Since Roe v. Wade in 2022, it has become more common for authorities to charge women with crimes related to their pregnancy, a recent study shows – even though they are almost never accused of violating abortion bans.
In the year after the U.S. Supreme Court struck down federal abortion rights in Dobbs v. Jackson Women’s Health Organization, at least 210 women nationwide were charged with crimes related to their pregnancy, according to a report by the advocacy group Pregnancy Justice. That’s the highest number the organization has found in a 12-month period in research dating back to 1973.
Wendy Bach, a professor at the University of Tennessee School of Law and one of the project’s lead researchers, said one of the cases involved a woman who gave birth to a stillborn baby at home while she was six or seven months pregnant. When the woman went to arrange the funeral, the funeral home alerted authorities, and the woman was charged with murder, Bach said.
Due to the study’s confidentiality requirements, Bach declined to provide further details about the case. However, it was one of 22 cases in the study in which a fetus or infant had died.
“It’s an environment where pregnancy loss is potentially a criminal justice issue,” Lourdes Rivera, president of Pregnancy Justice, said in an interview.
The researchers point out that the case count from June 24, 2022, to June 23, 2023, is an undercount, as was the case with previous versions. Therefore, they cannot be sure that there was not a period between 1973 and 2022 with as many cases as there were after the Dobbs ruling. During the earlier period, they found more than 1,800 cases – with a peak of about 160 in 2015 and 2017.
Most cases since Roe ended involve charges of child abuse, neglect or endangerment in which the fetus was listed as a victim. Most cases involved allegations of drug operate during pregnancy, including 133 in which that was the only allegation. The group said most charges did not require proof that the baby or fetus was actually harmed.
Only one charge in the report related to violations of an abortion ban – a law that was later repealed. For privacy reasons, the researchers did not identify the state from which that charge originated. Four other charges involved abortion-related allegations, including evidence that an accused woman possessed abortion pills.
Bach pointed to news organization ProPublica’s reporting last week on two Georgia women whose deaths a state commission linked to the state law that bans abortions in most cases after the first six weeks of pregnancy. The family of one of the two, Candi Miller, said she avoided seeking medical treatment after taking abortion pills for fear of being charged with a crime.
In states with abortion bans — including 14 that prohibit it at all stages of pregnancy and four, such as Georgia, where it is illegal after about the first six weeks — there are exceptions for women who choose to obtain abortions themselves. But Bach said people seeking abortions have also been charged with other crimes.
“She didn’t want to seek help because she was afraid of being prosecuted,” Bach said. “That’s a really realistic fear.”
The majority of cases in the study came from just two states: Alabama with 104 and Oklahoma with 68. The next state was South Carolina with 10.
Rivera said what these three states – which were also among the states with the most pregnancy-related lawsuits before the Dobbs ruling – have in common is that their supreme courts have issued opinions granting human rights to fetuses, embryos and fertilized eggs.
Several states have laws that grant fetuses at least some rights. The concept gained widespread attention earlier this year when clinics in Alabama stopped offering artificial insemination after the state Supreme Court recognized embryos as “extrauterine children.” In one wrongful death case, couples sued after their frozen embryos were destroyed in an accident. Within weeks, Republicans who control the state government passed a law that shields artificial insemination providers from legal liability.
“We really need to separate health care from punishment,” Rivera said. “It only has tragic ends and doesn’t address the problem properly. It creates more problems.”
