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Analysis

Miscarriage of Justice: The Danger of Laws Criminalizing Pregnancy Outcomes

Allowing the government to strip away liberty based on pregnancy status opens the door to expansive public intrusions in personal decisions throughout pregnancy and childbirth.

View the entire Abortion Rights Are Essential to Democracy series

Repro­duct­ive rights are under attack, and that means our rights to parti­cip­ate fully and freely in civic life are too. The crim­in­al­iz­a­tion of abor­tion forces a dual depriva­tion upon people who can become preg­nant: Not only do we lose bodily autonomy, we lose our place in the body politic. 

On Septem­ber 1, Texas became the first state in almost 50 years to enforce a plainly uncon­sti­tu­tional ban on early-preg­nancy abor­tions. Late the next night, the Supreme Court issued an unsigned order enabling the law to remain in effect while its legal­ity is chal­lenged in court. Justice Sonia Soto­may­or’s dissent high­lights that the law relies on “citizens as bounty hunters” who will receive “cash prizes for civilly prosec­ut­ing their neigh­bors’ medical proced­ures.” 

The lawmakers who proposed this unusual scheme did so in order to circum­vent resist­ance to, and judi­cial review of, the enforce­ment of laws crim­in­al­iz­ing abor­tion. Yet these two approaches—the lever­aging of civil and crim­inal penal­ties—­man­age to accom­plish the same goals: Texas law S.B.8 is part of a more sweep­ing move­ment to crim­in­al­ize any outcome of preg­nancy that lawmakers deem undesir­able, includ­ing but not limited to abor­tion. 

And the Supreme Court’s fail­ure to block S.B.8 invites other states to revive previ­ously dormant anti-abor­tion legis­la­tion into active law, includ­ing laws which vastly expand crim­inal liab­il­ity for people parti­cip­at­ing in or perform­ing abor­tions.

Crim­in­al­iz­a­tion of abor­tion already occurs even ostens­ibly with the protec­tions of Roe v. Wade. So too does the crim­in­al­iz­a­tion of preg­nancy—defined by the Amer­ican College of Obstet­ri­cians and Gyneco­lo­gists as “the punish­ing or penal­iz­ing of indi­vidu­als for actions that are inter­preted as harm­ful to their own preg­nan­cies, includ­ing enforce­ment of laws that punish actions during preg­nancy that would not other­wise be crim­inal or punish­able.” 

Incar­cer­a­tion is one of many danger­ous ways the govern­ment exerts control over preg­nant people. The recent prosec­u­tion and convic­tion of Brittney Poolaw provides a chilling example: The mere alleg­a­tion that the teen’s drug use contrib­uted to miscar­riage led to her arrest for first-degree manslaughter; she was jailed for a year and a half before trial, unable to afford $20,000 bail, and then sentenced to four years in prison. 

The group National Advoc­ates for Preg­nant Women repor­ted on a client who wanted a vaginal birth and was taken into police custody, had her legs strapped together, and was forced to undergo a C-section—be­cause doctors believed that would be safer for the fetus and a federal court ruled that her rights were second­ary to the state’s interest in preserving the life of the fetus.

Of course, this is the very rationale that under­girds all abor­tion restric­tions. Allow­ing the govern­ment to strip away liberty based on preg­nancy status opens the door to expans­ive public intru­sions in personal decisions through­out preg­nancy and child­birth. To wit, even after Roe was decided in 1973, people have been subjec­ted to arrest and prosec­u­tion for miscar­riage, still­birth, or attempt­ing to end their own preg­nancy. The Amer­ican Bar Asso­ci­ation opposes such crim­inal charges, yet never­the­less upwards of 1,200 women have been arres­ted for preg­nancy outcomes post-Roe. 

Unsur­pris­ingly, these arrests perpetu­ate the biases of the crim­inal legal system and dispro­por­tion­ately crim­in­al­ize Black and work­ing-class women. And since Black people exper­i­ence miscar­riage and still­birth at signi­fic­antly higher rates than their white or Hispanic coun­ter­parts, they’re partic­u­larly exposed to the risk of crim­inal invest­ig­a­tions and legal liab­il­ity. 

Crim­in­al­iz­ing preg­nancy outcomes—in­clud­ing abor­tion­s—is a waste of public funds and contrib­utes to mass incar­cer­a­tion’s crisis of excess­ive punish­ment. Yet the true costs lie not in the state’s budget, but in the lives of every­day people, need­lessly caught up in the system. A crim­inal convic­tion, with or without time behind bars, can lead to numer­ous collat­eral consequences, includ­ing lost jobs or profes­sional licenses, comprom­ised hous­ing, lack of access to public bene­fits, polit­ical disen­fran­chise­ment and a life­time of earn­ings loss

Many who undergo abor­tions already have chil­dren of their own to care for, and incar­cer­at­ing parents has a cascade of detri­mental impacts on their minor chil­dren. And for people who exper­i­ence preg­nancy loss, their trauma is compoun­ded by a miscar­riage of justice as well. 

Of course, preg­nant people aren’t the only ones at risk, either: A dormant Utah law attempts to enforce “accom­plice” liab­il­ity, captur­ing anyone who helps someone access an abor­tion (or tries to), cover­ing every­one from a taxi driver to a family member that pays for the proced­ure. 

Like crim­in­al­iz­a­tion more gener­ally, crim­in­al­iz­ing abor­tion and preg­nancy upends lives, breaks up famil­ies, and disrupts entire communit­ies. The Supreme Court has repeatedly affirmed that people’s abil­ity to parti­cip­ate equally in the economic and social life of the nation is facil­it­ated by their abil­ity to control their repro­duct­ive lives. But laws regu­lat­ing preg­nancy outcomes mean an indi­vidu­al’s rights are depend­ent on their repro­duct­ive status. Decrim­in­al­ized repro­duc­tion and access­ible abor­tion are both a neces­sary part of a free, fair and func­tion­ing demo­cracy.