When pregnancy loss becomes a crime

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 at least 1,300 pregnant people nationwide have been criminally prosecuted for having miscarriages or stillbirths, or for self-managing an abortion. 

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.