Pregnancy-Related Arrests Spiked During Last 16 Years, Report Finds
Legal experts who spoke with The Appeal warned the criminal justice system will continue to target pregnant people in the coming years.
Meg O'Connor Sep 19, 2023
Nearly 1,400 people were arrested for actions related to their pregnancies from 2006 through June 2022, according to a report released today by Pregnancy Justice, a nonprofit that defends pregnant people from criminalization. Most of those arrests occurred in five southern states—Alabama, South Carolina, Tennessee, Oklahoma, and Mississippi. Most cases involved allegations of substance use, even when there was no harm to the fetus or infant.
“Pregnant people are increasingly targeted for criminalization in ways that do not exist for people who are not pregnant, with dire consequences for themselves and their families,” Lourdes A. Rivera, president of Pregnancy Justice, said in a press release. “Halting criminalization requires repealing ‘fetal personhood’ laws and ending the collusion between the criminal and family regulation systems.”
The report reveals a substantial increase in the criminalization of pregnant people over the past decade and a half. In 2013, Pregnancy Justice released a report that found that law enforcement had criminalized 413 pregnant people in the three decades between 1973 and 2005. Pregnancy Justice’s new report found a threefold increase in criminal cases during the last 16 years.
The report links the rise of fetal personhood laws—which give fertilized eggs, embryos, and fetuses the same legal rights as people—to the heightened criminalization of pregnancy. Nearly 77 percent of cases where pregnant people were criminalized occurred in states that expanded the definition of child abuse to include fetuses, fertilized eggs, and embryos.
The report defines pregnancy criminalization as an instance in which someone is arrested for reasons related to their pregnancy or where terms of a person’s bail, sentencing, or probation are heightened because they became pregnant after being charged with an unrelated crime. Pregnant people were most often accused of child endangerment, substance possession, drug use, feticide, murder, or manslaughter, legally unauthorized abortion, failure to report a birth or death, tampering with remains or abuse of a corpse, fetal assault, or drug delivery.
Nine out of ten cases tracked by Pregnancy Justice involved allegations that a person had used substances, including marijuana, cocaine, or methamphetamine, while pregnant. One-quarter of such cases involved legal substances, such as prescription opiates, nicotine, and alcohol. One-third of the cases involved people accused of using marijuana.
“The playbook that legislators, politicians, and law enforcement officials have been establishing in the context of criminalizing pregnancy and substance use is going to be applied to abortions,” Emma Roth, senior staff attorney at Pregnancy Justice, said in an interview.
Prosecutors in multiple states, including Alabama and Oklahoma, frequently charged pregnant people with child neglect or endangerment for using any substance while pregnant—even when that drug or alcohol use did not affect the pregnancy. According to the report, two in three cases involved a live birth with no mention of negative health outcomes for the infant.
Alabama, which accounts for nearly half of all cases, also has one of the worst maternal mortality rates in the country. Studies have shown that pregnant people with substance use disorders are less likely to seek help if they live in a state that harshly criminalizes drug or alcohol use during pregnancy.
“We urge policymakers to include pregnant people within drug anti-criminalization efforts and embrace evidence-based approaches like access to comprehensive health care without fear or punishment,” said Rivera.
The report stated that poor Black and white people were the most likely to be criminalized during their pregnancies. In nearly 85 percent of criminal cases, courts deemed the pregnant person legally indigent, meaning they were destitute and unable to afford an attorney. Pregnant people were most commonly referred to law enforcement by medical professionals and hospital-based social workers.
Pregnancy Justice’s Roth said these cases rarely go to trial and typically result in plea agreements. Some people are sentenced to prison. Others get a suspended sentence or probation. Often, mothers lose custody of their babies for periods of time. Some people lose their parental rights. Babies may be placed with relatives or foster families.
“These children are taken away from their families, their communities, their siblings,” Roth said. “It isolates and harms them.”
Monica Raye Simpson, executive director of SisterSong Women of Color Reproductive Justice Collective, said in a press release that the report shows that it is vital to dismantle the broader carceral state to protect pregnant people.
“The findings in this report are a call to action, and anyone working to achieve greater bodily autonomy ought to heed that call,” Raye Simpson said. “We must challenge the systems that collude to criminalize pregnant people, ensure that neither poverty, gender, nor race is criminalized, and ensure everyone can get the care they need and live full, thriving lives without fear, stigma, or punishment.”
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