Why pregnancy-related arrests in the US surged over the last two decades in Southern states

Report identified cases of women being put behind bars while pregnant

Josh Marcus
San Francisco
Tuesday 19 September 2023 19:53 BST
Women denied abortion care sue states over abortion bans

Arrests of pregnant women are spiking in the US, and the situation only looks set to get worse after the demise of Roe v Wade, a new report has found.

Between 2006 and June 2022, nearly 1,400 people were arrested or had the conditions of their bail, sentencing, or probation heightened because of alleged offences while pregnant, Pregnancy Justice, an advocacy group, found in a report released on Tuesday.

During that period, there was a threefold increase in pregnancy-related criminal cases.

“Pregnant people are, simply by virtue of being pregnant, vulnerable to criminal charges: child abuse or endangerment if they are accused of exposing their fetus to some perceived or actual risk of harm; or murder, feticide, or manslaughter if they experience a pregnancy loss,” Lourdes Rivera, the group’s president, wrote in the report. “Now, without the protections of Roe, we can expect pregnancy criminalization to continue to increase.”

The cases were concentrated in Southern states like Alabama, South Carolina, Tennessee, Oklahoma, and Mississippi, where legislators have adopted calls from the “fetal personhood” movement to heighten penalties against pregnant people on the argument that fertilized eggs, embryos, and fetuses are entitled to the same legal rights as children.

The investigation highlights how some women are sent to prison even in cases where it’s unclear they harmed their unborn child, and others were incarcerated while pregnant, ostensibly on behalf of their future children.

In 2020, for example, an Oklahoma woman was arrested at age 19 after a pre-viability miscarriage after allegedly using meth and charged with manslaughter, even though a medical examiner identified other possible risk factors in the pregnancy.

Protesters at the Arizona Capitol in Phoenix after the Supreme Court decision to overturn the landmark Roe v Wade abortion decision in June 2022

In 2018, meanwhile, a pregnant Michigan woman was incarcerated during her pregnancy after relapsing on cocaine and meth during a drug court programme.

Highlighting the gap between the criminal penalties and the outcomes on the ground, even though nine-in-10 cases analysed by Pregnancy Justice involved substance use, the report found that in two-thirds of the live-births studied, there was no mention of negative health outcomes for the children themselves.

Another major trend identified in the data was poverty. In nearly 85 per cent of the cases studied, courts declared the person at the centre legally indigent, meaning they couldn’t afford an attorney.

Advocates argue the findings underscore a need to shift away from carcercal strategies to comprehensive health treatment and other methods to protect pregnant people and their unborn children.

“The findings in this report are a call to action, and anyone working to achieve greater bodily autonomy ought to heed that call,” Raye Simpson of the SisterSong Women of Color Reproductive Justice Collective said in a press release after the publication of the report. “We must challenge the systems that collude to criminalize pregnant people, ensure that neither poverty, gender, nor race is criminalized, and ensure everyone can get the care they need and live full, thriving lives without fear, stigma, or punishment.”

As The Independent has reported, pregnant people and mothers face particular kinds of stigmas and harsh punishments in the criminal justice system, particularly in death penalty cases.

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