In the year following the Supreme Court’s landmark Dobbs decision, which overturned the constitutional right to abortion, a new report has found that over 200 pregnant women faced criminal charges for conduct related to their pregnancy, pregnancy loss, or birth. This troubling trend highlights the growing influence of the concept of “fetal personhood” and its impact on the rights and freedoms of pregnant individuals. Roe v. Wade and Dobbs v. Jackson Women’s Health Organization are two landmark Supreme Court cases that have significantly shaped the legal landscape surrounding abortion rights in the United States.
The Amnesty Grew to become a Focal point of Prosecution Against Those Suffering from Pregnancy
Using information from a report issued by the advocacy organization Pregnancy Justice, more than 200 pregnant women were charged with crimeswith their pregnancies, pregnancy losses, or births in the year-aftermath of Dobbs. Most of those were drug related, with two-thirds of the cases only making allegations around substance use during pregnancy.
Eighty percent of the reported incidents were in six states — Alabama, Mississippi, Ohio, Oklahoma, South Carolina and Texas. Alabama leads the nation in prosecutions, by a wide margin; it is responsible for nearly half of them. In a major factor, the state constitutional amendment enacted in 2018 declared fetuses people and promised to protect their rights.
The Role of Fetal Personhood
This report shines a light on one of the mechanisms, i.e., the legal fiction of “fetal personhood,” that has helped fuel these prosecutions. Rather than being targeted under individual abortion laws, most of the women were charged with offenses like child neglect or endangerment in which the fetus was treated as a victim. This expansion of fetal personhood has empowered prosecutors to use an array of criminal statutes against pregnant women thereby making many activities during pregnancy legally suspect.
Antiabortion lawmakers in a few other states — including Alaska, Illinois, Missouri, South Carolina and West Virginia — have also introduced fetal personhood bills in the bast couple of years but so far none has gotten out of committee. The question of fetal personhood is further to be taken up by states as they wrestle with the possibilities afforded by Dobbs.
Unintended Consequences of Criminalizing Pregnancy
Opponents of the prosecutions say they have had a chilling effect on pregnant people seeking help, especially for substance use disorders. While low-income defendants made up the majority of those affected, they were predominately white — a glaring illustration of the disparate impact on communities that are already marginalized
Worse, the charges are typically higher-penalty offenses—carrying stiffer fines and longer periods of imprisonment—than those imposed for the drug charges that a low-level trafficker might have been facing if she were not pregnant and trying to protect her baby. The result is that one can question the justice system is over-reacting to pregnancy conduct with how much fairness and proportionality.
Going forward, ensuring the protection of the rights and liberties of those who are pregnant — so they do not fall victim to being targeted as a criminal — is a priority for all of us as advocates, legal experts, policymakers too.
