Law enforcement carried out nearly 1,400 arrests of people for allegedly endangering “unborn life” between 2006 and the fall of Roe v Wade in 2022, says a new report that found a sharp rise in the criminalization of pregnant women. The report is the only comprehensive account of the subject during the Roe era, according to The Guardian. Relatively few cases captured in the report involve abortion. Instead, they focus on individuals who lost pregnancies or were accused of “child abuse” while pregnant. “Pregnant people are, simply by virtue of being pregnant, vulnerable to criminal charges: child abuse or endangerment if they are accused of exposing their fetus to some perceived or actual risk of harm; or murder, feticide, or manslaughter if they experience a pregnancy loss,” Pregnancy Justice's president, Lourdes Rivera, wrote in the report. “Now, without the protections of Roe, we can expect pregnancy criminalization to continue to increase." The legal advocacy group behind the report uncovered more than 1,800 cases where law enforcement or health care workers criminalized people for their pregnancies between Roe’s emergence in 1973 and its end in 2022.
Almost 80% of cases documented in the report took place in Alabama, South Carolina, Tennessee, Oklahoma, and Mississippi. In Tennessee, a provision known as the “fetal assault law” penalized people whose newborns had been exposed to or harmed by a drug. Nine out of 10 cases in the report involved allegations of drug use while pregnant. One-quarter of the cases involved allegations that someone had used legal substances, like prescription opioids, alcohol, and nicotine. Two out of three cases resulted in a live birth without any mention of harm done to the baby. Alabama, South Carolina, and Oklahoma have expanded the legal meaning of “child” to include fetuses in their criminal law. Also known as “the fetal personhood movement,” the push legally redefines fetuses as people with rights that can compete with or even outstrip those of women carrying them. At least 11 states have added fetal personhood into their constitutions or laws, while another five states have added fetal personhood into their criminal codes. Thirty-eight states have “fetal homicide” laws on the books, which make it a separate crime to cause a pregnancy loss. “Halting criminalization requires repealing ‘fetal personhood’ laws and ending the collusion between the criminal and family regulation systems disrupted,” Rivera said. “We urge policymakers to include pregnant people within drug anti-criminalization efforts and embrace evidence-based approaches like access to comprehensive health care without fear or punishment.”
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