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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.