In the year Roe v Wade was overturned, at least 200 people in the US were prosecuted for conduct relating to their pregnancies – the highest number of cases in a single year ever recorded, according to a new report released on Tuesday.
The report, compiled by the advocacy group Pregnancy Justice, is the first comprehensive accounting of pregnancy-related criminal charges between June 2022 and June 2023, but researchers warn that it is still probably an undercount.
“To be perfectly honest, I think we’re scratching the surface of what is happening,” said Wendy Bach, a University of Tennessee law professor and the report’s principal investigator.
The vast majority of prosecutions documented in the report do not involve abortions. However, five cases mention allegations of an abortion, an attempted abortion, or “researching or exploring the possibility of an abortion”, according to the report. Only one was charged under a statute meant to criminalize abortions. The rest involved a bevy of other laws, such as a statute that bans the “abuse of a corpse”.
Four of those cases took place in states that ban abortion or are hostile to the procedure.
More than 200 of the 210 recorded prosecutions involve allegations of substance use during pregnancy. In almost 200 of the cases, prosecutors charged people using statutes that criminalize child abuse, neglect, or endangerment – charges that treat an embryo or fetus as a person, complete with rights and protections that may compete with that of the person carrying them. More than 100 prosecutions recorded by Pregnancy Justice took place in Alabama, a state whose supreme court recently ruled that embryos were “extrauterine children”.
Most of the cases also involved statutes under which prosecutors do not need to prove that any harm was done to a fetus or infant. Rather, prosecutors must show that a defendant posed some “risk” to the pregnancy – which could lead to criminalization of behavior that is not actually dangerous, advocates say.
“It’s ultimately, a lot of the time, based on someone’s perceptions of risky behavior, however they might define it, and it’s often based on stereotypes or outdated notions,” said Zenovia Earle, media and communications director for Pregnancy Justice.
People have faced criminal consequences over their pregnancies even before Roe fell. In just one example, Alabama police arrested Ashley Caswell, then two months pregnant, in 2021 for allegedly testing positive for methamphetamine and “endangering” her fetus, the Guardian reported last year. Jailed for the rest of her pregnancy, Caswell was forced to deliver her baby alone, in a jail shower, according to court and medical records.
Over three-quarters of the cases uncovered by Pregnancy Justice also involved defendants who are low-income.
Twenty-two of the cases involved fetal or infant demise. For Bach, this is evidence that, in a post-Roe country, “pregnancy loss is suspect”.
“The idea that the fetus can be a person and a victim of a crime is being wielded in significant ways when there’s a pregnancy loss,” Bach said. “So rather than meeting a pregnancy loss with care, with support, with an acknowledgement for the often tragic life circumstances that that involves – we are meeting it with criminal suspicion, with criminal investigation and with prosecution.”
On Monday, KFF Health News shared the story of a 23-year-old woman who miscarried in South Carolina, and was arrested in June 2023 and charged with “murder/homicide by child abuse”. The woman, Amari Marsh, was held in jail for 22 days, then was placed under house arrest, and had her case cleared by a grand jury in August – 13 months after leaving jail. Marsh was facing the possibility of 20 years to life in prison.
South Carolina’s abortion ban was not in effect at the time of Marsh’s arrest; today, abortion in the state is banned after six weeks of pregnancy.
In another high-profile case, a grand jury declined to pursue the case of Brittany Watts, an Ohio woman who reportedly miscarried into a toilet last year. A nurse reportedly told the police about Watts, who was charged under an “abuse of a corpse” statute. Her case falls out of the range of the Pregnancy Justice report.
Pregnancy Justice found that more than half of the cases involved information obtained in a medical setting. In a separate 2023 study of the criminalization of self-managed abortion between 2000 and 2020, the reproductive justice group If/When/How found that in 45% of cases, it was healthcare providers or social workers who had tipped off police to a suspected self-managed abortion.
“This is a significant phenomenon, and now we have people all over the country hiding real healthcare needs and not reaching out for help. That’s the effect of this,” Bach said. “I would like a society in which people who need care, seek care. But if this is what’s going to happen, then it is totally rational to not seek care.”
For Pregnancy Justice, the link between prosecutions and the medical establishment raises questions about the post-Roe surveillance of pregnancy – in particular, how the CDC, which already tracks nationwide information about abortion, could expand its reach.
Project 2025, a playbook of policies for a future conservative administration drafted by the influential thinktank the Heritage Foundation, suggests that the CDC force every state to report the number of abortions it performs, as well as abortion complications, miscarriages, stillbirths and “treatments that incidentally result in the death of a child (such as chemotherapy)”. Bach and Earle declined to discuss the Project 2025 proposal, citing Pregnancy Justice’s nonprofit status.
The findings released on Tuesday are preliminary; Pregnancy Justice researchers intend to conclude the study in two years.
“Every day, as the research continues,” Bach said, “we discover more evidence of this and the harder we look, the more we find.”
