Imagine the trauma of not only losing a pregnancy to a miscarriage, but then being arrested, jailed, and charged following the loss. According to legal scholars, the number of pregnant people being charged with crimes in connection with miscarriages, along with those charged in connection with abortions, is increasing.
In the fall of 2024, Pregnancy Justice, a national advocacy organization that defends the civil and legal rights of pregnant people, released a study documenting 210 pregnancy-related criminal cases brought in the two years that followed the U.S. Supreme Court’s decision in June 2022 in Dobbs v. Jackson Women’s Health Organization that reversed Roe v. Wade. A year later, the organization updated the figure to 412 pregnancy-related criminal cases. Many of those cases concerned substance abuse during pregnancies that resulted in live births.
Mary Ziegler, a legal historian and a professor at the University of California Davis School of Law, pointed to the final goal of declaring fetal personhood and the availability of abortion medication, even in states where abortion is banned, as reasons for the number of criminal cases.
“I think there’s been still a recognition that there are forces pushing toward more prosecutions of conduct during pregnancy, both including the fact that fetal personhood is still the end game for the anti-abortion movement, and also given, I think, the really obvious frustration with the availability of abortion pills, which has made abortion bans ineffective, but I think has also increased the pressure to criminalize conduct during pregnancy, because that’s what can most easily be criminalized,” Ziegler told the American Independent. “If you’re trying to criminalize what’s being done by drug companies or doctors, a lot of those people are not based in states with abortion bans … whereas, if you’re trying to prosecute someone for taking abortion pills or burying fetal remains or whatever, that person is in the state already. There’s no question that they’re subject to prosecution.”
Ziegler said that recent cases make it increasingly clear that anti-abortion activists who once insisted they had no interest in prosecuting women who had abortions have changed their tune: “The public messaging was that there was no interest in punishing women. And increasingly, I don’t think that consensus is very stable, and that may be part of why we’re seeing more prosecutions, right? Because people are much more comfortable owning that that’s something they want to do, and going forward with it, and justifying it. And that trend seems to be continuing.”
Ziegler noted the case of Kentucky resident Melinda Spencer as an example: Spencer was charged with first-degree fetal homicide, tampering with evidence, and abuse of a corpse after terminating her pregnancy and burying the fetus near her home. Although abortion is banned in Kentucky, with few exceptions, Miranda King, the commonwealth’s attorney for Breathitt, Powell, and Wolfe counties, was forced to dismiss the homicide charges against Spencer, citing a Kentucky statute that “prohibits the prosecution of a pregnant woman who caused the death of her unborn child.”
Ziegler said the prosecutor in the Kentucky case expressed regret that she had to drop the charges.
“I sought this job with the intention of being a pro-life prosecutor, but must do so within the boundaries allowed by the Kentucky State law I’m sworn to defend,” King had said.
Farah Diaz-Tello, senior counsel and legal director of the national reproductive justice organization If/When/How, told the American Independent that it’s not simply the numbers in the Pregnancy Justice report that are notable, but also the increased efforts by prosecutors to try to find a law to apply to something that in fact isn’t illegal.
“We’re retrofitting laws to punish people just because we think that they have done something wrong,” Diaz-Tello said. “An example that we see a lot are charges for abuse of a corpse. Most states have a law that says you can’t desecrate dead bodies; that’s pretty reasonable. We don’t want that. But those laws don’t say anything about fetuses. They don’t say that if you have a stillbirth, you need to immediately head to the ER, or you can prosecute it. These laws are just not made for these situations.”
Dana Sussman, Pregnancy Justice senior vice president, told the American Independent that in a post-Dobbs world “every pregnancy loss is potentially suspect.”
“If abortion is banned in half the states in this country — and more when we’re talking about functionally banned, like six-week bans and things like that — anyone who experiences a pregnancy loss, there is this sense that it is a potential crime,” Sussman said. “So how long did they wait to call 911? Did they tell other people they were pregnant? Were they happy to be pregnant? Did they search for abortion medication online? Did they take abortion medication? Did they get prenatal care? … This concept that, you know, if something goes wrong in a pregnancy, that’s a criminal act. That is the world in which we live right now.”
“And increasingly, we are hearing the stories and learning of cases where they experienced a pregnancy loss at home, and then they were arrested. They called 911, and they were arrested. They passed out on the sidewalk and then they were arrested,” Sussman said.
Polls carried out by the Abortion Attitudes Project and published by Ms. magazine have consistently shown that Americans do not support charging pregnant people who have abortions or miscarriages with crimes.
Asked about the large number of criminal cases brought for substance abuse during pregnancy, Sussman noted: “I think when we’re cutting funding for women to get prenatal care, in general, or to get access to substance use treatment while they’re pregnant, that just creates the perfect storm of women who are unable to get the care that they need to safely protect their own health and the health of the fetus, and then they’re arrested. … We are certainly not seeing a slowing down of the punitive response to pregnancy.”
Sussman said that the endgame for anti-abortion groups are fetal personhood laws and that pregnancy-related cases are efforts to make that a reality: “One of the challenges we face is the believability gap. … Most people don’t believe this is happening. We also have to show that this is the natural, tangible extension of fetal personhood. That is not a theoretical outcome, that is not a hypothetical outcome, that is a real outcome.”
Fetal personhood laws aim to grant embryos and fetuses the same legal rights as born people, often beginning at fertilization. According to Pregnancy Justice, 17 U.S. states have established fetal rights laws.
“Over 400 women in just two years were arrested, and it’s because of fetal personhood. If fetal personhood didn’t exist, these women would not face charges,” Sussman said. “So when lawmakers are talking about equal protection for fetuses and embryos, it’s not ‘equal protection,’ it is superior protection. And what that does is that puts pregnant people’s lives at risk, it puts their liberty at risk, and it takes away equality for women and pregnant people.”