Prosecutors charged hundreds with pregnancy-related child abuse crimes post-Dobbs, research shows

Child abuse, neglect or endangerment laws were used to charge hundreds of pregnant people with crimes in the two years after the U.S. Supreme Court overturned Roe v. Wade, underscoring the rise of fetal personhood laws, according to a new report. (Getty Images)

More than 400 people were charged with pregnancy-related crimes during the two years after the U.S. Supreme Court overturned federal abortion rights, research released Tuesday shows.

Prosecutors across the country often charged people with some form of child neglect, endangerment or abuse based on allegations of substance use during pregnancy, according to an annual report from the nonprofit Pregnancy Justice. 

Nearly three dozen cases were brought against people who miscarried or delivered stillborns, and in nine cases, pregnant people were accused of obtaining, attempting or researching abortion. 

“Prosecutors are wielding criminal laws to surveil and criminalize pregnant people, their behavior and their pregnancy outcomes,” Dana Sussman, Pregnancy Justice’s senior vice president, told States Newsroom.

Although charges against those experiencing pregnancy loss are less common, Sussman said she fears they could lead people to avoid seeking miscarriage care. 

For instance, a woman who miscarried at home was charged with abuse of a corpse in September 2023, Ohio Capital Journal reported. 

Brittany Watts was around 21 weeks pregnant when she went to the hospital but waited for hours and didn’t get help, according to the Capital Journal, and after she miscarried at home, she returned to the hospital, where staff called police. She was never indicted, and she filed a federal lawsuit in January against the city of Warren, police, hospital officials and hospital staff. 

“Rather than being able to grieve her loss, she was taken away in handcuffs. She was interrogated in her hospital bed while she was still tethered to IVs, and so she wants compensation for her own trauma, but most importantly, wants to make sure that this doesn’t happen to anyone else,” Rachel Brady, Watts’ attorney, told States Newsroom in June.

Watts’ lawsuit alleges local law enforcement and the hospital violated the Fourth and Fourteenth Amendment and the Emergency Medical Treatment and Active Labor Act (EMTALA), which requires hospitals that receive Medicare funding to provide stabilizing medical treatment regardless of a person’s ability to pay or insurance status. The defendants denied liability and the plaintiff’s claims, according to court documents filed in September. 

In this year’s report, pregnancy-related cases cropped up in 16 states, and states with strict abortion bans topped the list again: Alabama (192), Oklahoma (112) and South Carolina (62).

“If you are doing anything that exposes your pregnancy, your fetus to some real risk, perceived or assumed risk, in certain parts of the country, that is a felony,” Sussman said. 

Fetal personhood — the notion that fetuses, zygotes and embryos should have the same legal rights as human beings — comes into play when pregnant people struggling with addiction are drug tested during checkups or at labor and delivery units, Sussman said. 

“In several states, it’s become relatively common practice for people to be charged with a felony for child endangerment or neglect for simply testing positive” on toxicology tests, Sussman said. “And that carries years in prison, and of course, immediate family separation from your newborn and even from your other children in your home, in your family.” 

An investigation by The Marshall Project, Mississippi Today and three other news outlets in 2023 found that local law enforcement and prosecutors in Alabama, Mississippi, Oklahoma and South Carolina applied child abuse and neglect laws to fetuses when pursuing charges against pregnant women. 

Lawmakers in a few states have pitched legislation seeking to curb punitive approaches to addiction among expectant and new mothers. 

A bill advancing in the New York Legislature would require informed consent for drug testing and screening pregnant and postpartum patients unless it’s medically necessary. Legislation took effect in Washington state this summer that prevents the criminalization of pregnancy loss, and requires officials at jails, prisons and immigrant detention centers to report miscarriages and stillbirths to the state annually. Massachusetts legislators passed a law in December that prevents medical professionals from automatically referring substance-exposed newborns to the state Department of Children and Families. 

Prosecutors obtained information about pregnancy-related crimes from health care facilities in 264 out of 412 cases, even in incidents that did not allege substance use, according to the Pregnancy Justice report.

“If people are worrying about losing their children because of family separation through the child welfare system or by going to jail, they are not going to get the care that they need,” Sussman said. “Pregnancy is seen as a moment and a window of opportunity for people to get care. People are motivated, uniquely motivated, and we really squander that opportunity when we turn health care into a place of reporting.”