It became more common for authorities to charge women with crimes related to their pregnancies after the fall of Roe v. Wade in 2022, a new study found — even if they’re almost never accused of violating abortion bans.
In the year after the U.S. Supreme Court ended the nationwide right to abortion in its Dobbs v. Jackson Women’s Health Organization ruling, at least 210 women across the country were charged with crimes related to their pregnancies, according to the report released by Pregnancy Justice, an advocacy organization. That’s the highest number the group has identified over any 12-month period in research projects that have looked back as far as 1973.
Wendy Bach, a professor at the University of Tennessee College of Law and one of the lead researchers on the project, said one of the cases was when a woman delivered a stillborn baby at her home about six or seven months into pregnancy. Bach said that when the woman went to make funeral arrangements, the funeral home alerted authorities and the woman was charged with homicide.
Because of confidentiality provisions in the study, Bach would not reveal more details on the case. But it was one of 22 cases in the study that involved the death of a fetus or infant.
“It’s an environment where pregnancy loss is potentially criminally suspect,” Lourdes Rivera, president of Pregnancy Justice, said in an interview.
The researchers caution that the tally of cases from June 24, 2022, through June 23, 2023, is an undercount, as were earlier versions. As a result, they can’t be positive there wasn’t a stretch between 1973 and 2022 with as many cases as after the Dobbs ruling. During the earlier period, they found more than 1,800 cases — peaking at about 160 in 2015 and 2017.
Most of the cases since Roe’s end include charges of child abuse, neglect or endangerment in which the fetus was listed as the victim. Most involved allegations of substance use during pregnancy, including 133 where it was the only allegation. The group said most of the charges do not require proof that the baby or fetus was actually harmed.
Only one charge in the report alleged violations of an abortion ban — and it was a law that was later overturned. Citing privacy concerns, the researchers did not identify the state where that charge originated. Four others involved abortion-related allegations, including evidence that a woman who was charged had abortion pills.
Bach pointed to the news organization ProPublica’s reporting last week about two Georgia women whose deaths a state commission linked to the state law that bans abortion in most cases after the first six weeks of pregnancy. The family of one of them, Candi Miller, said she was avoiding seeking medical treatment after she took abortion pills for fear of being accused of a crime.
States with abortion bans — including 14 that bar it at all stages of pregnancy and four, such as Georgia, where it’s illegal after about the first six weeks — have exceptions for women who self-manage abortions. But Bach said that people seeking abortion have been charged with other crimes.
“She did not want to seek help because of her fear that she would be prosecuted,” Bach said. “That is a really realistic fear.”
The majority of the cases in the study came from just two states: Alabama with 104 and Oklahoma with 68. The next state was South Carolina, with 10.
Rivera said a common thread of those three states — which were also among the states with the most cases of pregnancy-related charges before the Dobbs ruling — is that their supreme courts have issued opinions recognizing fetuses, embryos or fertilized eggs as having the rights of people.
Several states have laws that give fetuses at least some rights of people, and the concept received broad attention earlier this year when Alabama clinics suspended offering in vitro fertilization after a state Supreme Court ruling recognized embryos as “extrauterine children” in a wrongful death case brought by couples whose frozen embryos were destroyed in an accident. Within weeks, the Republicans who control the state government adopted a law to protect IFV providers from legal liability.
“We really need to separate health care from punishment,” Rivera said. “This just has tragic endings and does not properly address the problem. It creates more problems.”