Substance use during pregnancy was the main charge in most cases, with two-thirds of defendants facing this accusation alone. Notably, researchers found that six states, namely Alabama, Mississippi, Ohio, Oklahoma, South Carolina, and Texas, had the highest number of documented cases.
According to Lourdes Rivera, president of Pregnancy Justice, the new report presents challenges in comparing data with previous versions due to improved data collection. However, the findings indicate a further increase in the criminalization of pregnancy compared to before the Supreme Court’s ruling. Rivera suggests that in states with abortion bans or new restrictions, there is heightened scrutiny of pregnancy loss.
“Lourdes Rivera, the president of Pregnancy Justice, highlighted the importance of reproductive rights and access to healthcare. She emphasized that every person should have the right to make their own decisions about their bodies and reproductive health. Rivera stated, ‘It is crucial that we prioritize the well-being and autonomy of individuals, ensuring that they have access to the necessary resources and support to make informed choices.’ Her words shed light on the significance of protecting reproductive rights and ensuring equitable access to healthcare for all.”
Researchers have found that the majority of prosecutions concerning pregnant women are not based on state abortion laws. Instead, law enforcement tends to charge these women with offenses like child neglect or endangerment, considering a fetus as a “child” under the law. This approach relies on the concept of fetal personhood, which asserts that a fetus, embryo, or fertilized egg possesses the same legal rights as a born person.
According to Rivera, it is important to recognize that the issue of criminalizing pregnant individuals goes beyond just abortion laws. Pregnant individuals are being targeted and charged for endangering their own pregnancies, experiencing pregnancy loss, and engaging in conduct related to abortion. Rivera believes that this trend of pregnancy criminalization is driven by the increasing recognition of fetal personhood.
Child abuse or endangerment charges come with harsher consequences, including higher fines and longer prison sentences, compared to the less severe drug charges that these women would have faced if they were not pregnant.
The push for charges
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Conservative lawmakers in Alaska, Illinois, Missouri, South Carolina, and West Virginia have introduced fetal personhood bills in the most recent legislative session, but unfortunately, none of them were able to make it out of committee. However, in Nebraska, there are dueling amendments set to appear on the ballot. One of these amendments aims to codify the right to abortion until “fetal viability,” which is typically around 24 weeks. On the other hand, the second amendment seeks to amend the state constitution in order to restrict abortion to 12 weeks and provide protection for “unborn children” during the second and third trimesters of pregnancy.
Advocates for holding pregnant women accountable for behaviors that may harm their unborn babies argue that the potential for legal consequences encourages women to seek care or treatment for substance abuse disorders.
Jody Willoughby, the Republican district attorney in Etowah County, Alabama, has publicly stated that his office takes action on pregnancy-related cases to prevent becoming complicit in child abuse and the potential death of a mother. He believes that doing nothing would enable a deadly addiction, as reported by local news outlet AL.com in 2022. Despite Stateline’s attempts to reach out, Willoughby did not provide any comments.
Alabama takes the lead in prosecuting pregnant women, with nearly half of the documented prosecutions in the nation occurring in this state. In 2018, Alabama passed a constitutional amendment that recognizes fetuses as persons and emphasizes the state’s duty to safeguard the rights of unborn children. The cases in Alabama are prosecuted under the chemical endangerment law, which was ruled by the Alabama Supreme Court in 2013 to encompass fetuses as well.
According to Brittany VandeBerg, who spearheaded the research in Alabama, there has been an increase in chemical endangerment charges in twelve additional counties since the Dobbs ruling.
According to VandeBerg, associate chair of the department of criminology and criminal justice at the University of Alabama, the district attorney plays a crucial role in determining the priorities for prosecutions in each county. They have the power to shape the direction of their office based on their own personal beliefs or what they perceive as the community’s wishes. Regardless of the motivation, the system is designed to ensure that cases are moved forward.
According to VandeBerg, Alabama’s support for individuals battling addiction is limited, leading law enforcement to believe that their only recourse is to apprehend and incarcerate women dealing with substance use disorders.
VandeBerg noticed a recurring pattern while reviewing cases: a significant number of incidents involved charging pregnant women with chemical endangerment, even though their babies showed no signs of harm after birth.
VandeBerg expressed her shock at the situation, emphasizing that Alabama’s chemical endangerment law could lead to a decade-long prison sentence, which is significantly longer than the penalties for certain domestic violence offenses. She pointed out the concern of charging the mother without evidence of any harm caused.
Defendant exonerated
In July, a woman in Oklahoma was cleared of charges of felony child neglect in 2020 after her baby tested positive for marijuana at birth. Despite her baby being born healthy and her possession of a doctor-approved state license to use medical marijuana for treating severe morning sickness during her pregnancy, prosecutors still pursued the case.
Brian Hermanson, a Republican district attorney from Oklahoma, has prosecuted numerous women in his district who have found themselves in similar circumstances. In his legal arguments, he employed the concept of fetal personhood.
According to Hermanson, under Oklahoma law, marijuana is considered an illegal drug unless the individual using it possesses a medical marijuana license. However, unborn babies are unable to hold such a license.
The defendant confessed to smoking marijuana during her pregnancy, fully aware that her unborn baby was being exposed to the potential harmful effects of the marijuana smoke.
The Pregnancy Justice report also highlighted five cases that specifically referenced abortion. One case involved a former state abortion statute that is no longer in effect. The remaining four cases were charged as homicide, child neglect, or abuse of a corpse. In two of the homicide cases, the defendants reportedly visited an abortion clinic or took abortion pills, resulting in a successful termination, according to Rivera.
Stateline is a division of States Newsroom, a nonprofit news organization that receives funding from grants and a cooperative group of donors as a 501(c)(3) public charity. Editorial independence is maintained by Stateline. For any inquiries, please reach out to Editor Scott S. Greenberger at [email protected]. Stay updated by following Stateline on Facebook and X.
