The Alarming Rise of Pregnancy Criminalization in Post-Roe America

The overturning of Roe v. Wade in 2022 sparked immediate debate about abortion access. Yet, the story unfolding now extends far beyond that single issue. We’re witnessing a disturbing trend: the criminalization of pregnancy itself. Prosecutors are increasingly pursuing cases against individuals for actions related to their pregnancies, losses, or even childbirth. Over 400 such cases have surfaced, exposing a chilling reality for pregnant people in the US.

Take Lauren Miller, a Texas mother whose wanted twin pregnancy took a devastating turn. When one twin was diagnosed with a fatal condition, doctors advised a fetal reduction to protect Lauren and the surviving twin. Texas’s stringent abortion laws, however, cast a long shadow. Miller, like so many others, felt the heavy hand of the state intruding on her personal medical decisions. She was forced to leave Texas to receive the necessary medical care.
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This isn’t just about abortion; it’s about the fundamental right to make informed healthcare choices during pregnancy.

The consequences of the Dobbs decision are far-reaching. Preventable deaths, risky interstate travel for care, and the agonizing experience of carrying non-viable pregnancies to term are now commonplace. Adding insult to injury, infant and neonatal mortality rates are climbing in some regions. Medical professionals face prosecution for providing essential care. This chilling effect extends to all pregnant individuals, not just those seeking abortions.

Consider the push for “fetal personhood.” This legal concept grants fetuses the same rights as living people, potentially opening the door to criminal charges for pregnancy complications. Some women now fear getting pregnant, a stark indication of the environment of apprehension that’s growing in the nation.
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One particularly egregious instance involves Selena Maria Chandler-Scott in Georgia. After experiencing a miscarriage, she was arrested for concealing a death and abandoning a body, facing a possible 13-year prison sentence. While the charges were eventually dropped, her ordeal highlights the growing tendency to treat pregnancy loss as a crime.

These are not isolated incidents. A report by Pregnancy Justice documents hundreds of cases where individuals faced criminal charges related to pregnancy, loss, or birth. Disturbingly, a significant number of these cases involve accusations of substance abuse during pregnancy.

However, the link between substance use and pregnancy loss isn’t always clear-cut. Many miscarriages occur without any known cause. Tony Scialli, an OB-GYN specializing in reproductive toxicology, rightly pointed this out. This underscores the danger of rushing to judgment and criminalizing individuals based on flimsy evidence. The fact that prosecutors frequently don’t even need to prove harm to obtain convictions is deeply concerning. These laws, originally designed to protect children from toxic chemicals in meth labs, are now twisted and turned against pregnant women.

Some women are even being held responsible for substance use before they knew they were pregnant. The overreach is staggering. Also questionable is the use of meconium testing on newborns without the mother’s consent. All this to find traces of drugs. It’s an invasion of privacy with potentially devastating consequences.

Adding another layer of concern, remember President Trump’s discouragement of paracetamol use during pregnancy? That was a perfect example of the myth of the “perfect pregnancy.” There is an underlying assumption that any complication must stem from the pregnant person’s actions. This flawed mindset fuels the criminalization trend. Pregnancies aren’t perfect. By expecting them to be, we create an environment where state intervention and punishment become normalized. Madalyn Wasilczuk, a law professor, rightfully called it a “dangerous premise.” She correctly asks, is the only “non-suspect outcome of a pregnancy a healthy living child?”

The discredited “lung float” test exemplifies the unscientific basis of some prosecutions. This test, used to determine if a baby was born alive, lacks scientific merit and has been compared to the witch trials of the 17th century.

The current climate also encourages surveillance and reporting. Texas even allows private citizens to sue anyone involved in an abortion, creating a chilling effect and transforming strangers into potential bounty hunters.

Emily Witt of Avow Texas succinctly put it this way: the fall of Dobbs has triggered a criminalization of pregnancy, particularly impacting communities of color. It certainly feels that law enforcement is being encouraged to criminalize pregnancy outcomes.

In Georgia, Adriana Smith, declared brain-dead while pregnant, was kept on life support for 16 weeks against her family’s wishes to support the fetus. This heart-wrenching case underscores the erosion of bodily autonomy and the prioritization of fetal rights over the rights of the pregnant person.

Unsurprisingly, many women are now afraid to get pregnant. Data shows that a significant percentage of women are reconsidering pregnancy due to concerns about maternal healthcare in the post-Dobbs era. It would appear that the fears are well-founded.

Kimya Forouzan of the Guttmacher Institute correctly noted that the push for fetal personhood is undeniably linked to increased criminalization. If a fetus has the same legal rights as a person, then abortion and even IVF could become targets.

The stakes are incredibly high. The US already has a high maternal mortality rate compared to other developed nations. Pregnancy, quite simply, is riskier for women in America, especially in states with abortion bans.

Even for women with wanted pregnancies, like Lauren Miller, the legal landscape has made things harder. Her story makes one thing clear: “You can’t just legislate abortion away because it is still going to be needed. It doesn’t work in the real world.” The chilling effect of these laws reaches far beyond abortion clinics, impacting the fundamental rights of every pregnant person in America.

These cases, like Miller’s, force us to question what kind of society we’re building. Do we trust women to make informed decisions about their own bodies and pregnancies, or do we cede control to the state, turning pregnancy into a potential crime? This subjugation and dehumanization has to come to an end. The future of reproductive rights and women’s health in America hangs in the balance.

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Keywords: pregnancy criminalization, post-Roe America, fetal personhood, maternal mortality, pregnancy loss, abortion laws, reproductive rights, Dobbs decision