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.\u00a0<\/p>\n
In the fall of 2024, Pregnancy Justice, a national advocacy organization that defends the civil and legal rights of pregnant people, released a study <\/a>documenting 210 pregnancy-related criminal cases brought in the two years that followed the U.S. Supreme Court\u2019s decision in June 2022 in Dobbs v. Jackson Women\u2019s Health Organization that reversed Roe v. Wade. A year later, the organization updated<\/a> the figure to 412 pregnancy-related criminal cases. Many of those cases concerned substance abuse during pregnancies that resulted in live births.<\/p>\n 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.<\/p>\n \u201cI think there\u2019s 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\u2019s what can most easily be criminalized,\u201d Ziegler told the American Independent. \u201cIf you\u2019re trying to criminalize what\u2019s being done by drug companies or doctors, a lot of those people are not based in states with abortion bans \u2026\u00a0 whereas, if you\u2019re trying to prosecute someone for taking abortion pills or burying fetal remains or whatever, that person is in the state already. There\u2019s no question that they\u2019re subject to prosecution.\u201d\u00a0<\/p>\n 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: \u201cThe public messaging was that there was no interest in punishing women. And increasingly, I don\u2019t think that consensus is very stable, and that may be part of why we\u2019re seeing more prosecutions, right? Because people are much more comfortable owning that that\u2019s something they want to do, and going forward with it, and justifying it. And that trend seems to be continuing.\u201d<\/p>\n Ziegler noted the case of Kentucky resident Melinda Spencer<\/a> 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<\/a> in Kentucky, with few exceptions, Miranda King, the commonwealth\u2019s attorney for Breathitt, Powell, and Wolfe counties, was forced to dismiss the homicide charges<\/a> against Spencer, citing a Kentucky statute<\/a> that \u201cprohibits the prosecution of a pregnant woman who caused the death of her unborn child.\u201d<\/p>\n Ziegler said the prosecutor in the Kentucky case expressed regret that she had to drop the charges.\u00a0<\/p>\n \u201cI 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\u2019m sworn to defend,\u201d King had said<\/a>.<\/p>\n Farah Diaz-Tello, senior counsel and legal director of the national reproductive justice organization If\/When\/How, told the American Independent that it\u2019s 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\u2019t illegal.\u00a0<\/p>\n \u201cWe\u2019re retrofitting laws to punish people just because we think that they have done something wrong,\u201d Diaz-Tello said. \u201cAn example that we see a lot are charges for abuse of a corpse. Most states have a law that says you can\u2019t desecrate dead bodies; that\u2019s pretty reasonable. We don\u2019t want that. But those laws don\u2019t say anything about fetuses. They don\u2019t 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.\u201d\u00a0<\/p>\n Dana Sussman, Pregnancy Justice senior vice president, told the American Independent that in a post-Dobbs world \u201cevery pregnancy loss is potentially suspect.\u201d\u00a0<\/p>\n \u201cIf abortion is banned in half the states in this country \u2014 and more when we\u2019re talking about functionally banned, like six-week bans and things like that \u2014 anyone who experiences a pregnancy loss, there is this sense that it is a potential crime,\u201d Sussman said. \u201cSo how long did they wait to call 911? Did they tell other people they were pregnant? Were they happy\u00a0 to be pregnant? Did they search for abortion medication online? Did they take abortion medication? Did they get prenatal care? \u2026 This concept that, you know, if something goes wrong in a pregnancy, that\u2019s a criminal act. That is the world in which we live right now.\u201d<\/p>\n \u201cAnd 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,\u201d Sussman said.\u00a0<\/p>\n