The work of Pregnancy Justice in defending the rights of pregnant people against criminalization
“Pregnancy criminalization” occurs when a pregnant person is arrested for reasons related to their pregnancy or when terms of bail, sentencing, or probation are tightened because they become pregnant after they are charged with an unrelated crime.
In most cases, pregnancy provides a “but for” factor, meaning that but for the pregnancy, the criminal penalty taken against the pregnant person would not have occurred.
Pregnancy Justice is a non-profit US organization “dedicated to defending the rights of pregnant people against criminalization and other rights violations because of pregnancy and all pregnancy outcomes.” It was founded in 2001 by Lynn Paltrow as National Advocates for Pregnant Women (NAPW), supporting abortion rights. They changed their name to Pregnancy Justice on 15 November 2022. Their work has included documenting “over 1,700 cases of pregnancy-related arrests, detentions and equivalent deprivations of physical liberty from 1973 to 2020.” (From Wikipedia)
In recent years, research has uncovered the existence of many instances of pregnancy criminalization in a large number of countries. Uncovering, sharing information on and addressing these cases, and thereby trying to stop future criminalization, is a relatively unknown form of action that deserves to become far more common.
Pregnancy Justice also publishes information about pregnancy criminalization, with the aim of preventing and ending it. They have recently published two website-based reports on these cases, looking at the before-and-after differences when the constitutional right to a safe, legal abortion was removed in the USA by the anti-abortion majority of the US Supreme Court, in the case called Roe v. Wade (“Dobbs” for short). These are:
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Pre-Dobbs Pregnancy Criminal Cases
There were 1,396 cases of criminalized pregnancy in the U.S. between January 2006 and June 2022.
Pregnancy Justice identified cases of criminalized pregnancy in 46 of the 50 U.S. states via legal databases, referrals from experts, the organization’s own involvement in cases, and media coverage. Case documentation was gathered from public records requests, court dockets, internet searches, and direct contact with the attorneys or parties involved in the cases. The case materials were reviewed and data about the cases were collected systematically.
Fetal personhood is a legal concept that either extends the protections of all state laws to fetuses and acknowledges all rights, privileges, and immunities on their behalf; or defines fertilized eggs, embryos and/or fetuses as “legal persons” and as separate from pregnant people.
Two-thirds (67.5%) of the pregnancy criminalization arrests come from Alabama, Oklahoma, or South Carolina — states that have high court decisions that expanded definitions of “child” to include fetuses, fertilized eggs, and embryos, in effect applied to penalize and regulate pregnant people. Pregnancy criminalization is typically carried out under the guise of addressing the issue of pregnancy and substance use. The arrests represent the morphing of the fetal personhood movement and the war on drugs. In 95.5% of cases where the grounds for arrest were documented, the reasons given for the arrest included allegations of substance use.
State laws generally make it a crime for members of certain professions — such as social workers, teachers, and healthcare providers — to withhold information about suspected or known instances of child abuse or neglect from state family regulation agencies. These people are referred to as mandated or mandatory reporters. More than half of states have laws that require reporting related to people’s use of alcohol or drugs during pregnancy and/or define alcohol or drug use during pregnancy as child abuse or neglect. Because of this legal apparatus, the healthcare and family regulation systems have come to play a significant role in sustaining efforts to criminalize pregnancy.
One in three arrests documented in this report (33.8%) were first instigated by a medical professional and two in five arrests (42.6%) involved family regulation workers. Many of these reports were initially made in relation to civil child abuse mandatory reporting laws, hospital policies, or the misperception that such reporting was required under the laws and policies. Often these arrests occurred after routine drug testing such as during prenatal care appointments. In the majority of cases, there was a live birth with no mentions of health problems in the data.
Pregnancy Justice makes the following recommendations to address pregnancy criminalization:
-Repeal fetal personhood legislation
-Promote pregnant people’s personhood
-Follow scientific evidence: treatment options not criminalization of pregnancy and substance use
-Ensure pregnant people are not left behind in decriminalization efforts for drug use
-Support proactive approaches to decouple healthcare and policing
-End mandated reporting of the co-occurence of substance use and pregnancy alone
-Improve, promote and expand informed consent laws
-Pass affirmative protections
-Restore and protect abortion rights
-Ensure criminalized pregnant people have a robust defense.
SOURCE: https://www.pregnancyjusticeus.org/pre-dobbs-pregnancy-criminalization/
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Post-Dobbs Pregnancy Criminal Cases
In the first year after Dobbs, prosecutors initiated at least 210 cases charging pregnant people with crimes related to pregnancy, pregnancy loss, or birth.
Documented prosecutions were initiated in 12 states: Alabama, California, Idaho, Kentucky, Mississippi, New Mexico, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, and Wyoming. While prosecutions were brought in all of these states, six collectively account for the majority of the reported cases, with Alabama (104) and Oklahoma (68) accounting for the overwhelming majority.
Slightly more than three-quarters of the defendants were low-income individuals. Of the 210 cases of documented pregnancy-criminalization cases, 166 contained information concerning the outcome of the pregnancy. Cases involving a live birth represent the overwhelming majority (144) of documented charges and 44 were unknown. Fetal/infant demise cases include allegations that a defendant committed acts during a pregnancy that led to a pregnancy loss, including stillbirth or miscarriage, or a newborn’s death.
Prosecutors used a wide variety of criminal statutes to charge the defendants in these cases, often bringing more than one charge against an individual defendant. In total, the 210 defendants faced 220 charges for conduct related to pregnancy, pregnancy loss, or birth. The majority of charges (198/220) asserted some form of child abuse, neglect, or endangerment.
Supporters of pregnancy-related prosecutions purport to do so in the name of protecting the fetus from harm perpetrated by the pregnant person. But prosecutors overwhelmingly charged pregnant people with offenses that allow them to obtain convictions without “proving” that the pregnant person actually harmed the fetus or infant. The lack of a harm requirement was present in 191 of the 220 charges that alleged conduct related to pregnancy, pregnancy loss, or birth.
Pregnancy criminalization continues to co-opt health care providers as law enforcement to achieve compliance with its aims. Pregnant people are often drug tested without their knowledge or consent during pregnancy and/or labor and delivery. And while pregnancy-related prosecutions focuses on the use of criminal law and criminal systems to punish pregnancy-related conduct, the criminal legal system works hand in hand with the family policing system to surveil and punish pregnancy-related conduct.
Pregnancy Justice makes the following recommendations to address pregnancy criminalization:
-Use federal civil rights agencies to challenge pregnancy criminalization
-Protect against the use of the Comstock Act to effect a national abortion ban
-Ensure that maternal health initiatives address pregnant people with substance use disorder and other mental health disorders
-Expand and enforce privacy protections such as the Health Insurance Portability and Accountability Act
-Pass state laws increasing protections for pregnant people.
SOURCE: https://www.pregnancyjusticeus.org/post-dobbs-pregnancy-criminalization/
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Fetal rights
Laws and judicial decisions that grant fetuses — and in some cases embryos and fertilized eggs — the same legal rights and status given to born people, such as the right to life, is “fetal personhood.” When fetuses have rights, this fundamentally changes the legal rights and status of all pregnant people, opening the door to criminalization, surveillance, and obstetric violence.
Currently, 17 U.S. states have established fetal rights by law or judicial decision to apply to criminal law or both criminal and civil laws. At least 24 states include this type of language in laws regulating or prohibiting abortion care (e.g., using language such as “member of species Homo sapiens,” “unborn human being,” “unborn human individual,” “dignity of all human life,” “persons, born and unborn,” or “class of human beings”).
In vitro fertilization may be at risk of legal challenges depending on a combination of state laws, including whether “fetal rights” are established and whether a state’s wrongful death statute could be construed as including frozen embryos.
Advance directives are written documents that detail the end-of-life treatment you would or wouldn’t want if you are terminally ill or suffering a life-threatening medical event and unable to communicate treatment decisions yourself. If you are pregnant, however, those documents may be invalidated by your state’s laws. These pregnancy exclusions in advance directive laws can result in pregnant people receiving treatment they don’t want or need. Everyone, including pregnant people, should be able to direct their care. Only 23 US states do not have advance directive exclusions based on pregnancy.
Criminal feticide, or fetal homicide, refers to a type of law that authorizes homicide (murder) charges for “causing” a pregnancy loss such as miscarriage or stillbirth. Originally championed as a way to protect pregnant people from violence caused by another person, feticide laws have been manipulated to criminalize people for the loss of their own pregnancy and indirectly normalize the concept of “fetal rights”. Feticide laws have also encouraged the expanded application of other criminal laws to pregnancy. Currently, there are 38 states that could authorize homicide charges to be brought for causing the loss of a pregnancy, even if they have not already.
Lastly, five states can currently authorize state courts to commit a pregnant person to substance use treatment without their consent.