A Record....

Criminalizing Pregnancy: A Record Number of Women Were Prosecuted the Year After Dobbs

They were targeted for substance use, miscarriages, and stillbirths, largely driven by fetal personhood laws.

Nina Martin

One night in March of 2023, Amari Marsh went to the bathroom and suffered a miscarriage. “I screamed because I was scared, because I didn’t know what was going on,” she recently recalled. An at-home pregnancy test in late 2022 had come back positive. But the South Carolina college student said she continued to have her period—at least that’s how she interpreted the bleeding—so didn’t seek out prenatal care, figuring the test result must have been wrong.

Then, a few months later, Marsh told a reporter from KFF Health News, she began to experience severe cramping, “way worse” than regular menstrual pain. Two emergency room visits later, the 22-year-old biology major learned she was pregnant after all. Back at home that night, the contractions returned. Marsh woke up, rushed to the toilet, “and when I did, the child came.” 

Miscarriages are extremely common in the US; among confirmed pregnancies, 10 to 20 percent will end in a loss. What happened to Marsh next is also becoming horrifically frequent in the post-Roe v. Wade era, according to a new report by the legal advocacy group Pregnancy Justice. Instead of treating her miscarriage as the health crisis and personal tragedy it was, prosecutors eventually charged her with murder/homicide by child abuse—punishable by 20 years to life in prison. Marsh spent three weeks behind bars, followed by another 13 months on house arrest, tracked by an ankle bracelet. She was finally cleared by a grand jury this past August, KFF said. 

The Supreme Court’s landmark 2022 ruling in Dobbs v. Jackson Women’s Health Organization  “open[ed] the door to government intrusion into pregnancy in unprecedented ways,” Pregnancy Justice says, “throwing suspicion on pregnancy loss, particularly outside medical settings.” In the first year after Dobbs, at least 22 women around the US faced criminal prosecution after suffering miscarriages, stillbirths, or the death of babies born prematurely, the organization reports.

The Dobbs decision didn’t just unleash a raft of laws restricting and banning abortion—it also seems to have made authorities more skeptical of women whose pregnancies end prematurely for reasons that have nothing to do with abortion. “Most of the time, we don’t know why a pregnancy or infant demise happened,” says Wendy Bach, a law professor at the University of Tennessee Knoxville, who co-authored the report. “But in this post-Dobbs era, pregnancy loss is extremely suspicious. It can lead to criminal investigation, criminal charges, incarceration, and family separation.”

Pregnancy-loss cases represented just a fraction of the prosecutions tallied by Pregnancy Justice over 12 months. In total, Bach and her team found at least 210 cases in which authorities initiated charges against pregnant people for crimes related to pregnancy or birth. That’s a record number of pregnancy-related prosecutions in a single year—and, the researchers say, it’s almost certainly an undercount.

More than 200 of the prosecutions involved allegations of substance use during pregnancy. In almost every case, authorities—driven by the idea that the fetus can be the victim of a crime perpetrated by its pregnant mother—charged women using statutes that criminalize child endangerment, neglect, or abuse. By contrast, despite widespread fears that women and medical providers might be criminally charged for obtaining or performing abortions in states with draconian abortion bans, Pregnancy Justice found only a handful of cases that specifically mentioned alleged abortions, attempted abortions, or “researching or exploring the possibility of an abortion.” Only one of those defendants was charged under a law making abortion a crime.

“If we focus only on abortion laws, we miss a crucial part of the picture,” Lourdes Rivera, president of Pregnancy Justice, said at a media briefing. “Prosecutors don’t need to rely on specific criminal abortion laws to prosecute pregnant women. By states and courts granting legal rights to fetuses, embryos, and fertilized eggs, prosecutors are able to use other laws, such as [child] neglect or endangerment” to bring charges.

More than half of the post-Dobbs prosecutions occurred in Alabama, where the state supreme court has enshrined fetal personhood into the law in multiple ways and recently ruled that embryos are “extrauterine children.” The other states with the most cases—Oklahoma and South Carolina—also have high court precedents protecting fetal rights. “Without fetal personhood, pregnancy criminalization could not exist,” the report says.

The report contains numerous other ominous findings. For example, more than 90 percent of cases involved statutes that don’t require authorities to prove that any harm was done to a fetus or baby. Rather, prosecutors only have to show that a woman’s conduct supposedly posed some risk to her pregnancy. In 15 cases, the “evidence” included a failure to obtain prenatal care; in other cases, women allegedly failed to seek help during or after birth or gave birth in a supposedly dangerous setting—for example, at home. “To accuse women of not having prenatal care when we’re in the midst of a maternal health care crisis, and to weaponize it as evidence of a crime–that’s disturbing,” Bach says.

And almost 60 percent of cases involved what Bach calls the “hospital-to-prison pipeline”—women prosecuted based on evidence collected by their medical providers. “Pregnant people are often drug tested without their knowledge or consent during pregnancy and or during labor and delivery,” Bach told reporters. “Infants are drug tested without parental knowledge or consent. And the results of these tests are then shared, often first with family policing agencies which then share that information with law enforcement.” 

Pregnancy criminalization is not a new issue. From 1973 to June 2022, when Dobbs was decided, at least 1,800 people across the US already had faced prosecution and punishment for conduct and circumstances surrounding their pregnancies and pregnancy outcomes, according to previous Pregnancy Justice reports. As my colleagues at Reveal, Mother Jones, and elsewhere have reported, pregnant people have been prosecuted after they took prescription medications on the advice of their doctors, when they underwent treatment for a substance use disorder, when mental health crises led to suicide attempts, even when they fell down the stairs or were shot in the stomach by someone else. Untold numbers of other women have had their children removed to foster care for false positive drug tests and for using marijuana in states where it’s legal. 

The new report—the first in a three-year project examining pregnancy criminalization post-Roe—sees the one-year total of 210 cases as “an escalation” by law enforcement targeting women. Quite apart from abortion bans, the Dobbs ruling “emboldened state legislatures, judges, anti-abortion activists, and prosecutors to develop ever more aggressive strategies to protect fetal ‘victims,’” the report says.

Nonetheless, Pregnancy Justice cautions that it’s impossible to say whether the larger number of cases was due to shifts in the political and legal landscape surrounding pregnancy after Dobbs, or to improved methods for counting them by researchers. “The team suspects,” the report adds, “it may be both.”