Charged With a Crime or Left to Die
Since the US Supreme Court disbanded the abortion protections in Roe v. Wade in the summer of 2022, women in America have been left with few options if they are unable to carry a pregnancy to term.
According to a new report published yesterday from Pregnancy Justice — an advocacy group that promotes pregnant people’s bodily autonomy and rights — in the first year after the Dobbs v. Jackson Women’s Health Organization decision, at least 210 pregnant people nationwide were charged with criminal conduct associated with pregnancy, abortion, pregnancy loss, or birth.
These prosecutions were done during a one-year period from June 24, 2022 to June 23, 2023, and represented a record number of pregnancy related criminal prosecutions documented in a single year, the highest number identified over any 12-month period in research projects that have looked back as far as 1973.
After Roe v. Wade was overturned in the summer of 2022, the authorities in Conservative states began to charge women with crimes related to their pregnancies, oftentimes without being accused of even violating an abortion ban. One of the lead researchers for the project, Wendy Bach, a professor at the University of Tennessee College of Law, said that in one of the cases, a woman delivered a stillborn baby at her home about six or seven months into pregnancy. “Bach said that when the woman went to make funeral arrangements, the funeral home alerted authorities and the woman was charged with homicide.”
“Our new report shows how the Dobbs decision emboldened prosecutors to develop ever more aggressive strategies to prosecute pregnancy, leading to the most pregnancy-related criminal cases on record,” said Lourdes A. Rivera, president of Pregnancy Justice. “This is directly tied to the radical legal doctrine of ‘fetal personhood,’ which grants full legal rights to an embryo or fetus, turning them into victims of crimes perpetrated by pregnant women, continued Rivera, “This report demonstrates that, in post-Dobbs America, being pregnant places people at increased risk, not only of dire health outcomes, but of arrest.”
According to the report, entitled: Pregnancy as a Crime: A Preliminary Report on the First Year After Dobbs, a majority of the criminal charges took place in states that have enshrined fetal personhood in their civil and criminal laws, including Alabama (104 cases), Oklahoma (68 cases), and South Carolina (10 cases). In addition, these states also have near-total abortion bans and some of the worst maternal and infant health statistics in the country. Here is an excerpt from a recent Pregnancy Justice Press Release:
“The report finds that 22 women were criminalized for experiencing a pregnancy loss. Five cases included the mention of abortion, an attempt to end a pregnancy, or that the defendant researched or explored the possibility of abortion.
The majority of charges cited in the report alleged substance use during pregnancy, for legal and illegal substances alike. In the vast majority of cases (191), the charges brought against the pregnant person did not require any “proof” of harm to the fetus or baby, but merely a perceived risk of harm.
The vast majority of defendants were low-income. The charges ranged from child neglect, abuse, or endangerment to murder. In 121 of the 210 cases, information was obtained or disclosed in a medical setting.”
Rivera also confirmed that of those three states that are charging women with the most pregnancy related crimes, the supreme courts in those states have issued opinions recognizing fetuses, embryos or fertilized eggs as having the rights of people. These addendum laws are the reason the states have been able to move forward with so many felony charges.
Most of the cases in question include charges of child abuse, neglect or endangerment against the fetus, listed as the victim. Only one charge listed in the report was made in connection with an abortion ban, and it concerned a law that was later overturned. Most cases also involved allegations of substance use during pregnancy. Four other cases that were cited involved abortion-related allegations, based on the possession of abortion pills.
As a result of these laws that give fetuses at least some of the rights of people, Alabama clinics suspended offering in vitro fertilization after a state Supreme Court ruling recognized embryos as “extrauterine children” in a wrongful death case brought by couples whose frozen embryos were destroyed in an accident. Following this suspension, Republicans who controlled the state government moved quickly to amend the law to protect IFV providers from legal liability, while still ensuring that criminal pregnancy related prosecutions against women could continue.
It was also confirmed last week by a Georgia medical committee that the second preventable abortion-related death in that state, since the Dobbs ruling, had occurred in November of 2002. Candi Miller, a woman who attempted to navigate her own medical abortion out of fear of being accused of a crime, died in her own bed with her teenage son by her side. Amber Nicole Thurman, another woman in Georgia, also died in August of 2022, from a fatal infection that her suburban Atlanta hospital was perfectly able and equipped to treat, after her doctors hesitated to perform a basic surgery that could have been deemed illegal.
Women who are at risk of dying from carrying a pregnancy to term are now left with the following options: wait to die in pregnancy or take your abortion into your own hands and risk dying or or being criminally prosecuted. It is hard to believe that in 2024, women are still facing these same options for basic medical attention and care.
While Republicans were quick to correct the mistake that led to suspending IVF treatments in Alabama and other states, the GOP made a point to keep the laws in place that persecute women for trying to protect their own health. If women can be charged with a crime for taking a drug to end a pregnancy, then maybe we should start charging the men who take a drug in order to impregnate those women with conspiracy.
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Amee Vanderpool writes the SHERO Newsletter, is an attorney, published author, contributor to newspapers and magazines, and an analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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I am thinking now of the Salem witch "trials" where women (mostly women) were subjected to kangaroo-court like proceedings designed to find them guilty of witchcraft and kill them. This current environment is little different, with morally superior beings using religion to punish people they don't believe are moral. It's some 400 years later and the poison of religious righteousness has never been eradicated from this country. It may, in fact, be much stronger than ever. It's humilating to be a citizen of this country when we are on the brink of religious authoritarianism that some of the founders of the country fled.