Rising pregnancy prosecutions threaten rights and health care access

By Tashi McQueen
AFRO Staff Writer
tmcqueen@afro.com

Since the fall of Roe v. Wade on June 24, 2022, women have faced arrest and prosecution following pregnancy loss—part of a concerning rise in the criminalization of miscarriages. The growing legal risks in states with strict abortion bans are reshaping reproductive care and threatening the rights of pregnant women across the country.

“Each of these cases is a pregnant person who has been incarcerated or separated from their children, who has experienced a pregnancy loss, or maybe they’ve had law enforcement called on them when they’re seeking health care,” said Michele Ko, a project manager of the research team at Pregnancy Justice. “These cases can be deeply traumatic experiences that really strip pregnant women of their dignity and their humanity.”

To capture the impact in the year following the rollback of Roe v. Wade, Pregnancy Justice—a nonprofit that tracks pregnancy-related prosecutions in the U.S.—released a report highlighting the increased trend of criminalizing pregnancy.

The report documented 210 pregnancy related prosecutions during the year post Roe v. Wade’s overruling, which Ko notes is the highest number of cases documented by researchers in a single year. The study also found that the majority of the cases involve allegations of substance use during pregnancy. In 133 cases, substance use was the sole allegation.

“The vast majority of pregnancy related prosecutions involve prosecutors actually using existing laws like child endangerment, neglect and abuse statutes beyond their original intent to criminalize pregnancy,” said Ko.

Ko described Pregnancy Justice as one of the top leaders in tracking pregnancy related prosecutions for many years. 

“Pregnancy Justice has data going all the way back to 1973–the Roe decision–which includes over 400 documented cases between 1973 and 2005 and nearly 1,400 cases between 2006 and June 2022, the date of the Dobbs ruling, which overturned Roe,” said Ko.

The larger problem these cases present is deterring people away from seeking health care, inevitably producing worse maternal health outcomes.

“Since the Supreme Court’s decision to overturn Roe v. Wade, the legal landscape has shifted significantly,” said Ross Goodman, a criminal defense attorney and founder of Goodman Law Group in Las Vegas. “As a criminal defense attorney, I’m seeing legal risks increase in both volume and ambiguity, which can have serious consequences.”

The report also highlights a significant vulnerability for Black mothers since Dobbs. Of the 210 women impacted, 30 were Black.

The criminalization of pregnancy has long targeted communities of color, beginning in the 1980s with debunked claims about cocaine’s effects on unborn children. As drug trends shifted, prosecutions expanded to poor white communities, though low-income people of all backgrounds remain most affected.

Brittany Watts and Amari Marsh, both Black women, faced criminal charges after experiencing miscarriages—Watts in Warren, Ohio, in September 2023, and Marsh in Orangeburg County, S.C., in early 2023. Watts was charged with “abuse of a corpse,” while Marsh faced a “homicide by child abuse” charge. Both cases were ultimately dropped after grand juries declined to indict—Marsh in March 2023 after spending 22 days in jail, and Watts in February 2024.

“In states with strict abortion bans, a miscarriage is treated less like a medical event and more like a potential crime scene,” said Goodman. “We’ve seen cases where women have been investigated or even charged for not seeking medical care ‘soon enough’ or simply because the circumstances of the pregnancy loss raised suspicion among people who are not medical professionals.

“We’re watching due process and bodily autonomy being pushed aside,” added Goodman. “In states with strict abortion bans, the state’s interest in a pregnancy outweighs the rights of the person carrying it. That creates a situation where pregnant women are treated more as vessels under surveillance rather than people experiencing a medical event.”

Ko said the solution lies in policy advocacy.

“We need to be changing policy and practices to ensure that pregnant women have access to the health care and support they need without fear of criminalization,” said Ko. “It’s really going to take all of us to ensure that all people–regardless of pregnancy status or outcome–have the freedom to make decisions about their bodies and experience a life of dignity and respect.”