Women of Color Will Face More Criminalized Pregnancies in Post-‘Roe’ America
On May 15, 1999, Regina McKnight gave birth to a stillborn five-pound baby girl at Conway Medical Center in South Carolina. She named her Mercedes.
Five months later, McKnight — an unhoused Black woman — was arrested on charges of homicide by child abuse after her daughter’s autopsy indicated that McNight had used cocaine while pregnant. Following her trial, a jury found McKnight guilty, and she was subsequently sentenced to 20 years in prison. Although the conviction was reversed in 2008, McKnight had already lost eight years of her life being unjustly incarcerated.
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According to a recent report from the National Advocates for Pregnant Women (NAPW), a nonprofit organization that provided pro bono legal representation for McKnight, hers is one of the more than 1,700 documented cases since 1973 in which a pregnant person has been arrested, prosecuted, convicted, detained, or forced to undergo medical interventions for doing something that was interpreted as harmful to their fetus (or not doing something that was supposedly required). Most share demographic similarities with McKnight.
“Historically, we’ve seen the criminalization of people of color, young people, and people with lower incomes who’ve had miscarriages and other types of pregnancy losses that the state deemed were their fault,” says Lupe M. Rodríguez, executive director of the National Latina Institute for Reproductive Justice (the Latina Institute). “These groups are the most likely to be reported to law enforcement and investigated.
But, warns Rodríguez and other experts, the situation is about to get worse. Although the criminalization of various aspects of pregnancy occurred prior to the Supreme Court’s recent decision to overturn Roe v. Wade, several of the so-called “trigger laws” that took effect in 13 states following the ruling go a step further, effectively granting “the unborn” (i.e. fetuses, and in some cases, embryos) the same rights and protections as any (born) person.
In turn, that could make endangering or harming a fetus a crime, and its all-inclusive mobile resort (the pregnant person) the primary suspect. Other states are expected to introduce similar legislation, or expand the scope of their existing laws to a similar effect. And while the Roe reversal is a major blow to anyone with a uterus, the inevitable wave of state-level regulation — backed by newly emboldened conservative law enforcement and courts — will continue to disproportionately affect people of color.
How We Got Here
Modern criminalization of pregnancy began in the 1980s, when the Reagan-era escalation of the “War on Drugs” coincided with the rise of the myth-turned-stereotype of Black women as “welfare queens” and “crack moms” — part of a moral panic rooted in racism, and fueled by breathless media coverage on the plight of so-called “crack babies.”
“Black women were being criminally punished for carrying pregnancies to term,” says Michele Goodwin, S.J.D., law professor at University of California – Irvine with expertise in constitutional law, health law, and reproductive justice, and author of the book Policing the Womb: Invisible Women and the Criminalization of Motherhood. “Some who sought prenatal care had doctors who identified them as having miscarriages and stillbirths, then turned their private patient information over to law enforcement.”
Yet abortion activists on both ends of the spectrum — from those in favor of reproductive rights and autonomy, to groups that self-identified as “pro-life” — largely ignored the ongoing surveillance and arrest of pregnant Black women, she explains. “This was a significant misstep of the reproductive rights movement,” Goodwin tells Rolling Stone. “And it really set the stage for what we’re seeing now.”
Pregnancy Criminalization Post-Roe
When the Supreme Court overturned Roe v. Wade and determined that decisions regarding abortion should be left to state-level lawmakers — rather than, say, people who can get pregnant — they also created the opportunity for states to further control other aspects of pregnancy as well. “The forces that have succeeded in restricting abortion access are the same forces that criminalize pregnancy,” says Dana Sussman, acting executive director of the NAPW.
The direct connection is the concept of fetal personhood — the idea that a fetus (or, in some cases, an embryo) is its own independent, legally recognized person, Sussman explains. Currently, at least nine states (Alabama, Arizona, Georgia, Kansas, Kentucky, Louisiana, Missouri, Montana, and Utah) have added broad personhood language to their state constitutions that extend the rights and protections of their laws to fetuses. These provisions were previously in conflict with Roe v. Wade, but now can (and likely will) take effect — effectively rewriting criminal and civil codes, so that any mentions of harming another person or child can be applied during pregnancy, says Sussman.
While some states may take advantage of post-Roe momentum to pass new legislation criminalizing abortion or harming fetuses, Sussman expects more states to apply their existing laws in more expansive ways. “There’s no shortage of laws already available to prosecutors — although, for the most part, they were never meant to be applied during pregnancy,” she tells Rolling Stone. Examples include child abuse or endangerment charges for pregnant people found to be using drugs, as well as murder, manslaughter, or feticide charges in cases involving pregnancy loss.
There are 38 states with feticide or “fetal homicide” laws currently in effect, which, according to Sussman, were passed under the pretext of protecting pregnant people from intimate partner violence, but in practice, have been used to criminalize miscarriage and stillbirth. This is something Sussman says will only get worse in the wake of the reversal of Roe v. Wade.
“Some of these feticide laws have language in them that provide exemptions for ‘legal abortion,’” she explains. “If ‘legal abortion’ doesn’t exist in your state anymore, that exemption doesn’t apply.”
Sometimes, criminal charges are based on a person doing something that is only considered illegal because they are pregnant. “For example, most states do not criminalize drug use — they criminalize drug possession,” Sussman explains. “But we expect more pregnant people who use drugs to be charged with things like child abuse now.”
In other instances, people who attempted suicide while they were pregnant have faced murder and attempted feticide charges. “Attempting suicide is not a crime,” Sussman explains. “But if you’re pregnant, all of a sudden it’s been converted into an illegal act. Again, it’s this idea that embryos or fetuses — or however a state defines it — are their own unique beings, and therefore, can be victims of crime.”
Navigating the New Jane Crow in Post-Roe America
Although anyone with the capacity for pregnancy can face criminal charges under these laws, people of color — Black women, in particular — have been, and in all likelihood, will continue to be targeted at disproportionately higher rates than their white counterparts. This is one aspect of what Goodwin calls the “new Jane Crow.”
The “old Jane Crow,” she explains, refers to the late-19th and mid-20th century constraints placed on women of color — like being denied the right to vote, or use or certain public parks — that rendered them second-class citizens. Those who challenged the restrictive policies were met with excessive punishment meant to deter others from doing the same, in order to maintain the status quo of white supremacy.
For example, in the 1950s and 1960s, the government introduced programs offering assistance to white families who were struggling financially, but refused to do the same for people of color. “When Black women demanded access to the same kinds of government services and resources, it turned punitive,” says Goodwin.
Sometimes, the punishment came in the form of what civil rights activist Fannie Lou Hamer dubbed the “Mississippi appendectomy”: in which Black women and girls as young as 12 were coercively sterilized, often by government-funded doctors. In recent decades, the proliferation of the criminalization of pregnancy using laws intended to target pregnant people of color harkens back to similarly punitive policies of the old Jane Crow-era.
“The new Jane Crow isn’t much different, particularly if you look at the places where the vestiges of slavery still remain,” Goodwin explains. “When we look at these states that have been prolific in their anti-abortion legislating, we also see extraordinarily high rates of maternal mortality and morbidity for Black and Brown women.”
According to data from the Centers for Disease Control and Prevention (CDC), Black women in the United States have a maternal mortality rate three times higher than white women. That racial gap is even wider in states like Louisiana, where “four Black mothers die for every white mother, and two Black babies die for every one white baby,” the state’s Department of Health reports.
“Once we look at the figures in these anti-abortion states, we see what a mess their legislators have made,” Goodwin explains, “and how horrific it is that Black women are dying because they’re being coerced into continuing pregnancies.”
An Uncertain Future
Following Regina McKnight’s 2001 homicide conviction, the NAPW, along with more than 20 other organizations, submitted an amicus brief to the South Carolina Supreme Court, outlining why the decision set such a dangerous precedent — including that it left the door open for pregnant people who are over the age of 35, use certain legal medications, or work somewhere with hazardous materials, to face similiar charges if they experience miscarriages or stillbirths.
Now that the reversal of Roe v. Wade has removed the federal-level right to abortion and essentially given states carte blanche to make their own laws regulating the medical procedure, states may also take the opportunity to enact additional legislation intended to exert more control over other aspects of reproduction, including pregnancy. This could (and likely will) result in further criminalization of pregnant people — especially those of color — for doing anything that is perceived as putting their fetus at risk.
And the consequences of the criminalization of pregnancy extend beyond incarceration. It perpetuates the racist and classist notion of “fit” and “unfit” parents, and who gets to determine who fits in each category. It can involve using civil statutes and child welfare proceedings to surveil pregnant people, or strip them of their parental rights if their behavior is deemed risky for their fetus.
There are also implications on maternal and fetal health. In some cases, the fear of being investigated and prosecuted is enough to prompt pregnant people to avoid seeking prenatal care and other crucial health services. This is especially true for people of color, undocumented immigrants, and those with families of mixed immigration status, who Rodríguez says are often unable to access necessary healthcare because they risk being detained and deported.
“Detention means the potential for people to be separated from their families, and that’s something that a lot of people are not willing to go through,” Rodríguez tells Rolling Stone. “The fact that folks face the choice between getting the care that they need, and the potential to be separated from their families is horrific.”
In other instances, pregnant people are forced to undergo medical procedures — often Cesarean sections — without their consent, in what amounts to another type of punishment and effect of criminalization that Sussman says is “exceedingly underreported.”
For decades, the criminalization of pregnancy has been ignored because the pregnant people these policies and practices target are overwhelmingly low-income and drug-using, and disproportionately Black and Brown — groups that have been left out of most mainstream reproductive rights and anti-choice movements, which tend to be organized by and in support of middle-class white women.
“People have become so numb to the policing of Black and Brown women that it’s taken for granted,” Goodwin says. “We’re so used to Black pain in this country, that the normal legal state of affairs is, in fact, Black suffering. With the new Jane Crow, we’re seeing the recentering of an old standard of affairs. This is not a country that has ever practiced empathy towards the lives of Black women.”
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