Women have long been at risk of being arrested for their behavior during pregnancy — and advocates worry that state laws passed since the fall of Roe v. Wade does make such sanctions more common.
A new report Since Pregnancy justice, a legal advocacy organization for pregnant people, reveals that hundreds of pregnant Americans were criminalized due to pregnancy outcomes, including miscarriage, even when Roe was in effect. The American College of Obstetricians and Gynecologists defines the criminalization of pregnancy, which penalizes people for actions that could be considered harmful to their fetus, even if those behaviors would not otherwise be considered criminal.
Almost 1,400 criminal arrests occurred between 2006 and June 2022, according to the Pregnancy Justice report, for things like using illicit substances or drinking alcohol during pregnancy. Other cases include pregnant women being criminalized for not wearing seat belts, refusing a cesarean section, not receiving prenatal care during their pregnancy and being HIV positive.
“We should all be extremely concerned that pregnant women are being arrested, prosecuted, separated from their children and incarcerated for actions that should not be illegal,” said Lourdes Rivera, president of Pregnancy Justice, during a press conference Tuesday. .
Many of the stories included in the Pregnancy Justice report made national headlines. In 2014 for example, a woman from Tennessee nine months pregnant, was arrested for driving without a seat belt. She had engaged “in conduct that placed her baby in imminent danger of death or serious bodily injury,” according to the arrest warrant issued for her.
“The Dobbs decision essentially opened the doors to the continuation and increase of these types of criminalizations. »
– Lourdes Rivera, Pregnancy Justice
According to the report, geography and income level are the main factors when it comes to the criminalization of pregnancy. Low-income white pregnant women are the most criminalized group, while low-income black pregnant women are also overrepresented in the data.
About 80% of these arrests took place in five Southern states: Alabama, Mississippi, South Carolina, Tennessee and Oklahoma. Three of those states – Alabama, South Carolina and Oklahoma – recognize fetuses as persons in their penal codes, an increasingly common type of legislation known as fetal personhood laws.
“We can directly link this increase in criminalization to the expansion of the growing ideology of fetal personhood. The idea that a fetus or fertilized egg has the same rights, if not more, than the person carrying the pregnancy,” Rivera said. “Over the period we are examining, from 2006 to June 2022, fetal personhood has gained influence and is increasingly entrenched in laws and judicial decisions.”
Fifteen states had some form of criminal fetal personhood laws in effect before Roe fell last summer. Many, like South Carolina and Alabama, focus on drug use during pregnancy and have historically been used as a weapon against the most marginalized, including poor women and people of color.
On 95% of nearly 1,400 cases of the criminalization of pregnancy concerned substance use during pregnancy, Pregnancy Justice found. The three most common substances found in these cases were methamphetamine, cocaine and marijuana; the latter is legal in many states. A quarter of the cases involved the alleged use of legal substances, such as prescription opiates, nicotine and alcohol.
One case included in the Pregnancy Justice report was that of a 19-year-old woman from Oklahoma who, in 2020, went to the hospital after suffering a miscarriage, but she was arrested and charged with manslaughter after telling hospital staff she had used marijuana and methamphetamine. pregnant. The young woman was unable to post her $20,000 bail and remained in jail for a year and a half before being convicted of involuntary manslaughter and sentenced to four years in prison.
And these cases aren’t just happening in red states. A pregnant woman in California gave birth to a stillborn baby in 2018. She was later charged with murder and the prosecutor in her case argued that her meth use caused the stillbirth, and she spent four years in prison before the charge is dropped.
Fetal personhood laws focused on pregnant women and drug use, like those in place before the fall of Roe, allowed prosecutors to charge pregnant women with “chemical endangerment of a child.” For example, Alabama adopted its chemical hazards law in 2006 to protect children from dangerous fumes and chemicals found in home meth labs.
Soon after, prosecutors began applying the law to pregnant drug users, even though the law contained nothing about fetuses. Prosecutors expanded the interpretation of the law, holding that a fetus is a child and that by ingesting drugs, the pregnant person causes chemical harm to the so-called child. As a result, Alabama law was used to criminalize dozens of pregnant women in the state when they tested positive for an illegal drug or legal medication.
The Pregnancy Justice report also contextualizes the history of substance use among pregnant women in the United States, highlighting the racist and politically motivated “war on drugs” campaign of the 1980s.
“The criminalization of pregnancy first became widespread in the 1980s, amid the sensationalized, racialized, and high-profile ‘crack baby’ epidemic,” the report reads. “This equipped the anti-abortion movement with a perfect narrative to advance its agenda: it played on racist and sexist tropes about black women and their right to reproduce…and it created a new category of victims of crimes: the innocent fetus, the fertilized egg. , or embryo. Black women were overwhelmingly the targets of the criminalization of pregnancy in the first decades after Roe.
Chemical endangerment and other fetal personhood laws are still on the books in these 15 states and will likely target even more pregnant women without the protection of Roe. Last year, Georgia became the first state to pass a fetal personhood law after the Supreme Court’s decision in Dobbs, which overturned Roe.
“The Dobbs decision essentially opened the doors to continuing and increasing these types of criminalizations,” Rivera said. “Unless we do something, this is unfortunately going to become the trend.”
Go here to read the Pregnancy Justice report in full.
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