Hundreds of women have been prosecuted in four states where law enforcement officials have expanded their use of child abuse and neglect laws in recent years to police the conduct of pregnant women under the concept of “fetal personhood,” a tenet promoted by many anti-abortion groups that a fetus should be treated legally the same as a child, the Marshall Project reports. Moving beyond prosecutions for lost pregnancies, prosecutors have begun to focus on those who give birth and used drugs during pregnancy, marking a significant shift toward criminalizing mothers instead of following the more traditional path of referring such cases to child welfare agencies. The practices appear most prevalent in Alabama, Mississippi, Oklahoma and South Carolina.
Medical privacy laws have not provided much protection, as healthcare providers have granted law enforcement with access to patients' information, in many cases without prior authorization. In some cases, pregnant women have been prosecuted for neglect or child endangerment even when they gave birth to healthy babies. While prosecutors say they are protecting babies from harm and seeking to help mothers in some cases, medical experts say prosecuting pregnant women who seek medical care could lead them to avoid medical care altogether, putting the mother and developing fetus at risk. They say the goal should be to provide proper prenatal care and treatment, rather than punishment. Legal experts argue that under this broadened scope of child welfare law, prosecutors could charge pregnant women who drink wine or use recreational marijuana, even where it is legal. Dr. Tony Scialli, an obstetrician/gynecologist who specializes in reproductive and developmental toxicology, said the prosecutions ignore the effects of separating a newborn from a mother, which research has shown harms the child. “Even women who are using illicit drugs, they’re usually highly motivated to take care of their children," he said. "Unless the mother is being neglectful, separating the baby and mother is not healthy for either of them.”