Much of the media attention around the rollback of reproductive rights in the United States has centered around Roe v. Wade and abortion bans in Republican-controlled states, but there are other similarly harmful threats to bodily autonomy and agency. In recent years, the anti-choice movement has succeeded at quietly criminalizing pregnancy to levels not previously seen, making it so that to be pregnant and poor in this country is to play a game of roulette with one’s privacy and constitutional rights. These criminalization efforts make it clear that the fight doesn’t stop at abortion. In order to end the attacks on reproductive freedom, we must address the full extent of the crisis, which goes far wider and deeper than different state legislatures enacting restrictive abortion laws.
Pregnancy criminalization laws are the centerpiece of the anti-abortion movement’s largely under-addressed and overlooked fetal protection agenda. Currently, 38 states have implemented feticide statutes, which create a protected class for “fetuses killed by violent acts against pregnant women.” Reproductive rights advocates have argued against such statues as they could be used against the pregnant person, as was the case for Bei Bei Shuai in Indiana. Nearly 30 states have enacted “fetal homicide laws that apply to the earliest stages of pregnancy (‘any state of gestation/development,’ ‘conception,’ ‘fertilization,’ or ‘post-fertilization’).” Many of these laws build upon the federal “Unborn Victims of Violence Act,” which President George W. Bush signed into law in 2004, that recognizes an embryo or fetus in utero as a legal victim if killed or harmed during the commission of over 60 federal crimes.
Today, viable and nonviable fetuses have the status of minors less than 12 years of age in Arizona for purposes of determining criminal sentencing in murder and manslaughter cases. Similarly, in Alabama, legislators revised state statutes to include “an unborn child in utero at any stage of development, regardless of viability” as a “person” and “human being” for purposes of criminal laws, including manslaughter, criminally negligent homicide, murder, and assault. Elsewhere, Florida has a statute known as the “Killing of Unborn Quick Child by Injury to Mother” law, and North Dakota lawmakers passed the “Inalienable Right to Life of Every Human Being at Every Stage of Development” law, meant to bestow “inalienable rights” in embryos and fetuses.
Perhaps exposing how closely threaded the criminalization movement is to the anti-abortion movement, in a 2013 interview, then-Senator Margaret Sitte, sponsor of North Dakota’s personhood law, admitted that dismantling Roewas the purpose of her criminal legislation. She explained, “We are intending that it be a direct challenge to Roe v. Wade,” responding to the call by conservatives on the Supreme Court asking “states to raise a case.”
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Other states target illicit drug use during pregnancy. More than one-third now consider it a form of child abuse, resulting in unprecedented forms of criminal and civil punishment. Several states permit civil confinement of pregnant women under the guise of protecting their fetuses. And, 15 states mandate doctors and nurses to report pregnant women suspected of illicit drug use, establishing a low and vague threshold of suspicion rather than actual proof.
Troublingly, the largely overlooked criminal punishments intended by these laws are being upheld in courts. A decade ago, the Alabama Supreme Court ruled in Ex parte Hope Elisabeth Ankrom that the term “child” as used in the state’s Chemical Endangerment Statute applied to viable and nonviable fetuses. And it upheld the chemical endangerment law as applied to pregnant women, finding that it is not only illegal for a pregnant woman to ingest a controlled substance but also to enter homes and other locations where such drugs are manufactured or sold. In 2015, journalist Nina Martin reported that “at least 479 new and expecting mothers have been prosecuted across Alabama since 2006, or more than three times the number previously identified.”
Today, these policies reflect the vision of prosecutors like Charles Condon, who, in his former capacity as circuit solicitor of South Carolina, argued, “We needed a program that used not only a carrot, but a real and very firm stick.” Notably, the South Carolina women most likely to fall under the stick of Condon’s prosecutorial strategies involving pregnancy and controlled substances were Black. Women like Regina McKnight, a Black woman who was the first person in the country to be convicted of murder for having a stillbirth, lived in South Carolina.
How did we get here? Sadly, these problems are not new, but rather an extension of prior forms of subjugation, punishment, and surveillance. Historic and systemic patterns of racism—and white supremacist and xenophobic ideologies—have directly led to current encroachments on civil liberties and civil rights related to pregnancy.
Forced and coercive reproduction churned the wheels of capitalism from the 1600s through the 1800s. Sojourner Truth famously criticized that system, in which she had no recourse as she mothered 13 children and witnessed nearly each one being sold off without any legal relief. In a chilling speech most notably referenced as “Ain’t I A Woman?” she demanded that abolitionists grapple with the dehumanizing conditions to which Black women were subjected.
Yet even the eventual abolition of slavery did not dismantle the coercive use of power to punish, devalue, and deny vulnerable women the ability to govern their reproduction. The 20th-century sterilization practices of the Jim Crow era denied Indigenous, Black, Latina, as well as poor white women the possibility of reproduction.
Only a few decades ago, Fannie Lou Hamer bravely exposed the “Mississippi appendectomy,” a term used to describe the process in which Black girls and women were coercively sterilized. As federal district court judge, Carlton Reeves, wrote “Fannie Lou Hamer’s reporting” informed the nation about a dirty secret in Mississippi—that it “sterilized six out of ten black women in Sunflower County at the local hospital—against their will.”
In his 2018 order enjoining the Mississippi 15-week abortion ban—now before the Supreme Court in Dobbs v. Jackson Women’s Health Organization—from going into effect, Judge Reeves warned that state’s legislators could hardly be taken seriously when claiming their efforts to dismantle abortion rights were rooted in care and concern for the health and well-being of vulnerable women in their state. According to Judge Reeves, “this Court concludes that the Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting.” He’s right.
As Judge Reeves compellingly explained, Mississippi “ranks as the state with the most [medical] challenges for women, infants, and children,” but refuses to address those problems by expanding Medicaid. Exposing the patterns of cruelties endured by women in Mississippi, he wrote that state “leaders are proud to challenge Roe but choose not to lift a finger to address the tragedies lurking on the other side of the delivery room: our alarming infant and maternal mortality rates.”
For a Black woman in Mississippi, it is nearly 188 times more dangerous to give birth than to have an abortion. The Mississippi Department of Health’s most recent investigation of maternal health and mortality, the Mississippi Maternal Mortality Report, found that Black women accounted for “nearly 80% of pregnancy-related cardiac deaths.”
Yet, worryingly, Mississippi is also the same state that polices pregnancies and threatens punishment in cases of miscarriage and stillbirth. At 15 years old, Rennie Gibbs, a Black teenager who experienced a stillbirth, was arrested and charged with “depraved heart murder.” In her case, a medical examiner claimed that the teenager’s admitted drug use during pregnancy demonstrated indifference toward fetal life and the stillbirth directly resulted from her depraved heart. After a lengthy investigation and a prosecution spanning over five years, prosecutors eventually dropped the charges against Gibbs. Had she been convicted, Gibbs would have faced a mandatory life sentence.
Notably, even though the Mississippi law does not mention fetuses, prosecutors interpreted the language that “the killing of a human being with the authority of law by any means” applies to the unborn. Moreover, the Mississippi law disregards intent and declares a person convicted under that statute “shall be imprisoned for life…if the punishment is so fixed by the jury.” Worryingly, such statutes can be misapplied and selectively enforced as in the case of Gibbs.
The call to action today must be to broaden the lens beyond the more obvious attacks on abortion, as this narrow focus overlooks the fact that the anti-abortion movement has embedded itself in law enforcement, criminal prosecution, and child protective services. It ignores or pays inadequate attention to a host of legal concerns affecting pregnancy and liberty, including pregnancy discrimination, forced and coerced sterilization, and the rise in threats of criminal prosecutions and sanctions against poor pregnant women. Most obviously, a failure to integrate a broader perspective and framework harms poor people and among them women of color in particular.
Contemporary pregnancy policing is a story of legal innovation: how old laws are being used in new ways to punish pregnant people, and how new laws emerge to do the same. Legislators and prosecutors who seek to cabin or limit reproductive rights are the innovators, experimenting with new ways of pushing the envelope, increasing prosecutions, expanding the type of conduct punishable under their laws, and spreading their successes to other states.
For example, in Utah, Melissa Rowland’s reluctance to submit to an immediate cesarean section on the advice of her doctor resulted in being arrested and charged with murder for the stillbirth of one of her fetuses. In Florida, a state court authorized Samantha Burton’s involuntary confinement because she refused bed rest against her physician’s recommendation. Several days after her hospital incarceration, Burton, a mother of two, suffered a miscarriage, alone in a dreary, gray hospital room that, according to her lawyer, resembled a jail cell.
A decade ago, The Guardian warned of a “creeping criminalisation of pregnancy across America.” Today, that reality is here.