In the United States, more than 50 women have been prosecuted for child neglect or manslaughter since 1999 because they were found positive for drug use after a miscarriage or stillbirth, according to an investigation by The Marshall Project, The Frontier, AL.com, and The Washington Post. Many legal experts say these prosecutions will likely become more common now that Roe v. Wade has been overturned, making it easier for states to pass laws that give fetuses and embryos the same rights as children or their mothers.
There have been at least 20 felony cases in Alabama, 14 in South Carolina and 10 in Oklahoma, as well as nine in other states where prosecutors have embraced some form of “fetal personhood” in bringing criminal charges after miscarriage or stillbirth. Seven of the Oklahoma stillbirth and miscarriage cases were filed in the last two years. In many instances, the fetuses were not developed enough to be viable outside the womb. Sentences have ranged from probation to 20 years in prison. Some legal experts say that the Supreme Court’s June ruling in Dobbs v. Jackson Women’s Health is expected to encourage broader efforts in some states to establish and protect legal rights for the unborn. The decision overturned a key point of Roe, which treated fetuses as legally part of their mothers until they could live outside the womb. While the full consequences of Dobbs are still not clear, it gives states leeway to expand child endangerment and homicide laws to punish people for what happens during their pregnancies. Cases in Alabama, South Carolina and Oklahoma foreshadow how prosecutions could play out if states move to punish people who seek an abortion, rather than going after abortion providers.