With the U.S. Supreme Court likely to overturn Roe v. Wade in the coming months, reproductive rights will be determined by individual states, and the scope goes beyond abortion. For more than a decade, some states have sharply increased criminal investigations of pregnancy loss, including miscarriages, stillbirths and self-induced abortions.
Prosecutions have overwhelmingly targeted pregnant people who are poor, young, have substance abuse issues or live in areas with limited health services. Advocates fear the reversal of Roe will fuel more such cases and particularly harm women of color, already disproportionately overpoliced and prosecuted on pregnancy-related issues.
“It’s this vicious cycle where lack of access, … increased scrutiny and stigma around abortion, as it becomes further restricted or criminalized, leads to more criminalization,” said attorney Farah Diaz-Tello, a senior counsel and legal director of If/When/How, a national legal, advocacy and policy organization focused on reproductive health rights and improving abortion access. “So you’ve got this perfect storm that sets up people who are already experiencing marginalization to be punished for the various situations that the states place them in.”
For example, some state laws prohibit self-induced abortions or limit the window for self-managed abortions via medication — prescription pills to end a pregnancy. In other cases, women have been prosecuted under fetal harm laws, which treat the fetus as a distinct crime victim. Thirty-eight states have such feticide laws, most of which were originally intended to prevent violence against pregnant people from third parties. But research shows that prosecutors have used these laws to criminalize the conduct of pregnant women and in some cases prosecute stillbirths as homicides, as happened in California in two recent cases.
Precedent was set nearly two decades ago in South Carolina, when the state Supreme Court upheld the murder conviction of Regina McKnight, a 22-year-old Black woman convicted of committing “homicide by child abuse,” becoming the first woman in the country to be arrested, prosecuted and convicted for experiencing a stillbirth.
“These are laws that have been used by prosecutors in ways that were never intended and will continue to be used by prosecutors in ways that were never intended,” said Dana Sussman, acting executive director of the National Advocates for Pregnant Women, a legal-defense nonprofit that works to protect the rights of pregnant and parenting women, including those who have abortions. “And we anticipate even more of it in a post-Roe America.”
Her group and Fordham University studied more than 400 cases from when Roe v. Wade was decided in 1973 to 2005. They found that low-income women and women of color, particularly Black women, were disproportionately criminalized while pregnant.
The National Advocates for Pregnant Women is now analyzing data from 2006 to 2020. In this shorter time frame, the number of cases has more than tripled. Thus far, the analysis shows that there are about 1,300 pregnancy related criminal cases or forced medical interventions. Those cases include healthy births, pregnancy losses and abortions.
While the analysis for race and ethnicity is still underway, Sussman said that the cases, like the group’s prior research has shown, are overwhelmingly poor, young, using drugs or living in Republican-controlled states such as Alabama, Oklahoma, South Carolina and Tennessee. Nearly 600 of the 1,300 cases are from Alabama alone.
Advocates say that those targeted are disproportionately surveilled by medical and legal officials and more likely to experience adverse pregnancy outcomes due to systemic inequities. They tend to be viewed with suspicion and hostility by healthcare systems and thus are less likely to seek health care. This can lead to a higher rate of self-managed abortions. “It really is a problem of marginalization and who is criminalized in our society,” said Diaz-Tello.
In many states, pre-Roe v. Wade laws are still on the books and will be in effect once again if it’s overturned. That’s the case even in progressive states with overwhelming support for abortion rights. In California, statutes that criminalize self-induced abortion and require these abortions to be reported to coroners have not been repealed, even though California law does not criminalize pregnancy outcomes, said Jennifer Chou, a staff attorney with the ACLU of Northern California.
A coalition of regional American Civil Liberties Union affiliates in California is supporting state Assembly Bill 2223, which aims to update the law to ensure that pregnant people aren’t investigated, prosecuted or incarcerated for having an abortion or experiencing a miscarriage or other pregnancy loss.
The recent prosecutions of two women from Kings County in California’s Central Valley highlight what’s at stake in such cases. Keith Fagundes, Kings County district attorney, charged Adora Perez and Chelsea Becker with murder after both women delivered stillborn babies at the same hospital.
The prosecutor alleged the women had killed their unborn fetuses by using methamphetamine.
The Perez and Becker cases prompted state Attorney General Rob Bonta to issue a legal alert to prosecutors and police. Bonta clarified that section 187 of the state’s penal code is intended to prosecute people who harm pregnant individuals, not to punish people who suffer the loss of their pregnancy.
“The charges against Ms. Becker and Ms. Perez were not consistent with the law, and this misuse of section 187 should not be repeated. With reproductive rights under attack in this country, it is important that we make it clear: Here in California, we do not criminalize the loss of a pregnancy,” Bonta noted in a press release.
In Becker’s case, her attorneys filed a motion to set aside the murder charge, and a Kings County Superior Court judge dismissed the charge last year. The Kings County district attorney moved to dismiss the charges against Perez last month. This was only after National Advocates for Pregnant Women attorneys and other private attorneys stepped in to represent the women, who were both incarcerated, and their cases got attention by the media.
In addition to advocating for clarification of the law, If/When/Now has created guides for healthcare providers outlining their obligations to protect patient confidentiality and urging them to only report information to law enforcement that is required under current law.
These cases, especially in the context of a post-Roe world, illustrate how the law alone is not enough to ensure justice and access to reproductive health care, said Chou.
Chou notes that while Kings County has high rates of incarceration and drug use, it has few providers who offer comprehensive sexual and reproductive health care, resulting in fewer people accessing prenatal care during their pregnancies. And 40% of the state’s counties lack clinics that offer abortion services, according to the Guttmacher Institute.
Chou believes it’s crucial to go beyond simply strengthening laws by examining how systemic issues, such as reproductive and economic health, are impacting the most vulnerable.
“True reproductive justice for Californians — meaning a California that ensures that people have all the resources and the support they need to actually make decisions about whether they want to have a family, when they have a family, and how to support the family that they have with dignity and justice — that is a bigger question than simply what the law says,” said Chou.
Clarification: June 6, 5 p.m.: This story has been updated to clarify that the National Advocates for Pregnant Women data on 1,300 pregnancy-related criminal cases or forced medical interventions include healthy births, pregnancy losses and abortions.
Correction: June 6, 5 p.m.: An earlier version of this story stated incorrectly that Kings County District Attorney Keith Fagundes moved to dismiss the charges against Chelsea Becker last year. Her attorneys filed a motion to set aside the murder charge, and a Kings County Superior Court judge dismissed the charge.