Without Roe V. Wade, Pregnant Women May Face Arrest For All Kinds Of Behaviors

The criminalization of pregnancy is already an issue in the U.S. Experts warn it's about to get worse.

This article is part of a larger series titled “The End Of Roe.” Head here to read more.

After the leak of a bombshell draft opinion last month, the Supreme Court has now overturned Roe v. Wade, the landmark 1973 decision that protected the constitutional right to an abortion.

The ruling allows states to ban or dramatically restrict abortion access for millions of Americans. Already, lawmakers have proposed bills that would not only make abortion illegal, but also subject those who have abortions to criminal prosecution and even the death penalty.

But the scope of the Supreme Court’s decision has implications well beyond abortion. Many advocates have expressed concerns that the ruling will pave the way for more women to be prosecuted based on actions during their pregnancy, especially if they miscarry.

“We anticipate that the criminalization of pregnancy is going to get worse if Roe is overturned,” said Afsha Malik, a research and program associate at the National Advocates for Pregnant Women, or NAPW.

The Criminalization Of Pregnancy

The American College of Obstet­ri­cians and Gyneco­lo­gists defines the criminalization of pregnancy as “the punishing or penalizing of individuals for actions that are interpreted as harmful to their own pregnancies, including enforcement of laws that punish actions during pregnancy that would not otherwise be criminal or punishable.”

In recent years, there have been a large number of headline-making cases of women who were prosecuted in the U.S. after experiencing a miscarriage or stillbirth.

In January 2020, 19-year-old Brittney Poolaw suffered a miscarriage and went to Comanche County Memorial Hospital in Oklahoma for medical assistance. The teen was later arrested and charged with first-degree manslaughter because she disclosed to hospital staff that she had used marijuana and methamphetamine while pregnant. Unable to afford her $20,000 bail, Poolaw remained in jail for a year and a half and, after a one-day trial, was convicted and sentenced to four years in prison.

“An overzealous prosecutor blamed Brittney for the demise of her fetus without scientific backing,” Malik said, noting that the medical examiner’s report cited multiple factors contributed to the miscarriage ― including a congenital abnormality, placental abruption and chorioamnionitis.

“What the state is doing in Oklahoma and elsewhere is they’re blaming, charging and jailing these women for their miscarriages and stillbirths,” Malik said. “We know of nine other open cases in Oklahoma where women are being criminalized in relation to their pregnancies or pregnancy outcomes. Instead of empathy or medical care, the state employs this punitive, harsh and honestly inhumane response to pregnancy loss.”

And it’s not just happening in red states. In 2018, Adora Perez of Hanford, California was charged with murder after delivering a stillborn baby. The prosecutor argued that her meth use caused the stillbirth, and she spent more than four years in prison before the charge was eventually dropped. Hanford resident Chelsea Becker similarly spent 16 months in prison after her 2019 stillbirth until a judge dismissed the case.

The NAPW tracked instances of pregnancy criminalization and found that more than 400 pregnant women were arrested, detained or subjected to forced medical interventions between 1973 (the year of the Roe v. Wade decision) and 2005. Between 2006 and 2020, that number more than tripled to over 1,300 cases of pregnancy-related criminalization.

“Instead of empathy or medical care, the state employs this punitive, harsh and honestly inhumane response to pregnancy loss.”

- Afsha Malik of the National Advocates for Pregnant Women

“From our research, we know that people with capacity for pregnancy can and will become targets by the state for criminal prosecution, legal surveillance and civil detention if Roe is off the books,” Malik said. “We’ve already documented more than 1,700 cases since Roe, and that’s likely an undercount. The rate has rapidly increased in a short amount of time.”

Although most of these cases involve drug use, there are plenty of examples of pregnant people facing arrest and detention due to other behaviors or events.

In 2019, Alabama resident Marshae Jones was charged with manslaughter because she suffered a pregnancy loss after being shot in the abdomen five times. A grand jury declined to indict her shooter based on the state’s “stand your ground” law ― but the same panel concluded that the expectant mother had “intentionally caused the death” of her unborn child by “initiating a fight knowing she was five months pregnant.”

At nine months pregnant, a Tennessee woman was reportedly arrested in 2014 after driving without a seatbelt. The warrant for her arrest stated that she had engaged “in conduct which placed her baby in eminent danger or death or serious bodily injury.”

And in 2013 in Indiana, Bei Bei Shuai was charged with murder and attempted feticide following her suicide attempt, which led to the death of her unborn child.

Different Legal Standards

The NAPW’s data also includes instances of pregnant people being arrested or charged for things like falling down, being diagnosed with HIV or giving birth at home. Even in cases of healthy births, mothers have been prosecuted.

“People often end up in prisons for behaviors that would not lead to that if they weren’t pregnant, so when you’re pregnant, you’re held to a separate legal standard,” said Grace Howard, an assistant professor of justice studies at San Jose State University who is writing a book titled “The Pregnancy Police: Conceiving Crime, Arresting Personhood.”

“In my research, I’ve found someone who had a reckless endangerment of a minor charge tacked onto a set of charges because in their attempt to evade police, they were running while they were pregnant,” she added. “Another person was reported to the department of family services after eating poppyseed cake while they were pregnant.”

Howard noted that people have been threatened with removal of their children for refusing to comply with “arguably unnecessary medical interventions” during their pregnancies as well.

“What makes this issue so gruesome and awful is that depending on the political and legal climate of the state, states criminalize and punish families differently.”

- Malik

“Adults with a sound mind are allowed to reject medical treatment ― I guess unless you’re pregnant,” she said. “And if you’re not pregnant and test positive for illegal drugs at the hospital, we don’t incarcerate you for that. But if you’re pregnant, we do.”

Legal principles aside, there are also practical issues with these criminal charges. As Poolaw’s case highlights, it’s medically difficult to isolate a sole cause for a pregnancy loss. Miscarriage is incredibly common, affecting up to 20% of known pregnancies.

When it comes to pregnant people who use drugs, they tend to have a number of other risk factors for pregnancy complications ― including poverty, homelessness, poor nutrition, smoking and other health issues.

The Big Gray Area

At least 38 states have fetal homicide laws, which were intended to protect vulnerable pregnant people from violence from others but are increasingly being used to punish pregnant people for their own behavior or pregnancy outcomes.

“What makes this issue so gruesome and awful is that depending on the political and legal climate of the state, states criminalize and punish families differently,” Malik said. “You’ll see a rogue prosecutor expanding an already existing law to include a fertilized egg, embryo or fetus as a human being and then use this interpretation of fetal personhood to criminally charge a pregnant person for perceived harm to the fetus.”

She pointed to the example of Alabama and its chemical endangerment law.

“The legislature first passed this law to criminalize people who were exposing their living children to meth labs that they were creating in their homes,” Malik said. “But over time that statute was expanded to include fetuses. So now when a pregnant person in Alabama admits to using a substance or there’s an indication of substance use in a toxicology report ― or even an allegation of substance abuse while pregnant ― they can be arrested and charged with chemical endangerment.”

Low-income women and women of color are disproportionately targeted in the criminalization of pregnancy.

“Like so many things in our criminal justice system, it’s applied in a really haphazard way,” Howard said. “Pregnant and postpartum women of color are more likely to be drug tested and more likely to be reported to authorities when they test positive.”

She noted that even within the same state, certain counties are more likely to report and arrest people for pregnancy-related charges.

“The thing that’s really alarming to me is even with Roe in place, there have been thousands of arrests of people for crimes against their own pregnancies throughout the U.S., and most of these are happening in the absence of any law or court finding that explicitly says a pregnant person can be held criminally responsible for what they do and how it concerns their pregnancy,” Howard said.

“There’s a great deal of maneuvering and gray area, but because they tend to be targeting the most marginalized people, they tend to get away with that legal gray area,” she continued.

There's a patchwork of different laws and practices across states when it comes to prenatal drug testing at hospitals.
Cavan Images via Getty Images
There's a patchwork of different laws and practices across states when it comes to prenatal drug testing at hospitals.

Even when the police aren’t directly involved, punitive family court systems and child protective services have subjected pregnant and postpartum people to invasive regulation and surveillance.

Alicia Beltran of Jackson, Wisconsin, was forced to spend months in a drug treatment facility during her pregnancy after sharing during a routine prenatal checkup that she had overcome a past struggle with prescription drug abuse. A skeptical medical provider insisted she take an anti-addiction drug, but she refused.

She was subsequently shackled and forced to appear in family court, where she was not provided with an attorney ― although a lawyer had been appointed to represent her fetus. Beltran was ordered to go to an inpatient drug addiction treatment program that was located two hours from her home and did not offer the prenatal care she needed. She lost her job as a result.

The Future Advocates Fear

Advocates believe cases like Beltran’s serve as an ominous warning of what’s to come without Roe on the books.

“Substance use in pregnancy is already so stigmatized, so in some ways, the general public can get on board with criminalizing that,” Malik said. “But what people don’t realize is that if Roe is overturned, this is gives state actors the power to criminalize anything they think is harmful to the fetus. More minute behaviors that are common everyday things ― like drinking coffee ― can be used to funnel people into this system.”

Having a glass of wine, eating deli meats and soft cheeses, exercising too hard, getting up to take care of your other children during your doctor-ordered bedrest, taking your prescribed antidepressants ― these are all actions that can have a negative impact on pregnancy and thus could serve as grounds for arrest in the future.

“It’s a slippery slope, especially as pregnancy criminalization happens at the whims of state actors and prosecutors,” Malik said.

Howard noted that arresting someone like Brittney Poolaw for the loss of her pregnancy ― while she legally could have had an abortion ― presents an inconsistency for many judges and prosecutors, which leads to the dismissal of many of these cases.

“But if this has already been happening with the protections of Roe in place, imagine what will happen if that contradiction isn’t there,” she said.

“[W]hat people don’t realize is that if Roe is overturned, this is gives state actors the power to criminalize anything they think is harmful to the fetus.”

- Malik

Subjecting more expectant parents to criminal charges related to their pregnancies could also have another dangerous consequence: discouraging people from seeking prenatal care.

“There’s a big threat to healthcare if patients see that the medical history they share with doctors can be passed along to law enforcement and used to put them in jail,” Malik said. “In states like Alabama, Oklahoma and Wisconsin, we’re seeing eroded trust between patients and providers.”

Although medical and public health groups like ACOG oppose punishment for drug use during pregnancy, 25 states and the District of Columbia require health care providers to report suspected prenatal drug use.

This system incentivizes patients to withhold important medical information or avoid prenatal care altogether. Plus, lawmakers’ definitions of suitable prenatal care or behavior for a pregnant person can differ from their doctor’s advice.

“Doctors and nurses are becoming this new arm of the state, often out of fear that if they don’t share a positive toxicology report or other information, they may themselves be criminally charged or lose their medical license,” Malik said. “In some states, they have to report any positive drug result, even if there are no signs of withdrawal or other causes for concern. You can’t conclude that a child is is abused or neglected solely based on the presence of a chemical compound.”

After Tennessee passed a law that explicitly made it a crime to use drugs during pregnancy, medical providers noticed increases in births occurring outside hospital settings, as well as instances in which pregnant people had received no prenatal care at all.

“In one case, a woman went into labor and tried to flee across state lines because she knew she’d test positive for drug use but didn’t want her baby taken away,” Howard said. “She ended up giving birth on the side of the highway. In another, there was a pregnant teenage girl who had smoked pot. She gave birth completely unassisted in a motel room because she was afraid of what would happen.”

To make matters worse, there’s also fear that pregnant people’s feelings about their pregnancies could be used as evidence against them ― which discourages talking about difficult emotions or concerns.

“We saw a case where a person was arrested for falling down the stairs while pregnant because they told hospital staff that they had contemplated an abortion in the past,” Malik said.

This practice isn’t limited to conversations with medical professionals. In a high-profile case out of Indiana, Purvi Patel’s text messages to a friend expressing ambivalence about her pregnancy were used as evidence that led to her conviction and 20-year sentence for feticide and child neglect.

Howard expressed concerns that Patel’s case opened the door for expectant parents to be charged for their miscarriages or stillbirths if they’d previously expressed any doubts about their pregnancies.

“Even with Roe in place, it’s alarming,” Howard said. “We already have a system that has essentially decided pregnant people don’t have as many rights. The door has been cracked for awhile, but it’s about to swing wide open.”

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