In June 2022, the U.S. Supreme Court overturned Roe v. Wade, which had established a fundamental right to abortion and rejected the argument that fetuses had rights and may be treated as separate constitutional persons. In the past, when cases criminalizing pregnancy outcomes were challenged and appealed, the majority of state appellate decisions held that the prosecutions were unlawful based on principles established in Roe, with several explicitly referencing its language.
Without Roe, we can only expect more of these prosecutions to go unchecked. And now, state laws establishing “fetal personhood” have a greater and wide-ranging impact on everything from criminalizing pregnancy to accessing IVF and other reproductive health care.
Below, you’ll find information regarding state laws establishing “fetal personhood,” criminal feticide statutes, and laws that allow for the civil commitment of pregnant people for suspected, actual, or past substance use.
At Pregnancy Justice, we strive to make information available and accessible to all those in need, but for specific legal questions, we advise you to reach out to an attorney, or to contact us for more information.
Fetal Personhood Established by Law or Judicial Decision
Last updated: 03/28/2023
Fetal personhood laws grant fetuses — and in some cases embryos, and fertilized eggs — the same legal rights and status given to born people, such as the right to life. However, fetal personhood and pregnant people’s personhood cannot coexist. When fetal personhood is fully actualized, it fundamentally changes the legal rights and status of all pregnant people, opening up the door to criminalization, surveillance, and obstetric violence.
Currently, 18 states have established fetal personhood by law or judicial decision to apply to criminal law or both criminal and civil laws.
Want to learn more? Read our report.
Criminal Feticide Established by Law
Last updated: 03/28/2023
Criminal feticide, or fetal homicide, refers to a type of law that authorizes homicide (murder) charges for “causing” a pregnancy loss such as miscarriage or stillbirth. Originally championed as a way to protect pregnant people from violence caused by another person, feticide laws have been manipulated to criminalize people for the loss of their own pregnancy and indirectly normalize the concept of fetal personhood.
Feticide laws have also encouraged the expanded application of other criminal laws to pregnancy. Currently, there are 38 states that could authorize homicide charges to be brought for causing the loss of a pregnancy, even if they have not already.
Want to learn more? Read our report.
Civil Commitment Laws: Substance Use & Pregnancy
Last updated: 03/28/2023
Court-ordered civil commitment laws authorize state courts to commit a pregnant person to substance use treatment without their consent, under the guise of fetal protection. There are two ways a person can be committed for substance use during pregnancy: by an emergency order or by court order. Emergency commitments are typically shorter and made by an administrator of a mental health facility, whereas court-ordered commitments are typically for a longer period of time.
Currently, five states authorize state courts to commit a pregnant person to substance use treatment without their consent.
Want to learn more? Read our fact sheet on Wisconsin’s Act 292 law.