How the Criminal-Justice System Is Targeting Pregnant People

Photo: Bill Oxford/Getty Images

Three years ago, 19-year-old M.R. was arrested after suffering a miscarriage between 15 and 17 weeks of pregnancy. While seeking medical help, the Oklahoma resident told hospital staff that she had recently used methamphetamine and marijuana. The medical examiner in the case did not identify the use of these substances as the cause of the miscarriage; instead, the examiner cited M.R.’s drug use as one factor in addition to several other conditions — including a congenital abnormality, placental abruption, and bacterial infection — that could have led to the pregnancy loss. Still, M.R. was charged with first-degree manslaughter, convicted in October 2021, and sentenced to four years in state prison. She chose not to appeal her case out of concern it could lead to a life sentence.

M.R.’s case is one of nearly 1,400 cases involving pregnant people who were investigated, arrested, or prosecuted between January 2006 and June 23, 2022, the day before Roe v. Wade was overturned, according to a new report by the legal advocacy group Pregnancy Justice. The timeline, charges, and sentencing of M.R. as described in the report match the case of Brittney Poolaw, a member of the Comanche Nation who was convicted of manslaughter after a miscarriage. The number of cases represents an alarming increase compared to the group’s previous 2013 study, which found 413 similar cases between 1973 and 2005. Very few cases outlined in the report were connected to abortion; many, like Poolaw’s, instead focused on allegations of substance use during pregnancy, even when two out of three cases involved a live birth with no mention of negative health outcomes for the infant.

“What’s being created is a situation where any adverse pregnancy outcome is a potential criminal scene to be investigated,” Lourdes Rivera, Pregnancy Justice’s president, tells me. “And the people who are going to be the targets of this are people who have the least resources, who can’t afford a lawyer.”

The report found that nearly 85 percent of the pregnant people who faced criminal charges were deemed indigent by the courts with poor white and Black women representing a majority of the cases. In four out of five cases that included information about the criminal charges, pregnant people faced counts of criminal child neglect, abuse, or endangerment — a majority of which were felonies.

Rivera spoke with the Cut about why prosecutors punish pregnant people for conduct that often wouldn’t be criminalized otherwise, who reports these cases to law enforcement, and how fetal-personhood laws can be weaponized against pregnant people post-Dobbs, whether they are seeking an abortion or not.

This study found there were 1,396 criminal arrests of pregnant people between January 2006 and June 2022 compared to 413 cases in the 33-year period between 1973 and 2005 that your organization previously evaluated. Why are pregnant people being charged, arrested, and incarcerated at this accelerating rate?
The overwhelming number of cases have been criminalizing pregnant people for substance use. There are two colliding factors that are really driving this. The first is the expansion of the extreme ideology of fetal personhood, this idea that fetuses have the same — if not more — rights as the actual person carrying the pregnancy. Fetal personhood has been used to gut abortion rights, and it’s increasingly being vetted in laws and judicial decisions in states. The second factor is the opioid crisis. Even as we’ve been having more of a national conversation of substance use being a public-health issue for people who are pregnant, the punitive approaches that targeted Black and brown people during the War on Drugs are still being wielded against people who are pregnant. This is really based on gender stereotypes and stigma of substance use. It’s opened the door to criminalizing any actions that are deemed to harm the fetus. Among the states with the most criminal cases, three of them have judicial decisions that have basically changed the definition of children to include fetuses: Alabama, Oklahoma, and South Carolina. Mississippi and Tennessee also have many of these cases.

The study found that almost 80 percent of arrests took place in those five southern states. Why are these specific states punishing pregnant people so much more than others?
This is not happening statewide; there are prosecutors who are deciding that this is how they’re going to spend their time and resources. If the law defines a fetus as a child, then that really opens the door for prosecutors to use their discretion to, for example, use child-endangerment laws, which are meant to protect living children from child abuse. They’re applying these laws in ways they were never meant to be applied. Laws that were meant to protect children from being in meth labs, for example — these prosecutors are basically equating a pregnant person’s body to a meth lab so that it’s no longer a health issue, but the body is a scene of a crime.

Right. Most of the laws used to charge pregnant people were never intended to apply to pregnancy. Can you talk about this a bit more? What are some of the most common criminal charges pregnant people face? 
Things like child endangerment, abuse, neglect, substance possession, and drug use. There are things like fetal assault and drug delivery. If there’s a pregnancy loss, it’s feticide, murder, or manslaughter. Pregnancy loss in particular is really dangerous because any stillbirth or miscarriage becomes a potential crime. As we know, people have miscarriages and stillbirths even under the best of circumstances.

The report says nearly 85 percent of cases involved criminal charges against a pregnant person who was deemed legally indigent by the courts. Why are the vast majority of these cases brought against poor people?
People who are poor have more contacts with public hospitals and state agencies that are going to be policing them. People have to jump through these hoops to get services, and there are more eyes on them and potentially people who are going to report them either to family-policing systems or criminal-justice systems. People with means are going to go to private doctors who are not going to be thinking of their patients in the same way.

The study notes that medical professionals and family-regulation workers, such as social workers, play a significant role in the criminalization of pregnant folks. Why is that?
There’s evidence and a consensus among the leading medical-professional associations that criminalization is actually unethical and undermines maternal, fetal, and infant health outcomes because it deters people from accessing health care. If you sense that if you go to the doctor, the consequence is that you’re going to end up locked up, you’re not going to go. It undermines access to prenatal care; it undermines access to substance-use treatment. It’s really ironic that over a third of pregnancy-criminalization arrests are instigated by medical professionals. It often is because of the overly inclusive way that they’re interpreting obligations to report child abuse. A positive toxicology by itself does not indicate that the person is a bad parent or is abusing a child.

Two in five cases involve family-regulation workers that get pulled into these situations, investigate families, and then call law enforcement. You don’t see well-to-do families in these situations as much. It’s really focused on people who are poor. It’s not just who has historically been entangled — which has been Black pregnant people, who continue to be overly represented in these cases — but now it’s really entangling also white poor pregnant people. The War on Drugs is coming home to roost on white communities as well.

Abortions made up less than one percent of cases during the period the study covers. But researchers caution that the overturn of Roe v. Wade will further encourage prosecutors to go after people who seek abortions or are suspected of doing so. How have you seen prosecutors punish people for abortions in the past, and how are they pursuing abortion seekers now, post-Dobbs?
While Roe was in place — as imperfect as it was — it did serve as a backstop to fetal personhood in the abortion context across the board, even though there were still some levels of criminalization outside of this context. The Dobbs decision has opened the door much more widely to this concept of fetal personhood. There are 15 states that have pretty broad fetal-personhood laws that have yet to be realized, and we don’t have roads to stop them anymore. We anticipate that there will be more criminalization outside of and in the context of abortion. Politically, the anti-abortion movement was trying not to go there in terms of criminalizing the individual person. But now we’re seeing them be more comfortable talking publicly about criminalizing women and criminalizing people needing abortion care.

What are some of the biggest misconceptions about the criminalization of pregnant people in the U.S.?
Generally, people are coming to a greater understanding of how substance use is a public-health issue and a mental-health issue, not an issue of individual moral failing. But there’s the overlay of the gender stereotype, this idea that a person who’s pregnant — predominantly women — that their role in society, primary over everything else, is to be a mother. If you’re taking an action that is perceived to be harmful to the fetus, it’s like, How dare you! Both of these things come together, the stigma of substance use and also the stereotype of the gender roles that women are supposed to be fulfilling, and open the door to criminalizing any other action that could be deemed to be harming a fetus — from not being on bed rest when your doctor tells you to because you actually have to go to work and support your family to riding in a car without a seat belt, which merits a traffic ticket but not to be criminalized. What this is really about is power and control, to impose these traditional gender roles and use the criminal-justice system to do it.

As your predecessor — Pregnancy Justice’s founder, Lynn Paltrow — has explained, it’s not the conduct that’s being criminalized but the pregnancy itself, because anything a person does when they are pregnant carries risk for the fetus.
Absolutely. Most of us don’t have the luxury to just wrap ourselves in Bubble Wrap for nine months. We actually have things to do. What’s being created is a situation where any adverse pregnancy outcome is a potential criminal scene to be investigated. And the people who are going to be the targets of this are people who have the least resources, who can’t afford a lawyer.

So which policies can help curb the criminalization of pregnant people in the U.S.? And where are those interventions most effective — at a local, state, or national level?
It’s all of the above. We have to turn around this trend on fetal personhood and really protect the pregnant person’s personhood. There’s an actual, sentient being that disappears when the rights of fetuses are elevated in this equation. We also need to make sure that the medical community is following the evidence and the recommendations of their professional associations. There are movements for decriminalizing drug use — people forget that pregnant people should be part of those efforts, whether it’s state by state or at the national level. And we really have to decouple access to health care from criminalization. One specific thing that we can do is to make sure that HIPAA regulations are protecting the medical records and health information of people who are pregnant and who share medical history with their providers. That way, they can actually get the treatment they need rather than their information just being turned over to law enforcement. There aren’t enough resources allocated for substance-use treatment for people who are pregnant, so they’re caught in the Catch-22.

What is the main takeaway you hope people will have after reading the report?
This research is a first step in understanding the scope and impact of criminalizing pregnant people. It’s really a fight for bodily autonomy. Criminalizing pregnant people worsens maternal, fetal, and child health; it also deprives people carrying the pregnancy of their own personhood. The harm falls hardest on those who are already marginalized across race and class lines.