Where did prosecutions occur?
Documented prosecutions were initiated in 12 states: Alabama, California, Idaho, Kentucky, Mississippi, New Mexico, Ohio, Oklahoma, Pennsylvania, South Carolina, Texas, and Wyoming. While prosecutions were brought in all of these states, six collectively account for the majority of the reported cases, with Alabama and Oklahoma accounting for the overwhelming majority.
What was the defendants’ race and/or ethnicity?
Information concerning the race of the defendants was dependent, like all the report data, on information contained within court, police, or jail records. This information is notoriously unreliable, particularly when it comes to recording ethnicity and multiracial identity. At times, documents reported inconsistent racial or ethnic identities for the same defendant, failed to separate race from ethnicity, or neglected to record race or ethnicity at all.
To the extent that the files did contain data on race and ethnicity, they indicated, that 143 of the 210 defendants were white, 30 were Black, 13 were Native American, 9 were Latinx, and 15 had no information with respect to either race or ethnicity.
What was the defendants’ economic status?
Slightly more than three-quarters of the defendants were low-income individuals. Indicators such as receiving court-appointed counsel or receiving a means-tested benefit like public housing, Temporary Assistance for Needy Families, Medicaid, or Supplemental Nutrition Assistance were taken into account.
What were the pregnancy outcomes in the cases?
Of the 210 cases of documented pregnancy-criminalization cases, 166 contained information concerning the outcome of the pregnancy. Pregnancy outcomes were split into two categories: cases with a live birth and no subsequent infant demise (144/166) and cases in which there was a fetal or infant demise (22/166). Cases involving a live birth represent the overwhelming majority of documented charges.
What types of charges did the defendants face?
Prosecutors used a wide variety of criminal statutes to charge the defendants in these cases, often bringing more than one charge against an individual defendant. In total, the 210 defendants faced 220 charges for conduct related to pregnancy, pregnancy loss, or birth. The majority of charges (198/220) asserted some form of child abuse, neglect, or endangerment.
Did prosecutors have to “prove” fetal harm?
Supporters of pregnancy-related prosecutions purport to do so in the name of protecting the fetus from harm perpetrated by the pregnant person. But prosecutors overwhelmingly charged pregnant people with offenses that allow them to obtain convictions without “proving” that the pregnant person actually harmed the fetus or infant. The lack of a harm requirement was present in 191 of the 220 charges that alleged conduct related to pregnancy, pregnancy loss, or birth.
What allegations did the defendants face?
Charging documents — along with supporting police reports, affidavits, and other court documents — reveal a clearer picture of what acts police and prosecutors consider criminal when associated with pregnancy. Our study categorized allegations found in the assembled case files. Because many cases contained multiple allegations, the total number of allegations (323) far exceeds the number of prosecutions (210).
Which substances were alleged?
As has been the case for decades, nearly all the cases alleged the pregnant person used a substance during pregnancy. In 133 of those cases, substance use was the only allegation made against the defendant. As drug use patterns have changed, pregnancy prosecutions have shifted from targeting the use of crack cocaine to the use of methamphetamines, amphetamines, marijuana, and opiates.
Were others outside of the criminal legal system involved in the cases?
Pregnancy criminalization continues to co-opt health care providers as law enforcement to achieve compliance with its aims. Pregnant people are often drug tested without their knowledge or consent during pregnancy and/or labor and delivery.
And while pregnancy-related prosecutions focuses on the use of criminal law and criminal systems to punish pregnancy-related conduct, the criminal legal system works hand in hand with the family policing system to surveil and punish pregnancy-related conduct.
Recomendaciones
Embarazo Justicia hace las siguientes recomendaciones para abordar la criminalización del embarazo:
- Use federal civil rights agencies to challenge pregnancy criminalization
- Protect against the use of the Comstock Act to effect a national abortion ban
- Ensure that maternal health initiatives address pregnant people with substance use disorder and other mental health disorders
- Expand and enforce privacy protections such as the Health Insurance Portability and Accountability Act
- Pass state laws increasing protections for pregnant people
Leer Pregnancy as a Crime: A Preliminary Report on the First Year After Dobbs ¡aprender más!
Note: This report builds upon and refines the methods used in Pregnancy Justice’s 2023 report, El aumento de la criminalización del embarazo. With significantly more research resources and new analysis, the current data cannot be directly compared with the prior data.