Introduction to Pregnancy-Related Prosecutions
Melinda Johnson’s life used to look very different. Two years ago, she was charged with chemical endangerment, among other drug-related offenses, for using methamphetamine while she was pregnant. Johnson, then 42, said that the pregnancy was unplanned and that she was grappling with a substance use disorder. People misunderstand addiction and recovery, she said. “It’s just not something that happens at the snap of the finger. There’s no switch to shut that off.”
The Rise in Prosecutions
Many women have found themselves in the same position. Over a two-year period, prosecutors across 16 states charged more than 400 people with pregnancy-related crimes, with most of the charges originating in states with near or total abortion bans, according to a new report released Tuesday. The prosecutions were initiated in the two years after the Supreme Court struck down Roe v. Wade in 2022, according to Pregnancy Justice, a nonprofit legal group that advocates for pregnant people, which released the report.
Concerns Over Abortion Rights
In the wake of that decision, Dobbs v. Jackson Women’s Health Organization, supporters of abortion rights expressed concern that losing the national right to abortion would bring increased scrutiny of women during pregnancy, pregnancy loss or birth. In Georgia, for instance, a woman was arrested and charged in March after, authorities said, she disposed of her miscarried fetus in a dumpster. The charges were ultimately dropped.
Methodology and Findings
Researchers at Pregnancy Justice say the number of prosecutions is likely to be higher than the 412 reported. Because of a change in methodology, they couldn’t say with certainty whether it’s higher than before Dobbs. “Without having the ability to look at every single county across the country, that is an alarming number,” said Dana Sussman, the group’s senior vice president. “And it should alarm all of us.”
Anti-Abortion Advocates’ Stance
Anti-abortion advocates have stressed that women seeking abortions won’t be criminalized under current abortion bans. While physicians can face prison time for performing abortions not covered by exceptions, the bans exclude the women from criminal charges. But the report notes that references to abortion have surfaced in some instances. In at least nine cases, it says, there were “allegations pertaining to an abortion.” In three cases, charging documents referred to abortion medication.
Common Charges and Allegations
The most common charges involved accusations of child abuse, neglect or endangerment, according to the report. Almost all the cases involved allegations of substance use during pregnancy. In 268 cases, or roughly 65% of the cases counted, that was the sole allegation of wrongdoing. Those prosecutions aren’t evenly spread. In Alabama, where nearly half of the cases were brought, some prosecutors have been particularly aggressive about charging pregnant women accused of drug use.
Personal Stories and Consequences
When Johnson was arrested two years ago, she was held in jail for weeks before she was transferred to one of the few rehab facilities in Alabama that takes pregnant women and those with children. Today, Johnson has joint custody of her 2-year-old daughter. The state has custody of her 11-year-old twin boys but allows them to live with her. Her plea deal enabled her to avoid jail time, but she said she owes thousands of dollars in fees and fines.
Criticisms and Opposition
The American College of Obstetricians and Gynecologists has opposed legislative efforts to criminalize pregnant drug users. “Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus,” it said in a brief. Although Alabama charged women with chemical endangerment before Roe’s fall, Sussman said, the Dobbs decision “further opens the door” to the concept of fetal personhood, in which legal rights are extended to fetuses or even embryos.
Fetal Personhood and Its Implications
Fetal personhood has been recognized through judicial decisions in the three states — Alabama, Oklahoma and South Carolina, according to an analysis by Pregnancy Justice — accounting for the most prosecutions in the group’s count. “This ideology around giving rights to embryos and fetuses is not theoretical,” Sussman said. “It has real-world implications, devastating implications for the rights of pregnant people.”
Conclusion
The rise in pregnancy-related prosecutions post-Roe is a concerning trend that highlights the need for a public health approach to addressing substance use during pregnancy. Rather than criminalizing women, efforts should focus on providing support and resources to help them overcome addiction and ensure the best possible outcomes for both mothers and babies. It is crucial to recognize the complexities of addiction and recovery and to address the root causes of substance use, rather than resorting to punitive measures that can have devastating consequences.
FAQs
- Q: How many pregnancy-related prosecutions have occurred in the two years since Roe v. Wade was struck down?
A: Over 400 people have been charged with pregnancy-related crimes across 16 states. - Q: What are the most common charges involved in these prosecutions?
A: The most common charges involve accusations of child abuse, neglect, or endangerment, often due to allegations of substance use during pregnancy. - Q: Do anti-abortion bans exclude women from criminal charges for seeking abortions?
A: Yes, while physicians can face prison time for performing abortions not covered by exceptions, the bans typically exclude the women from criminal charges. - Q: What is fetal personhood, and how does it relate to these prosecutions?
A: Fetal personhood refers to the concept of extending legal rights to fetuses or embryos. This ideology has been recognized in some states and can have implications for the rights of pregnant people, particularly in the context of substance use and abortion.
