Criminalization of Pregnancy

*Cherie Correlli

I. Introduction

All over the United States, states are charging pregnant women[1] with crimes under fetal protection laws and recognizing the fetus as a legal victim at a rapidly accelerating rate.[2] Criminalization of pregnancy includes penalizing individuals for actions during their own pregnancies, enforcing laws that punish actions during pregnancy that would not otherwise be criminal or punishable, and discriminating against pregnant people in the application of laws.[3] While these actions against pregnant people generally claim to protect fetal life, they have been found instead to increase the risk of harm to fetuses, primarily by disincentivizing people from seeking prenatal care or treatment for addiction.[4] Additionally, these laws have a discriminatory and harmful impact on a pregnant person’s mental health, physical health, and autonomy.[5]

II. Forms of Criminalization of Pregnancy

A. Criminal Statutes

Some states have enacted or attempted to enact statutes to criminalize fetal endangerment.[6] In 2014, Tennessee enacted a law that made pregnant women guilty of assault for illegal drug use during pregnancy if the child was born addicted to or harmed by the drug.[7] Although the statute lapsed under a sunset provision in 2016, legislators have since attempted to reintroduce similar statutes.[8] Thus far, most attempts to specifically criminalize the actions of pregnant people have been unsuccessful, but the initiatives are widespread and continuous.[9] In September 2022, Wyoming lawmakers narrowly rejected another attempt at introducing legislation criminalizing drug use during pregnancy.[10]

B. [Mis]interpretation of Existing Criminal Laws

While laws specifically criminalizing fetal endangerment by pregnant people are rare, it is common for states to interpret existing criminal laws to apply to the behavior of pregnant people.[11] States have charged women with homicide, reckless endangerment, child abuse, child neglect, and unlawful application of a controlled substance to a minor based on their behavior during pregnancy.[12] For example, Alabama has consistently and aggressively applied its 2016 chemical endangerment law—which was passed to target child exposure to home methamphetamine labs—to pregnant women for drug use while pregnant.[13] In Oklahoma, the inclusion of “unborn child” in the definition of human in homicide law paves the way to charge pregnant people for the death of their fetus.[14] One Oklahoman who suffered a loss in the second trimester of her pregnancy was sentenced to four years in prison for manslaughter, despite the State’s medical expert testifying that the cause of death was unknown and that genetic anomaly and placenta abruption may have been contributing factors.[15]

Even behavior that is not normally criminal can become criminal simply because a woman is pregnant.[16] Women who are otherwise able to consume alcohol legally may be prosecuted for this while pregnant.[17] Refusing medical intervention or treatment, a behavior that is ordinarily not criminal and, in fact, is a constitutionally protected right, may be prosecuted if it is seen to have caused a risk of harm to the fetus—whether or not actual harm occurs.[18] Failure to wear a seatbelt, a minor infraction under most circumstances, can carry harsher penalties for pregnant people because of the perceived risk to the fetus.[19] In one case, a woman shot in the stomach at five months pregnant was indicted on a charge of manslaughter when a grand jury determined that she knowingly initiated the fight that led to the shooting while pregnant.[20]

C. Punitive Civil Fetal Protection Action

Punishing women through the civil legal system is the most common approach to fetal endangerment.[21] Eighteen states are terminating parental rights based on prenatal drug use alone.[22] Minnesota, South Dakota, and Wisconsin have laws that allow women who use drugs during pregnancy to be involuntarily committed to a treatment program for either the length of the program or the length of their pregnancy.[23] Wisconsin’s Unborn Child Protection Act authorizes the state to involuntarily commit pregnant people based only on a suspicionthat the person has or may consume alcohol or a controlled substance during their pregnancy.[24] Since the passage of this Act, approximately 460 women each year have been jailed, forced into medical treatment, or put on house arrest because of the suspicion that they are pregnant and have consumed or may consume drugs or alcohol.[25] Suspicion of drug use that results in an investigation by state authorities can be just as invasive and traumatizing to pregnant people as involuntary commitment or having parental rights terminated.[26] At least one hospital in Maryland uses a threshold of prenatal drug testing that is so low that a woman was reported to the state and subjected to an investigation for eating a poppy seed bagel for breakfast before her labor.[27]

III. Recognition of the Fetus as a Person is Likely to Increase the Prosecution of Women for Endangerment or Harm to Their Fetus

A 2017 review of published judicial decisions in cases of substance abuse during pregnancy found that, in most jurisdictions, women charged with or convicted of crimes against their child or fetus usually won on appeal.[28] In these appellate cases, the outcome hinged on whether the judiciary treated the fetus as a child.[29] The Alabama and South Carolina Supreme Courts determined that the plain meaning of the word “child” included a fetus or “unborn child” and upheld such convictions.[30] In other jurisdictions, where the courts determined that a fetus was not a child in the eyes of the law, appeals were successful.[31]

In recent years, efforts to recognize fetal personhood have increased and have gained even more momentum since the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.[32] Several states have enforced near-total abortion bans since the ruling.[33] Georgia has enacted a law that declares a fetus a person beginning at six weeks gestation, thereby qualifying for tax credits, child support, and inclusion in population counts.[34] In October 2022, the Supreme Court declined to decide whether fetuses are entitled to constitutional rights, leaving the question open for battles to wage in the states.[35] If fetal personhood measures become more prevalent and successful, so too will the criminalization of pregnancy.

IV. Conclusion.

Since 1973, Pregnancy Justice has documented more than 1,700 instances in which women have been arrested, prosecuted, convicted, detained, or forced to undergo medical interventions because of either their pregnancy status or outcome.[36] Roughly three times as many instances of pregnancy criminalization were documented between 2006 and 2020 as between 1973 and 2005.[37] The deprivations of liberty and harms to women and their fetuses will almost certainly continue to increase until these injustices are countered through legal and social protections preventing the penalization of pregnancy. 

*Cherie Correlli is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society, and Research Assistant for Professor Lande. She worked as a birth doula in the Baltimore area for over a decade before law school. Cherie hopes to use her experience in birth work and legal skills to work on reproductive justice issues in the future.

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[1] This article uses a mixture of gendered language that reflects how gender frames pregnancy discrimination systemically and gender-neutral language in recognition of the inclusion of pregnancy-capable people who do not identify as women. See Inclusive and Gender-Neutral Language, Nat’l Insts. of Health (Oct. 20, 2022), https://www.nih.gov/nih-style-guide/inclusive-gender-neutral-language (discussing acceptability of using both gender-specific and gender-neutral language in relation to pregnancy).

[2] Pregnancy Justice, Confronting Pregnancy Criminalization: A Practical Guide for Health Providers, Lawyers, Medical Examiners, Child Welfare Workers, and Policymakers 5, 9 (2022), https://www.pregnancyjusticeus.org/wp-content/uploads/2022/12/202211-PJ-Toolkit-Update-2.pdf

[3] Opposition to Criminalization of Individuals During Pregnancy and the Postpartum Period, Am. Coll. Obstetrics & Gynecology(2020), https://www.acog.org/clinical-information/policy-and-position-statements/statements-of-policy/2020/opposition-criminalization-of-individuals-pregnancy-and-postpartum-period.

[4] Meghan Boone & Benjamin J. McMichael, State-Created Fetal Harm, 109 Geo. L.J. 475, 487 (2021).

[5] Am. Coll. Obstetrics & Gynecology, supra note 3.

[6] Boone & McMichael, supra note 4, at 480.

[7] Id.

[8] Id.

[9] Id. at 480–81 (“In the first two months of 2017, seventeen state legislatures introduced criminal-fetal endangerment measures.  The Missouri legislature even considered the addition of an entirely new crime—‘abuse of an unborn child’—that would criminalize the ingestion of a narcotic drug or controlled substance while a woman knows or reasonably should have known that she is pregnant, regardless of whether the child is born addicted or otherwise harmed.”).

[10] Katie Roenigk, Lawmakers Narrowly Reject Criminal Penalties for Drug Use While Pregnant; Experts Prefer Plans of Safe Care, County10 (Sept. 27, 2022), https://county10.com/lawmakers-narrowly-reject-criminal-penalties-for-drug-use-while-pregnant-experts-prefer-plans-of-safe-care.

[11] Boone & McMichael, supra note 4, at 481.

[12] Id.

[13] Id.

[14] 21 Okla. Stat. § 21-691 (2020).

[15] Pregnancy Justice, supra note 2, at 11.

[16] Boone & McMichael, supra note 4, at 482.

[17] Id.

[18] Id.

[19] Id.

[20] Farah Stockman, Alabamians Defend Arrest of Woman Whose Fetus Died in Shooting, N.Y. Times (June 30, 2019), https://www.nytimes.com/2019/06/30/us/alabama-woman-marshae-jones.html.

[21] Boone & McMichael, supra note 4, at 484.

[22] Id.

[23] Id. at 485.

[24]  Pregnancy Justice, supra note 2, at 12.

[25] Id.

[26] Id. at 13.

[27] Antonia Noori Farzan, Yes, You Can Fail a Drug Test by Eating a Poppy Seed Bagel, as a Maryland Mother Learned, Wash. Post (Aug. 8, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2018/08/08/yes-you-can-fail-a-drug-test-by-eating-a-poppy-seed-bagel-as-a-maryland-mother-learned. See also Theo Hayes, Poppy Seed Bagel Behind Woman’s Ordeal at Towson Hospital, WBALTV (Aug. 8, 2018), https://www.wbaltv.com/article/poppy-seed-bagel-behind-womans-ordeal-at-towson-hospital/22653211.

[28] Cara Angelotta & Paul S. Appelbaum, Criminal Charges for Child Harm from Substance Use in Pregnancy,45 J. Am. Acad. Psychiatry L. 193, 200 (2017).

[29] Id.

[30] Id.

[31] Id.

[32] Kate Zernicke, Is a Fetus a Person? An Anti-Abortion Strategy Says Yes, N.Y. Times (Aug. 21, 2022), https://www.nytimes.com/2022/08/21/us/abortion-anti-fetus-person.html.

[33] Id.

[34] Id.

[35] See Nate Raymond, U.S. Supreme Court Rebuffs Fetal Personhood Appeal, Reuters (Oct. 12, 2022), https://www.reuters.com/legal/us-supreme-court-rebuffs-fetal-personhood-appeal-2022-10-11.

[36] Pregnancy Justice, supra note 2, at 5.

[37] Id.