More than 200 pregnancy-related prosecutions in the first year after Roe

In the year Roe v. Wade was overturned, at least 200 people in the U.S. were prosecuted for conduct related to their pregnancies — the highest number of cases in a single year ever recorded, according to a new report released Tuesday.

The report, compiled by advocacy group Pregnancy Justice, is the first comprehensive look at pregnancy-related criminal charges filed between June 2022 and June 2023. However, researchers caution that it is likely still an undercount.

“To be honest, I think we’re just scratching the surface of what’s happening,” said Wendy Bach, a law professor at the University of Tennessee and lead researcher on the report.

The vast majority of prosecutions documented in the report do not involve abortions. However, the report says that five cases involve allegations of having an abortion, attempting an abortion, or “investigating or exploring the possibility of having an abortion.” Only one case was charged under a law designed to criminalize abortions. The rest involved a range of other laws, such as one prohibiting “abuse of a corpse.”

Four of these cases occurred in states where abortion is illegal or hostile to the procedure.

More than 200 of the 210 prosecutions filed involve allegations of substance use during pregnancy. In nearly 200 of the cases, prosecutors charged people under laws that criminalize child abuse, neglect or endangerment — charges that treat an embryo or fetus as a person, complete with rights and protections that may rival those of the person carrying it. More than 100 prosecutions filed by Pregnancy Justice occurred in Alabama, a state whose Supreme Court recently ruled that embryos are “ectopic children.”

Most of the cases also involved statutes that don’t require prosecutors to prove harm to a fetus or infant. Instead, prosecutors must show that a defendant posed a “risk” to the pregnancy — which can lead to criminalization of behavior that isn’t actually dangerous, advocates say.

“Ultimately, it’s often based on someone’s perception of risky behavior, however they define it, and it’s often based on stereotypes or outdated ideas,” said Zenovia Earle, director of media and communications. for pregnancy justice.

People were already facing criminal consequences for their pregnancies even before Roe was struck down. In just one example, Alabama police arrested Ashley Caswell, then two months pregnant, in 2021 for allegedly testing positive for methamphetamine and “endangering” her fetus, The Guardian reported last year. Caswell remained incarcerated for the rest of her pregnancy and was forced to deliver her baby alone, in a jail shower, according to court and medical records.

More than three-quarters of the cases Pregnancy Justice discovered involved low-income defendants.

In 22 of the cases, the death of the fetus or child was involved. For Bach, this is evidence that in a post-Roe country, “pregnancy loss is suspect.”

“The idea that the fetus can be a person and a victim of a crime is used in important ways in the case of miscarriage,” Bach said. “So instead of approaching miscarriage with care, with support, with recognition of the often tragic life circumstances that it brings, we approach it with criminal suspicion, with criminal investigation, with prosecution.”

On Monday, KFF Health News shared the story of a 23-year-old woman who suffered a miscarriage in South Carolina and was arrested in June 2023 and charged with “murder/manslaughter by child abuse.” The woman, Amari Marsh, was held in jail for 22 days, then placed on house arrest and had her case approved by a grand jury in August — 13 months after she left prison. Marsh faced the possibility of 20 years to life in prison.

When Marsh was arrested, abortion was not yet illegal in South Carolina. Today, abortion is illegal in the state after six weeks of pregnancy.

In another notable case, a grand jury declined to investigate the case of Brittany Watts, an Ohio woman who allegedly suffered a miscarriage in a bathroom last year. A nurse allegedly told police about Watts, who was charged under an “abuse of a corpse” statute. Her case is outside the scope of the Pregnancy Justice report.

Pregnancy Justice found that more than half of cases involved information obtained in a medical setting. In a separate 2023 study of the criminalization of self-managed abortion between 2000 and 2020, the reproductive justice group If/When/How found that in 45% of cases, health care providers or social workers had tipped off police about a suspected self-managed abortion.

“This is a significant phenomenon, and now we have people all over the country who are hiding real health care needs and not seeking care. That’s the effect of this,” Bach said. “I would like to have a society where people who need care seek care. But if this is what’s going to happen, then it’s perfectly rational not to seek care.”

For Pregnancy Justice, the link between prosecutions and the medical community raises questions about pregnancy oversight after Roe — particularly how the CDC, which already tracks abortion data nationwide, might expand its reach.

Project 2025, a policy playbook for a future conservative administration drafted by the influential Heritage Foundation think tank, proposes that the CDC force every state to report the number of abortions they perform, as well as complications from abortions, miscarriages, stillbirths and “treatments that accidentally result in the death of a child (such as chemotherapy).” Bach and Earle declined to discuss the Project 2025 proposal, citing Pregnancy Justice’s nonprofit status.

The findings, released Tuesday, are preliminary. Pregnancy Justice researchers plan to complete the study within two years.

“Every day, as the research progresses,” Bach said, “we are discovering more evidence of this, and the harder we look, the more we find.”