What is pregnancy criminalization?
Pregnancy criminalization occurs when a pregnant person is arrested for reasons related to their pregnancy or when terms of bail, sentencing, or probation are tightened because they become pregnant after they are charged with an unrelated crime.
In most cases, pregnancy provides a “but for” factor, meaning that but for the pregnancy, the criminal penalty taken against the pregnant person would not have occurred.
Where are these cases from?
This report looks at cases of criminalized pregnancy from January 1, 2006 through June 23, 2022, the day before the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. Pregnancy Justice identified cases of criminalized pregnancy via legal databases, referrals from experts, the organization’s own involvement in cases, and media coverage. Case documentation was gathered from public records requests, court dockets, internet searches, and direct contact with the attorneys or parties involved in the cases. The case materials were reviewed and data about the cases were collected systematically. Only categories that contain five or more cases are displayed in the graphs on this page.
Explore the data below by using the arrows to click through each section. For more information and a glossary of terms, read the full report, The Rise of Pregnancy Criminalization: A Pregnancy Justice Report.
What role does fetal personhood play in these cases?
Fetal personhood is a legal concept that either extends the protections of all state laws to fetuses and acknowledges all rights, privileges, and immunities on their behalf; or defines fertilized eggs, embryos and/or fetuses as “legal persons” and as separate from pregnant people.
Two-thirds (67.5%) of the pregnancy criminalization arrests come from Alabama, Oklahoma, or South Carolina — states that have high court decisions that expanded definitions of “child” to include fetuses, fertilized eggs, and embryos, in effect applied to penalize and regulate pregnant people.
Pregnancy criminalization is typically carried out under the guise of addressing the issue of pregnancy and substance use. The arrests represent the morphing of the fetal personhood movement and the war on drugs to criminalize pregnant people for acts and omissions that would not otherwise have been treated as criminal but for their pregnancy.
The noticeable rise in arrests from 2010 to 2016 is likely because Tennessee’s Fetal Assault Law was in effect between 2014 to 2016, and the expansion of Alabama’s chemical endangerment law. The drop in arrests in 2016 can be explained by legislative amendments to Alabama’s chemical endangerment law following substantial investigative journalism exposing its reach, and the sunsetting of Tennessee’s fetal assault law.
What were the grounds for arrest and charges in these cases?
What role did hospital and family regulation workers play in these arrests?
State laws generally make it a crime for members of certain professions — such as social workers, teachers, and healthcare providers — to withhold information about suspected or known instances of child abuse or neglect from state family regulation agencies. These people are referred to as mandated or mandatory reporters. More than half of states have laws that require reporting related to people’s use of alcohol or drugs during pregnancy and/or define alcohol or drug use during pregnancy as child abuse or neglect. Because of this legal apparatus, the healthcare and family regulation systems have come to play a significant role in sustaining efforts to criminalize pregnancy.
One in three arrests documented in this report (33.8%) were first instigated by a medical professional and two in five arrests (42.6%) involved family regulation workers. Many of these reports were initially made in relation to civil child abuse mandatory reporting laws, hospital policies, or the misperception that such reporting was required under the laws and policies. Often these arrests occurred after routine drug testing such as during prenatal care appointments.
What substances were most commonly involved?
The three most common substances that were identified to justify the criminalization of pregnant people were methamphetamine, cannabis, and cocaine. The particular substances varied substantially among racial groups. Nearly two-thirds (65.0%) of arrests of Native American pregnant people involved allegations of methamphetamine use. Over half (51.5%) of arrests of Black pregnant people involved allegations of cocaine use, and nearly one-third (32.5%) of arrests of white pregnant people involved allegations of opiate use.
What happened after an arrest?
Whose pregnancies were criminalized?
What were the outcomes of these pregnancies?
In the majority of cases, there was a live birth with no mentions of health problems in the data. Aligned with the robust scientific literature, this report does not consider a positive toxicology alone as an indication for adverse health.
Explore the data yourself!
Recommendations
Pregnancy Justice makes the following recommendations to address pregnancy criminalization:
- Repeal fetal personhood legislation
- Promote pregnant people’s personhood
- Follow scientific evidence: treatment options not criminalization of pregnancy and substance use
- Ensure pregnant people are not left behind in decriminalization efforts for drug use
- Support proactive approaches to decouple healthcare and policing
- End mandated reporting of the co-occurence of substance use and pregnancy alone
- Improve, promote and expand informed consent laws
- Pass affirmative protections
- Restore and protect abortion rights
- Ensure criminalized pregnant people have a robust defense
Read The Rise of Pregnancy Criminalization: A Pregnancy Justice Report to learn more!