Activist Supreme Court Has Unleashed the Criminalization of Pregnancy

The reversal of Roe v. Wade by the activist Supreme Court allows states to ban or dramatically restrict abortion access for millions of Americans. Already, lawmakers have proposed bills that would not only make abortion illegal, but also subject those who have abortions to criminal prosecution and even the death penalty. But the scope of the Supreme Court’s decision has implications well beyond abortion. Many advocates have expressed concerns that the ruling will pave the way for more women to be prosecuted based on actions during their pregnancy, especially if they miscarry. 

The American College of Obstet­ri­cians and Gyneco­lo­gists defines the criminalization of pregnancy as “the punishing or penalizing of individuals for actions that are interpreted as harmful to their own pregnancies, including enforcement of laws that punish actions during pregnancy that would not otherwise be criminal or punishable.”

In January 2020, 19-year-old Brittney Poolaw suffered a miscarriage and went to Comanche County Memorial Hospital in Oklahoma for medical assistance. The teen was later arrested and charged with first-degree manslaughter because she disclosed to hospital staff that she had used marijuana and methamphetamine while pregnant. Unable to afford her $20,000 bail, Poolaw remained in jail for a year and a half and, after a one-day trial, was convicted and sentenced to four years in prison.

“An overzealous prosecutor blamed Brittney for the demise of her fetus without scientific backing,” Malik said, noting that the medical examiner’s report cited multiple factors contributed to the miscarriage ― including a congenital abnormality, placental abruption and chorioamnionitis. “What the state is doing in Oklahoma and elsewhere is they’re blaming, charging and jailing these women for their miscarriages and stillbirths,” Malik said. “We know of nine other open cases in Oklahoma where women are being criminalized in relation to their pregnancies or pregnancy outcomes. Instead of empathy or medical care, the state employs this punitive, harsh and honestly inhumane response to pregnancy loss.”

And it’s not just happening in red states. In 2018, Adora Perez of Hanford, California was charged with murder after delivering a stillborn baby. The prosecutor argued that her meth use caused the stillbirth, and she spent more than four years in prison before the charge was eventually dropped. Hanford resident Chelsea Becker similarly spent 16 months in prison after her 2019 stillbirth until a judge dismissed the case.

In 2019, Alabama resident Marshae Jones was charged with manslaughter because she suffered a pregnancy loss after being shot in the abdomen five times. A grand jury declined to indict her shooter based on the state’s “stand your ground” law ― but the same panel concluded that the expectant mother had “intentionally caused the death” of her unborn child by “initiating a fight knowing she was five months pregnant.”

At nine months pregnant, a Tennessee woman was reportedly arrested in 2014 after driving without a seatbelt. The warrant for her arrest stated that she had engaged “in conduct which placed her baby in eminent danger or death or serious bodily injury.”

Data from the National Advocates for Pregnant Women also includes instances of pregnant people being arrested or charged for things like falling down, being diagnosed with HIV or giving birth at home. Even in cases of healthy births, mothers have been prosecuted.

“People often end up in prisons for behaviors that would not lead to that if they weren’t pregnant, so when you’re pregnant, you’re held to a separate legal standard,” said Grace Howard, an assistant professor of justice studies at San Jose State University who is writing a book titled “The Pregnancy Police: Conceiving Crime, Arresting Personhood.” 

“In my research, I’ve found someone who had a reckless endangerment of a minor charge tacked onto a set of charges because in their attempt to evade police, they were running while they were pregnant,” she added. “Another person was reported to the department of family services after eating poppyseed cake while they were pregnant.”   Howard noted that people have been threatened with removal of their children for refusing to comply with “arguably unnecessary medical interventions” during their pregnancies as well.  “Adults with a sound mind are allowed to reject medical treatment ― I guess unless you’re pregnant,” she said. “And if you’re not pregnant and test positive for illegal drugs at the hospital, we don’t incarcerate you for that. But if you’re pregnant, we do.”