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In the Supreme Court’s landmark abortion decision in 2022, Justice Samuel Alito wrote that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
That’s now playing out in radically different ways, depending on where you live.
It’s challenging to track criminal prosecutions for anything related to pregnancy or reproductive health access nationally because these laws are often changing at a very local level in county courts and city ordinances.
Our reporting — along with our partners at AL.com, The Post and Courier in South Carolina, Mississippi Today and The Frontier in Oklahoma — has explored the shifting reproductive rights landscape. That includes examining how the concept of fetal personhood has put women behind bars, even when they give birth to healthy babies.
Fetal personhood is the idea that a fetus should receive the same legal treatment as a child. Some states are prosecuting women for drug test results under criminal child abuse and neglect laws, which historically have not applied to fetuses in most states.
The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization upended a key point of the legal landscape set in Roe v. Wade decades earlier. The Roe decision had treated the fetus and mother as the same entity until the baby could live outside the womb. Dobbs allows state laws to treat the fetus’ and mother’s rights as separate, which some legal experts say could result in more widespread use of child endangerment and homicide laws to punish people for what happens during their pregnancies.
Our reporting showed places where this was already happening. South Carolina has a long history of similar prosecutions that pre-date the Dobbs decision. But Alabama has been using these prosecutions the most in recent years, especially in Etowah County, about an hour northwest of Birmingham. In Mississippi, it’s not clear if the women being prosecuted for testing positive for drugs while pregnant have actually broken state law. And Oklahoma continues to prosecute women for marijuana use while pregnant — even if they have a valid medical prescription.
The concept of fetal personhood can also come into play during pregnancy loss. Last year, we documented more than 50 cases across the U.S. where women were prosecuted for a miscarriage or stillbirth because of a positive drug test result. The state didn’t have to prove definitively in most cases that the drugs caused the pregnancy loss. A stillbirth and a positive drug test was often all it took to push the women into a plea deal, resulting in lengthy prison sentences.
In some cases, women were charged under manslaughter laws. In November, a woman in Pennsylvania was charged with third-degree murder after the local coroner’s office ruled that fentanyl toxicity caused her stillbirth.
What’s unclear is what will happen in states with fetal personhood or fetal heartbeat laws when someone finds fetal remains — even if they’re the result of a miscarriage or stillbirth. Miscarriages are common in the U.S. and many happen at home, and now pregnant people may avoid going to a hospital if they think it could result in a criminal investigation. In Ohio, a woman faces a possible charge of felony abuse of a corpse because she delivered a stillborn 22-week fetus that clogged a toilet.
Earlier this year, lawmakers in Oklahoma, Texas, Kentucky, South Carolina and Arkansas proposed bills seeking to use fetal personhood under homicide or manslaughter laws to punish people seeking abortions or taking abortion pills. None of those bills became law, but abortion rights advocates expect similar proposals in the 2024 legislative sessions.
For its part, Susan B. Anthony Pro-Life America does not support policies that criminalize women’s actions, says Kelsey Pritchard, the organization’s director of state public affairs.
“Pro-life leaders across the country unequivocally reject any efforts to subject women to criminal punishment following an abortion. Over 60 percent of women who have had abortions report pressure to abort from boyfriends, family or others,” Pritchard said in an email.
But she said the group does support Idaho’s “abortion trafficking” law, which Gov. Brad Little signed earlier this year. Supporters argue it’s not a travel ban, but a law that makes it illegal for an adult to drive a minor across state lines for an abortion without parental consent, which Pritchard says could protect underage girls from abusers and sex traffickers. A federal judge blocked the law from taking effect until a challenge regarding its constitutionality is resolved.
Abortion rights advocates argue that travel bans — such as the ones some Texas cities have passed to stop people from seeking abortions in neighboring New Mexico — won’t survive constitutional scrutiny. They say such laws are attempts to intimidate and scare women.
But Alyssa Morrison, an attorney at the progressive advocacy organization Lawyers for Good Government, said that doesn’t mean pregnant people or anyone trying to help them obtain reproductive health care won’t be sued, subjected to a criminal investigation or locked up.
“The idea of being investigated is utterly terrifying for most people,” she said.
Morrison said there’s also massive confusion about the specific exceptions to various state abortion bans, especially among doctors who could face criminal prosecution for performing the procedure.
“Because these laws are written in the most ambiguous terms, a lot of physicians are unsure if they will end up in jail for doing their job,” she said.
Hours after a Texas woman won a court order Thursday allowing her to obtain an abortion due to medical necessity, state Attorney General Ken Paxton threatened to prosecute any doctors involved in the procedure. Late Friday, the state Supreme Court temporarily blocked the woman from terminating her pregnancy.