USA – The Rise of Pregnancy Criminalization: A Pregnancy Justice Report

From 2006 to the 2022 reversal of Roe, we’ve documented nearly 1,400 cases of pregnancy-related criminalization across the U.S. State actors — including police, prosecutors, healthcare workers, family regulation workers, and judges — have deprived pregnant people of virtually every constitutional right in the name of protecting “unborn life.” The cases show that pregnancy outcomes other than abortion, including birth and pregnancy loss, have been far more likely to result in criminalization.

Key Findings

» The report found that 1,396 criminal arrests of 1,379 people (a small number of individuals are or were involved in more than one case) took place over the 16.5 years between January 1, 2006, and June 23, 2022, the day before the Dobbs ruling. This represents a startling increase compared to the findings of the 2013 Pregnancy Justice study, which reported 413 cases during a 33-year period: over three times as many cases in half as many years.

» While this study found cases of pregnancy criminalization in 46 states and US territories, nearly four in five (79.4%) arrests took place in just five southern states: Alabama (46.5%), South Carolina (13.0%), Tennessee (9.4%), Oklahoma (8.1%), and Mississippi (2.6%).4 Alabama had far and above the highest number of pregnancy criminalization arrests, representing almost half (46.5%) of the total. With the exception of Mississippi, these were the only states in the country that either had judicial decisions that expanded definitions of “child” to include fetuses in their criminal laws, or, in the context of Tennessee, had a law in place that explicitly criminalized the pregnant person if the newborn was born exposed to or harmed by a drug.

» More than 9 in 10 cases involved allegations of the co-occurrence of pregnancy and substance use. The three most common substances associated with pregnancy criminalization cases were methamphetamine, cannabis, and cocaine.

» A striking one-quarter of cases involved alleged use of legal substances, including prescription opiates (both prescription status known and unknown) (20.6%), nicotine (1.6%), and alcohol (2.5%).

» Nearly 85% of cases involved criminal charges against a pregnant person who was deemed legally “indigent,” meaning that they faced considerable financial hardship such that incurring legal fees would mean they would be unable to afford basic life necessities.

» Reports made by medical professionals or hospital-based social workers were the most common basis for pregnancy criminalization arrests. One in three cases were first instigated by a medical professional, and two in five involved family regulation workers.

» According to the case information available, poor Black pregnant people and poor white pregnant people bore the brunt of the consequences of pregnancy criminalization.

Conclusion and Recommendations 

Ending pregnancy criminalization will require concerted efforts to: reject the ideology of “fetal personhood”; address the stigma associated with substance use during pregnancy; increase knowledge of the evidence base supporting non-carceral approaches to substance use disorder as a public health problem; ensure that pregnancy criminalization across all pregnancy outcomes is considered a key concern in the fight to restore and expand abortion rights; elevate an understanding of the racial and sexist underpinnings of the criminalization of pregnant people; and attenuate the role of the social and healthcare systems in pregnancy criminalization. Without the protections of Roe, pregnant people across the country are more vulnerable than ever. The findings outlined in this report provide a roadmap for safeguarding their rights moving forward.

SOURCE: The Rise of Pregnancy Criminalization; SEE ALSO: Recommendations