Pregnancy Criminalization in the United States

History

Legal regulation of reproduction in the United States dates back to colonial times, when the doctrine of partus sequitur ventrem ensured that children born to enslaved mothers were also enslaved.² During the late 1800s, access to abortion and contraception became increasingly restricted, and by 1910, abortion was illegal at every stage of pregnancy across the United States.³ Abortion laws began to loosen in the mid-1900s because of a variety of factors, including concern regarding deaths from illegal, unsafe abortions and the inability of women to obtain abortions even when the fetus was at risk for severe birth defects.⁴ In 1973, the Supreme Court ruled in Roe v. Wade that a woman’s right to an abortion was protected under the 14^th Amendment.³ Around the same time, the federal government declared a “War on Drugs,” and the fetal protection and personhood movement gained traction, leading to new laws allowing a fetus to be treated as a victim of a crime and women to be prosecuted for actions deemed harmful to their own pregnancies, such as crack cocaine use.^2,5

Fetal personhood is the belief that a fetus is a human being entitled to full legal and constitutional rights from conception or earlier. Thus, in fetal personhood states, any tort or crime against a “person” would also include a fetus and presumably allow prosecution of anyone who contributes to pregnancy loss or fetal harm. In Dobbs v. Jackson, which overturned Roe, the justices did not address fetal personhood directly but paved the way for states to greatly limit abortion care.⁶ States have subsequently demonstrated renewed interest in fetal personhood.⁷ Nearly half the states now have fetal personhood rights established by statute or common law, some of these found within antiabortion laws that went into effect after Dobbs.⁸

Although pregnancy criminalization has long existed in the United States, rates have accelerated following the Dobbs decision, especially in states where there is already aggressive prosecution of pregnant women. The true number of prosecutions is unknown because of limitations in data collection and accessibility. Paltrow and colleagues performed the earliest research in this area, showing an estimated 1,800 cases of pregnancy criminalization between 1973 and 2020.^9,10 The vast majority of these cases involved substance use, but they also included circumstances where a woman refused a cesarean section (C-section), gave birth at home, or fell down stairs. A follow-up study in 2023 showed that the majority of arrests occurred in Alabama, Oklahoma, Mississippi, Tennessee, and South Carolina.¹⁰ Nearly all cases involved allegations of substance use, with the most common substances being methamphetamine, cannabis, and cocaine. A third of these cases were initiated or reported by a medical professional. Most of these women were considered “indigent.”¹⁰ Although rare, prosecutors have also pursued charges against pregnant women who attempt suicide. Bei Bei Shuai was charged with murder and attempted feticide in 2011, after she intentionally ingested rat poison and her 33-week-old fetus was delivered via C-section but died soon after.¹¹ A more recent study documented 210 pregnancy criminalization cases in the year following the Dobbs decision, the highest number of cases recorded in a single year, representing a high-water mark in pregnancy-related charges.^10,12

Laws Used to Prosecute

The types of laws that states have used to prosecute pregnant or postpartum women for acts while pregnant include feticide, child endangerment, child abuse, homicide, and others. Some laws, such as feticide, were enacted to protect pregnant persons and their fetuses from third-party criminal acts.¹³ For instance, Congress passed the Unborn Victims of Violence Act in 2004 following the high-profile murder of Laci Peterson, who was eight months pregnant at the time of her death. This law creates a separate federal offense for the death of an “unborn child” while committing an offense against the pregnant woman.¹⁴ Despite the purpose of feticide laws to deter violence against pregnant women, they have been used to prosecute pregnant women themselves. Approximately 38 states now have a feticide law.⁸

Child abuse, drug delivery, and chemical endangerment laws have also been used in these prosecutions. One of the earliest cases occurred in Florida in the late 1980s, when Jennifer Johnson was prosecuted for “delivering” cocaine metabolites to her infant via the umbilical cord during the 60- to 90-second period after birth but before the umbilical cord was severed. The court in this case determined that the legislature did not intend for “delivery” to extend to these circumstances and also noted that the state had other means of child protection, such as removal of the infant after birth, and the larger repercussions of criminalizing substance use during pregnancy, such as deterrence, or avoidance of obstetrical care altogether.¹⁵

Chemical endangerment laws have become an increasingly common means of prosecution, particularly in states where fetal personhood has been established. As an example, the Alabama Chemical Endangerment of a Minor law, passed in 2006, prohibits exposing a child to environments where substances are produced or distributed or where the child has contact with the controlled or chemical substance.¹⁶ This law was enacted in response to a surge of home methamphetamine labs in the late 1990s to early 2000s and was intended to deter or punish parents who exposed their children to these substances within the home.¹⁷ This law began to be used to prosecute pregnant women using substances, on the basis that a “child” included a fetus and the “environment” extended to the womb. The Alabama Supreme Court upheld this interpretation, holding that a “child” extends to a fetus from conception and then, more recently, that an “unborn child” includes embryos.^18,19 The latter decision resulted in panic about how this might affect in vitro fertilization, because the accidental or intentional destruction of embryos might then give rise to civil or criminal liability for medical professionals. The Alabama legislature subsequently passed a law granting civil and criminal immunity to in vitro fertilization (IVF) providers but did not limit the state court’s interpretation of fetal personhood.²⁰

Prosecutors do not have to prove that the mother’s acts resulted in actual fetal harm or pregnancy loss to charge or convict under chemical endangerment laws. In the majority of pregnancy criminalization cases, no actual harm to the fetus or infant is proven.^10,21 Prosecutors also have used failure to obtain prenatal care as evidence of a crime.¹⁰ Even in cases resulting in pregnancy loss or negative outcomes, the link between the mother’s substance use and the clinical consequences is tenuously linked, if at all. Many of these women are already at high risk for poor natal outcomes because of factors correlated with substance use: lack of prenatal care, poor nutrition, smoking, poverty, social stress, and other conditions. They may experience pregnancy loss in the first or early second trimester, when the rates of miscarriage are elevated more generally, with very young women (younger than 20) at even greater risk.²² Some may not even be aware they are pregnant when they miscarry. This may be because many women with substance use disorders (SUDs) do not intend to become pregnant; in one study, nearly 86 percent of pregnant women with opiate use disorder reported they did not intend to become pregnant.²³ Brittany Poolaw’s case demonstrates some of these complex factors at play. Ms. Poolaw was a 19-year-old Native American woman in Oklahoma who was approximately four months pregnant when she miscarried. She was subsequently charged and convicted of first-degree manslaughter because the state argued that she miscarried as a result of methamphetamine use. The medical examiner did not determine a cause of death for the fetus, noting that placental abruption, genetic anomalies, and maternal methamphetamine use were contributing.²⁴ Nevertheless, Ms. Poolaw was sentenced to four years in prison. Interestingly, medical experts may not be called to testify at all in these cases; Angelotta and Applebaum²¹ reviewed 24 appellate cases involving criminal prosecution of a woman for substance use during pregnancy and found that medical opinions were referenced in only nine cases.

The prosecution of Regina McKnight provides another example of the tenuous link between substance use and pregnancy loss. Ms. McKnight was a 22-year-old African American woman in South Carolina, who, in 2001, became the first person in the United States to be convicted for “homicide by child abuse” after experiencing a stillbirth in the setting of prenatal crack cocaine use.²⁵ Prosecutors alleged Ms. McKnight had a “depraved heart,” the legal standard for homicide, because she ingested an illicit substance during pregnancy, and she was sentenced to 20 years in prison. Her case inspired numerous other similar prosecutions, and laws initially designed to protect pregnant women from violence during pregnancy became a means to punish pregnant women for conduct interpreted as harmful to their own pregnancies and set a precedent for women being prosecuted for pregnancy outcomes.²⁵ The case also advanced erroneous assumptions in the legal system that all pregnancies lead to healthy babies absent so-called misconduct on the part of the pregnant woman. In 2008, after Ms. McKnight served eight years, the South Carolina Supreme Court unanimously reversed the conviction, concluding she did not receive a fair trial because of her attorney’s failure to call expert witnesses to testify regarding the lack of scientific evidence to support the claim that crack cocaine use caused the stillbirth.^25,26

Impact on Women

The purported purpose of pregnancy criminalization is to protect the fetus and to encourage women to seek substance or mental health treatment. But there is also the moral and social influence of common ideas about what it means to be a “good mother.” Women who violate the ideal vision of a selfless, nurturing, and omnipresent maternal figure are often treated more harshly by the criminal legal system.²⁷ Jurisdictions prosecuting women who “violate” these ideals fail to consider the complex interplay between “volitional” acts, such as substance use, in the context of addiction and the multitude of factors that precipitate and perpetuate substance use or other “negligent” acts among pregnant women.

The view, especially in fetal personhood states, is that, even if the mother’s acts do not result in proven harm, it is the violation of this ideal that should be punished. Using drugs while pregnant is treated as a strict liability offense, similar to drunk driving. For example, Mitch Floyd, an Alabama prosecutor turned judge stated, “[T]here’s a force that’s more powerful than that to me, and that is a child is helpless, and God has put one person on this planet to be the last-line defense, to be the fiercest protector of that child, and that is its mother” (Ref. 28, para 40). He reiterated that his intent in prosecuting women under Alabama’s chemical endangerment law was to help women “not reoffend, to get clean, to get reunited” (Ref. 28, para 44).

Although intended to protect mothers and babies, the practical impact of prosecution is largely the opposite: women are deterred from treatment. As an example, Tennessee passed a fetal assault law in 2014, which was the first law in the United States to directly criminalize substance use during pregnancy.²⁹ The reported purpose was to decrease the frequency of neonatal abstinence syndrome (NAS) in context of the opioid epidemic. Approximately 124 women were arrested prior to the law’s expiration in 2016. If charged, Child Protective Services usually removed the woman’s children from her custody. Women could assert an affirmative defense that they were actively enrolled in or had successfully completed an addiction recovery program. But there was no exception for women who could not find suitable treatment during their pregnancies, because of financial status, availability, accessibility, or other reasons. Bowers and colleagues²⁹ surveyed women in the state in 2017, 28 of whom had been arrested or charged under the law. They found that the vast majority of these women had a history of domestic violence or abuse, most had other children, and the law resulted in them avoiding prenatal care, trying to give birth at home, or leaving the state. Approximately half the women who were arrested lost custody of their children. Some reported increased substance use to cope with the loss of their children. There was no decrease in NAS cases during the time the law was in effect.²⁹

Because it may be a time of motivation to improve health as well as a time of increased contact with medical providers, pregnancy is an opportunity to engage women with substance use disorder in care.³⁰ Obstetrical and substance use treatment in the perinatal period has numerous benefits for pregnancy outcomes among women with substance use disorders, including decreased risks of low birth weight, prematurity, fetal demise, and neonatal withdrawal syndromes and reduced overdoses in the postpartum period.³⁰ In general, women with substance use disorders face barriers to care, including co-occurring mental health conditions, lack of transportation and childcare, and limited availability of providers.³⁰ Punitive approaches add to these challenges, as pregnant women with substance use disorders may postpone or forgo care out of concerns about detection, stigma, child protection services involvement, loss of custody, and legal ramifications.^30,31 Not surprisingly, substance use during pregnancy is associated with delayed and substandard prenatal care and an increased likelihood of no postpartum care.³⁰

Laws prosecuting women for substance use during pregnancy do not address the lack of available treatment options for those they are prosecuting, even though the state may mandate treatment as part of the plea bargain process or diversion from prosecution. In many states, substance use treatment for pregnant or postpartum women is not available or accessible. In 2018, only 23 percent of drug treatment facilities offered services specifically designed to support pregnant or postpartum people.³² These programs were more likely to offer services such as childcare, transportation, or domestic violence interventions. Ironically, some of the lowest rates of availability were in the South and Midwest; the South has some of the highest rates of pregnancy criminalization. Insurance coverage also poses problems. In most states prior to 2022, Medicaid lapsed at 60 days postpartum. Nearly half of U.S. births are covered by Medicaid, with a disproportionate number being children from indigenous and minoritized groups.³³ Under the American Rescue Plan Act of 2021, states had the option to extend coverage to 12 months postpartum. Nearly all states have done so now,³⁴ but even that does not go far enough, given the likelihood that these mothers will need treatment for years, not months.

Other impacts of prosecution relate to incarceration and the collateral consequences of arrest and confinement, even if the individual is ultimately not convicted. The impact of child-parent separation, especially earlier in life, is well documented and leads to many adverse outcomes for both parent and child.^35,36 Over half of incarcerated women are mothers with minor children, and many of these women are the single caregiver or economic support for the home.³⁷ Thus, when single mothers are incarcerated, their children are often forced to out-of-home placements. If confined for a prolonged period, the incarcerated woman will likely lose her job and housing, not to mention face considerable stigma or judgment, even if not convicted.

Impact on Medical Professionals

Criminalization of pregnancy leads to ethics concerns in the medical setting because it leads to policing by medical professionals and thus diminishes confidentiality and trust, two key components of the clinician-patient relationship. Health care providers are obligated to act in patients’ best interests, yet there is a history of clinicians reporting pregnant women to authorities for behaviors viewed as harmful to pregnancy.^1,5 In the late 1980s, out of concern for increasing drug use among obstetrical patients, the Medical University of South Carolina (MUSC) instituted a drug screening program in which pregnant women who tested positive were referred to police for prosecution. Women who were arrested after positive drug screens filed suit against the City of Charleston, alleging the policy violated the U.S. Constitution. The district court ruled in favor of the city on the basis that the women had consented to testing. The Fourth Circuit Court of Appeals affirmed, holding that the searches were reasonable under the “special needs” exception, because protecting the health of mothers and children outweighed the invasion of privacy, even if the women did not consent. In 2001, the U.S. Supreme Court ruled that MUSC’s policy violated the Fourth Amendment on the grounds that disclosing medical tests to police without consent violated the reasonable expectation of privacy.³⁸

Medical practitioner involvement in “test and report” and other punitive measures against pregnant patients generates fear and mistrust and deters women from seeking treatment, thus creating a barrier to care that puts pregnancies at risk for poor outcomes rather than protecting mothers and fetuses as purported.⁵ Furthermore, such practices have been shown to be influenced by bias and racism and to be clinically unnecessary and ineffective in deterring substance use during pregnancy.¹ Pregnancy criminalization creates ethics dilemmas for medical professionals, placing clinicians in competing health care and law enforcement roles, thus raising concerns about principles of dual agency, patient autonomy and informed consent, confidentiality, beneficence, nonmaleficence, and justice.¹

Role of Treaters, Experts, and Advocates

Women who are prosecuted and incarcerated under existing laws face a complex array of stressors, which may influence the development or worsening of substance use, psychiatric, or behavioral disorders. Psychiatrists working with this population in a correctional setting should have a good understanding of substance withdrawal, the treatment of addiction, and the impact of child-parent separation and should screen for preexisting trauma and posttraumatic stress disorder and other factors that perpetuate substance use or risky behaviors in pregnancy. Psychiatrists should inquire about the pregnant person’s perception of the events leading to incarceration; shame and guilt can affect suicide risk and depressive symptoms. A woman prosecuted under these laws could have experienced a recent pregnancy loss; treaters should not assume that the loss was desired or that the woman did not bond with the fetus. In addition, the woman should be monitored for emergence of postpartum syndromes necessitating psychiatric treatment, including anxiety, depression, and psychosis.

As experts in criminal cases, forensic psychiatrists may be consulted in the mitigation context to provide education about the neurobiology and psychology of substance use disorders, stressors related to pregnancy, and the impact of preexisting trauma and to offer insight into the defendant’s decision-making and unique personal circumstances that led to substance use. Experts would less likely be involved in cases involving insanity pleas but could be called to offer opinions in states allowing evidence of diminished capacity (i.e., substance-induced psychosis). In the civil arena, experts could be called in cases involving alleged malpractice in fetal personhood states. One example would be cases where a psychiatrist knew or should have known a pregnant patient was using substances or intended to abort and failed to protect the fetus or warn authorities.

Physicians are also in a unique position to function as advocates when not in the expert role. Many medical organizations have taken a stance against pregnancy criminalization, including the American Society of Addiction Medicine (ASAM),³⁹ the American College of Obstetricians & Gynecologists (ACOG),¹ and the American Psychiatric Association (APA).³⁴ The consensus among these organizations is that pregnancy criminalization deters natal and postpartum treatment and may promote policies that result in unnecessary child removal and that other public health approaches could achieve the goals of maternal-child wellness. Educating the public, legal professionals, and legislators about the complex array of social, biological, and psychological factors that lead women to use substances before, during, and after pregnancy or otherwise neglect natal care is crucial to promote compassion and understanding of this vulnerable population. Education would hopefully also generate more global solutions about ways society can better support mothers and their children who already face a multitude of financial, psychological, and social barriers to treatment and long-term health and wellness.