Pregnancy prosecutions are on the rise
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Prosecutors in states with abortion bans are increasingly charging mostly low-income women with pregnancy-related crimes, in a test of whether fetuses and embryos have the same rights as children.
Why it matters: The cases further complicate the post-Roe landscape and bring particular scrutiny to pregnant women accused of drug or other substance use.
By the numbers: At least 412 pregnant women were charged with child abuse, neglect or other crimes related to pregnancy or pregnancy loss in the two years after the Supreme Court overturned the national right to abortion, the advocacy group Pregnancy Justice found.
- That's compared with an average of about 85 cases annually in the 16 years leading up to the June 2022 decision, though cases ranged from 29 to 158 per year over that period.
- The Dobbs ruling immediately gave more weight to "personhood" laws conferring full legal rights to fetuses, said Dana Sussman, senior vice president at Pregnancy Justice.
- It also opened the door to criminal prosecutions of women who used abortion pills or had miscarriages, although only nine cases between 2022 and 2024 explicitly mentioned abortion.
Case in point: A woman in Kentucky this month was charged with fetal homicide and abuse of a corpse after she ordered abortion pills online and buried the remains in her yard.
- Prosecutors later dismissed the homicide charges, but the woman was also indicted on two felony charges related to harming the fetus that could each bring up to five years in prison.
Zoom in: The vast majority of cases in the two years following the Dobbs decision were brought in Oklahoma and Alabama.
- In about 67% of the child abuse cases brought nationwide, substance use during pregnancy was the only charge.
- Prosecutors did not have to prove the fetus was harmed by the defendant in order to secure a conviction in more than 85% of the alleged crimes.
- More than 3 in 4 defendants were low-income, as indicated based on their use of a court-appointed counsel or means-tested benefits like Medicaid.
What they're saying: As prosecutions tick up, "pregnant people will be living under heightened surveillance and scrutiny, and that may change their behavior in ways that aren't healthy for them or for the pregnancy," said Gretchen Borchelt, vice president for reproductive rights and health at the National Women's Law Center.
More state legislatures will likely debate fetal rights and try to include personhood language in laws this year, said Kimya Forouzan, principal state policy adviser at the Guttmacher Institute, a research organization that supports abortion rights.
- Legislators last year introduced at least 37 bills across 19 states including language that would confer legal rights to fetuses or embryos, but none were enacted, Forouzan said.
- South Carolina lawmakers on Wednesday revived a bill that would criminalize abortion as murder by applying homicide laws from the moment of conception, including against pregnant women.
- The bill stalled in the legislature last year, but anti-abortion activists are calling for primaries against Republican lawmakers who don't support it this time.
- "If a woman has an abortion, there could be a possible consequence that she could lose her freedom. ... That's a legitimate consequence for murder," activist Abby Johnson said during a Tuesday press conference.
Reality check: An April survey from Pregnancy Justice and the National Women's Law Center found that 52% of voters oppose giving legal rights to fetuses and embryos.
- 77% said it's important to protect the rights of pregnant women, and 87% said it's important for pregnant women to be able to get care for substance use disorder without fear of punishment.
The bottom line: Pregnancy is becoming a bigger legal risk.
