A new study finds that it has become more common for authorities to charge women with crimes related to their pregnancies after the overturning of Roe v. Wade in 2022, even though they are almost never charged with violating abortion bans.
In the year after the U.S. Supreme Court ended the nationwide right to abortion in its Ruling Dobbs vs. Jackson Women’s Health OrganizationAt least 210 women across the country were charged with crimes related to their pregnancies, according to the report released by Pregnancy Justice, an advocacy group. That’s the most the group has identified over a 12-month period in research projects dating back to 1973.
Wendy Bach, a professor at the University of Tennessee College of Law and one of the lead researchers on the project, said one of the cases involved a woman who gave birth to a stillborn baby at home, about six or seven months into the pregnancy. Bach said when the woman went to make funeral arrangements, the funeral home alerted authorities and the woman was charged with murder.
Due to confidentiality requirements in the study, Bach declined to provide further details about the case. But it was one of 22 cases in the study in which a fetus or infant had died.
“It’s an environment where pregnancy loss is potentially suspicious to criminals,” Lourdes Rivera, president of Pregnancy Justice, said in an interview.
The researchers caution that the case count from June 24, 2022, to June 23, 2023, is an undercount, as were previous versions. As a result, they cannot say with certainty that there was not a period between 1973 and 2022 with as many cases as there were after Dobbs’ ruling. In the earlier period, they found more than 1,800 cases, with a peak of about 160 in 2015 and 2017.
Most of the cases since Roe was overturned involve allegations of child abuse, neglect or endangerment where the fetus was named as the victim. Most involve allegations of substance use during pregnancy, including 133 where it was the only allegation. The group said most allegations do not require proof that the baby or fetus was actually harmed.
Only one complaint in the report alleged violations of an abortion ban — and it was a law that was later repealed. The researchers did not name the state where that complaint came from, citing privacy concerns. Four other complaints involved abortion-related allegations, including evidence that a woman charged had abortion pills.
Bach pointed to the reporting by the news organization ProPublica last week about two Georgia women whose deaths a state commission tied to state law that bans abortions in most cases after the first six weeks of pregnancy. The family of one of them, Candi Miller, said she avoided medical treatment after taking abortion pills for fear of being charged with a crime.
States with abortion bans — including 14 that prohibit it at all stages of pregnancy and four, such as Georgia, where it is illegal after about the first six weeks — have exceptions for women who self-initiate abortions. But Bach said people seeking abortions have been charged with other crimes.
“She didn’t want to seek help because she was afraid of being prosecuted,” Bach said. “That’s a very real fear.”
The most cases in the study came from just two states: Alabama with 104 and Oklahoma with 68. The next state was South Carolina, with 10.
Rivera said a common thread among those three states — which also were among those with the most pregnancy-related lawsuits before the Dobbs ruling — is that their supreme courts have made rulings recognizing that fetuses, embryos or fertilized eggs have human rights.
Several states have laws requiring fetuses to receive at least some of the human rightsand the concept received widespread attention earlier this year when Clinics in Alabama Suspended offering in vitro fertilization after a state Supreme Court ruling recognized embryos as “ectopic children” in a wrongful death lawsuit brought by couples whose frozen embryos were accidentally destroyed. Within weeks, Republicans who control the state government passed a law shielding IFV providers from legal liability.
“We really need to separate health care from punishment,” Rivera said. “This just has tragic endings and doesn’t address the problem. It creates more problems.”