risk of Criminal Prosecution for Pregnant Women Post-Dobbs #

A new report suggests that pregnant women in the United States now face an increased risk of criminal prosecution following the Supreme Court’s Dobbs decision, which revoked the federal right to an abortion.

Between June 2022 and June 2023, over 200 cases were recorded where pregnant individuals faced criminal charges related to pregnancy, pregnancy loss, or birth. This marks the highest number of such cases in a single year over decades of tracking.

Many of these allegations are rooted in the concept of fetal personhood, which extends legal rights to a fetus, embryo, or fertilized egg. This concept is a cornerstone of the anti-abortion movement.

The majority of cases from the most recent year allege some form of child abuse, neglect, or endangerment. Other charges include criminal homicide and drug-related offenses.

While the prosecution of pregnant individuals isn’t new, experts suggest that the overturning of Roe v. Wade may have emboldened this trend. Under Roe, it was impossible to advance fetal personhood arguments in a meaningful way, as the Supreme Court ruling protected the federal right to abortion and stated that Constitutional references to “people” did not apply to fetuses.

The data shows that the vast majority of pregnancy-related charges alleged substance use during pregnancy. In more than half of the cases, substance use was the only allegation made against the defendant. Over three-quarters of all defendants were low-income, and nearly all cases allowed prosecutors to charge pregnant people without having to prove harm to the fetus or infant.

In the year following the Dobbs decision, most pregnancy-related prosecutions occurred in states that have enshrined fetal personhood in their civil and criminal laws. More than half of the cases were in Alabama, where residents voted in 2018 to amend the Constitution to include protections for unborn life. Another third were in Oklahoma, and nearly a dozen were in South Carolina - all states where abortion is banned or heavily restricted.

The report suggests that the Dobbs decision has emboldened prosecutors to develop more aggressive strategies to prosecute pregnancy-related cases. This trend is directly tied to the legal doctrine of fetal personhood, which grants full legal rights to an embryo or fetus.

Advocates argue that to address this issue, healthcare needs to be separated from the criminal legal system, and policies and practices should be changed to ensure that pregnant people can safely access the healthcare they need without fear of criminalization. The report demonstrates that in post-Dobbs America, being pregnant places individuals at increased risk of not only dire health outcomes but also arrest.