A new book, The Pregnancy Police, details how pregnant Americans have faced arrest and prosecution for supposed crimes against fertilized eggs, embryos, and fetuses since long before the overturning of Roe v. Wade.
Author Grace Howard examined over 1,000 arrests made since 1973 that were due to pregnancy outcomes. She argues that legal statutes have been used to surveil and punish people. Howard spoke to the Institute for Public Accuracy about the history and current stakes of this issue.
GRACE HOWARD; grace.howard@sjsu.edu
Howard is an Associate Professor of Justice Studies at San Jose State University and author of the recently released The Pregnancy Police.
“It was challenging to get access to data” tracking these arrests, Howard said. “That’s an ongoing issue. The arrests are being made under so many different charges––including, very often, charges that say nothing about pregnancy or fetuses. You can’t just do a Freedom of Information Act request for all of the pregnancy charges. It’s a real hodgepodge: reporters sharing data and cases, legal nonprofits, a few lawyers. In a few cases, prosecutors are proud and feel they are policy innovators, and wanted to share their cases with me.”
The charges are varied and state-specific. “If you’re in Alabama and you’re a pregnant person who tests positive for drugs, you’re likely going to be charged with ‘chemical endangerment of a minor.’ In South Carolina, the charge is ‘unlawful neglect of a minor.’ In Tennessee, which had only two years of official criminalization, they used ‘fetal assault.’ Those are the three biggest charges. But it could also be ‘exposure to drugs through the umbilical cord,’ homicide, manslaughter.
“Post-Dobbs, we’re seeing states further criminalizing in the area of abortion. But we’re not seeing prosecutors charge people with illegal abortions. We’re seeing other charges. I have to imagine they’re trying to fly under the radar. An unlawful abortion charge would make international news right now. So instead they call it child abuse.” NPR reports that several states have passed laws allowing women to be charged with criminal child abuse for exposing their fetuses to illicit substances (including abortifacients) during pregnancy.
Overall, for the three states that Howard researched in The Pregnancy Police, the number of charges have “steadily increased” since 1973. Howard outlines three eras of criminalization. The first, in South Carolina, targeted impoverished black women who tested positive for crack-cocaine. “U.S.-wide,” Howard said, the charges have been “heavily biased towards women of color.” Later on, however, states like Alabama began to panic about meth, which was conceived of as a drug for poor white people. Alabama passed a law on chemical endangerment, applying it to pregnant people. The third era focused on the opioid epidemic in Tennessee. Though states have often been less harsh on opioid criminalization, that has not held true when it comes to drug use during pregnancy. “You’re still fully condemned [for drug use] if you’re a pregnant person,” Howard said.
Howard added: “I perceive a fourth wave that is now being inspired or facilitated by the overturning of Roe v. Wade. People were in denial that Roe would be overturned. Now that it’s gone, they’re being forced to see the reality. Some prosecutors told me that Roe was a barrier, and that barrier is gone.
“Our primary surveillance mechanism is medical providers. Seventy-five percent of the cases [reviewed in The Pregnancy Police] originated because a healthcare provider made a report. If you want a healthier pregnancy, you should go get medical care. But if those providers are an arm of the police, they may be doing tests and procedures for evidence collection, not for your safety or health. If you come into the ER with a fever or a blood clot and say you took abortion pills, they can call the cops or social services.”
