In the wake of the 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned the 1973 Roe v. Wade decision, a growing number of pregnant people are facing criminal charges not just for seeking abortion services but also for the circumstances surrounding their pregnancy losses.
Pregnancy criminalization occurs when the state deems that acts associated with “pregnancy, pregnancy loss, birth, and/or associated healthcare” can result in criminal prosecution. Although the Dobbs decision prompted many states to adopt or begin enforcing laws criminalizing abortion, the practice of criminalizing pregnant people is not new. In the 50 years after the Roe decision, over 2,000 pregnant people were prosecuted for pregnancy-related issues. According to the nonprofit Pregnancy Justice, at least 210 individuals were charged with crimes “associated with their pregnancy, abortion, pregnancy loss, or birth” in the year following the Dobbs decision.
Victims of pregnancy criminalization are often individuals experiencing substance abuse disorders, mental health crises or poverty, but not always. In seven states, anyone who goes through the traumatic experience of a miscarriage or stillbirth can be subjected to criminal investigation.
In 2015, Anne Bynum sought medical care at an Arkansas hospital after giving birth to a stillborn fetus. Even though Bynum brought the remains of the fetus with her to the hospital, she was charged with “concealment of birth” and sentenced to six years in prison due to a misogynistic 17th-century statute meant to criminalize the actions of women who were pregnant while unmarried. The conviction was later overturned, but the emotional impact of the proceedings could not be undone.
Bynum’s case is not unique. Across the United States, pregnant people face arrest, prosecution and imprisonment for complications that end their pregnancies or result in stillbirths. Criminalizing pregnancy prioritizes unviable life over the health and autonomy of a living person. It punishes individuals for seeking the medical help they need after the trauma of losing a pregnancy.
The criminalization of pregnancy sends a terrifying message to anyone who can give birth: For as long as you are pregnant, your body belongs to the state.
