A crime......

Pregnancy in America is starting to feel like a crime

The ripple effects of the fall of Roe extend far beyond abortion.

by Anna North

Imagine you’re eight months pregnant, and you wake up in the middle of the night to a bolt of pain across your belly. 

Terrified you might be losing your pregnancy, you rush to the emergency room — only to be told that no one there will care for you, because they’re worried they could be accused of participating in an abortion. The staff tells you to drive to another hospital, but that will take hours, by which time, it might be too late.

Such frightening experiences are growing more common in the wake of the Supreme Court’s 2022 Dobbs v. Jackson Women’s Health decision, as doctors and other medical staff, fearful of the far-reaching effects of state abortion bans, are simply refusing to treat pregnant people at all. 

It’s part of what some reproductive health activists see as a disturbing progression from bans on abortion to a climate of suspicion around all pregnant patients. “People are increasingly scared even to be pregnant,” said Elizabeth Ling, senior helpline counsel at the reproductive justice legal group If/When/How.

The fall of Roe has led to an ever-widening net of criminalization that can ensnare doctors, nurses, and pregnant people alike, leading to devastating consequences for patients’ health, experts say. 

Complaints of pregnant women turned away from emergency rooms doubled in the months after Dobbs, the Associated Press reported earlier this year. Concerns about such treatment, combined with stories of people like Kate Cox, who was denied an abortion despite the risks her pregnancy posed to her health, have made some Americans afraid of conceiving: In one recent poll, 34 percent of women 18 to 39 said they or someone they knew had “decided not to get pregnant due to concerns about managing pregnancy-related medical emergencies.” 

Such surveys, along with ER records and calls to helplines, reveal a sense that in a post-Dobbs America, any pregnancy can be dangerous — to patients, to doctors, or both. “The fact that people are viewing the condition of pregnancy as something that makes them vulnerable to state violence is just so heartbreaking,” Ling said.

Americans are facing prosecution after miscarriage

The Dobbs decision has created an environment in which people experiencing miscarriage are treated as criminals or crimes waiting to happen, advocates say — or sometimes both. 

In October 2023, an Ohio woman named Brittany Watts visited a hospital, 21 weeks pregnant and bleeding. Doctors determined that her water had broken early and her fetus would not survive, but since her pregnancy was approaching the point at which Ohio bans abortions, a hospital ethics panel kept her waiting for eight hours while they debated what to do. She eventually returned home, miscarried, tried to dispose of the fetal remains herself, and was charged with felony abuse of a corpse. 

The charges were ultimately dropped, but experts say her case is part of a larger pattern. “There has become this hypersurveillance, hyperpolicing, hyperinterrogation” of pregnant people in America, said Michele Goodwin, a professor of constitutional law and global health policy at Georgetown and the author of Policing the Womb: Invisible Women and the Criminalization of Motherhood.

That surveillance isn’t entirely new, advocates and scholars say. Black pregnant women, especially, have been targets of suspicion for generations, stereotyped as drug users or “welfare queens” and even arrested when they tried to seek maternity care, said Goodwin. “There are cases of Black women having been dragged out of hospitals, literally in shackles and chains,” Goodwin said.

Black women and other women and girls of color have also been disproportionately targeted for arrest or investigation following miscarriages or stillbirths. In 1999, Regina McKnight, a 22-year-old Black woman in South Carolina, became the first person prosecuted for homicide after experiencing a stillbirth, according to Capital B. She was convicted and sentenced to 12 years in prison for endangering her pregnancy through drug use, but her conviction was eventually overturned.

But now, the atmosphere of criminalization around pregnancy is “spreading into wider and wider groups of people,” said Karen Thompson, legal director of the group Pregnancy Justice, which tracks the criminalization of pregnant people.

Black advocates have long cautioned that while the criminalization of pregnancy might affect Black and brown women today, “tomorrow it’s everybody,” Goodwin said. “Dobbs brought us into the tomorrow.”

Dobbs is making doctors scared to treat pregnant patients

In the tomorrow of post-Dobbs America, doctors and hospital staff now fear criminal charges if they are found to have performed an abortion in violation of their state’s bans. These bans have exceptions for saving the life, or sometimes the health, of the pregnant person, but the exceptions are often extremely narrow or unclear, forcing medical professionals to choose between refusing to treat a severely ill patient and losing their license or going to jail. 

“The way the states write their statutes, there’s no deference to the medical judgment of the doctor,” said Sara Rosenbaum, an emerita professor of health law and policy at George Washington University. “It has had a profound chilling effect on any care in emergency departments, because physicians and hospitals are in a panic.”

That chilling effect is leading some doctors to refuse not just to perform abortions, but also to provide any care for pregnant people in crisis, lest their care draw scrutiny in a restrictive and uncertain legal environment. A week after the Dobbs ruling, a woman arrived at Falls Community Hospital in Marlin, Texas, nine months pregnant and having contractions, according to a federal investigation of ER visits. The doctor on duty refused to treat her, instead sending her to another hospital in Waco, the AP reported. The outcome of her pregnancy — and the impact on her health of delayed maternal care — are unknown.

In another case, a pregnant woman arrived at a North Carolina hospital complaining of stomach pain. Staff told her they could not perform an ultrasound, and she eventually gave birth in a car on the way to another facility 45 minutes away, the AP reported. The baby did not survive.

“We’re talking a level of outlandishness that is up there with The Handmaid’s Tale,” Rosenbaum said.

The Emergency Medical Treatment and Labor Act (EMTALA) requires all hospitals that accept Medicare to stabilize the medical condition of anyone who arrives at an emergency room, including pregnant people. But the medical interventions allowed under new state abortion laws are often less than what EMTALA requires, Rosenbaum said. 

Meanwhile, the Supreme Court in the coming days will decide a case that could gut EMTALA, giving hospitals even more leeway to turn away pregnant patients. “I don’t think it’s an understatement to say that the loss of EMTALA, or even just weakening of EMTALA, puts pregnant people’s lives at risk,” Ling said.

Even people who are not yet pregnant feel the widening effects of Dobbs. The If/When/How helpline has received calls from people who want to become pregnant, but are terrified that “they might experience an unexpected loss like a miscarriage, and still somehow be punished for experiencing that loss,” Ling said.

In recent months, she has heard herself say the words, “it is not a crime to be pregnant,” she told Vox. And yet, more and more, it feels like it is.