Report: Alabama led nation in criminalizing pregnant people after Dobbs

A new report says that nearly half of pregnant people who “faced criminal charges for conduct associated with pregnancy, pregnancy loss, or birth” after the U.S. Supreme Court struck down federal abortion protections came from Alabama. 

The report from Pregnancy Justice, a nonprofit based in New York City, estimates that there were at least 210 prosecutions related to conduct associated with pregnancy, pregnancy loss or birth nationwide in the first year after the ruling in Dobbs v. Jackson Women’s Health Organization. Of those, 104 came from Alabama.

Pregnancy Justice “protects and advances pregnant people’s bodily autonomy and rights by defending those who have been criminalized, advocating for proactive policy and legal change, and shifting the public narrative,” according to their website.

The 210 prosecutions are a high point, despite likely being an undercount, according to the report. The report said that 143 of the defendants are white, and the majority are low-income. 

The report said that the majority of the pregnancy-related charges alleged a form of child abuse, neglect or endangerment, with the majority alleging substance abuse. In 133 cases, substance abuse was the only offense alleged.

Five cases had allegations concerning abortion, and 22 cases involved a fetal or infant demise and allegations around conduct concerning pregnancy, pregnancy loss or birth. 191 of the 220 charges lacked a harm requirement.

There were 198 charges of child abuse/ neglect/ endangerment, nine cases of homicide, eight drug-related crimes, three “other,” one abortion-related crime and one abuse of a corpse.

“Dobbs also emboldened state legislatures, judges, anti-abortion activists, and prosecutors to develop ever more aggressive strategies to protect fetal ‘victims,’” the report said. “The movement to enshrine fetal rights takes many forms.”

Lourdes Rivera, president of Pregnancy Justice, said in a Tuesday Zoom interview that these attacks have been more under the radar.

“As we know, risky is very subjective,” she said. “It’s often very mired with stereotypes and sexism and  sometimes racism, and it’s really devoid of medical evidence, or sometimes contrary to medical standards of care, but, yet, people are being criminalized in this environment.”

Prosecutors in Alabama for decades have used a “chemical endangerment of a minor” statute to prosecute pregnant women, a practice the Alabama Supreme Court upheld in 2013. In February, the court ruled that parents of destroyed embryos could collect civil damages under an 1872 statute allowing parents to collect damages for the deaths of their children.

“A lot of what we see is because of the discretion of local prosecutors,” Rivera said. “And for some reason, I mean, I can’t be in the minds of these prosecutors, but they have decided to prioritize going after pregnant individuals under these chemical endangerment laws and child abuse and neglect laws.”

Rivera said that that reading embryos and fetuses into existing criminal laws is what is being used to criminalize pregnant people.

“The architecture has been built,” she said. “It’s being used right and I also think that, for the most part, because there’s support for abortion rights in public opinion, it’s politically difficult for prosecutors to use the specific abortion laws, or specific abortion laws to prosecute individual patients, right? But this mechanism already exists to allow them to do it under the radar.”

But pregnant people are also being prosecuted with a lack of prenatal care as “supposed evidence” for a crime being committed. The report cites 15 allegations of a lack of prenatal care.

“Some people don’t have access to care because abortion bans are creating maternal health care deserts, and some people don’t have the resources, or some people are afraid to go because of fear of being criminalized,” she said. “These are structural issues. They’re not individual moral failings.”

She said that the outcome of these prosecutions are that pregnant people are afraid to seek medical care and referenced the deaths of women from consequences of abortion bans reported by ProPublica in Georgia.

Rivera said that one of the leading causes of death for pregnant people is opioid abuse and fear of prosecution could discourage a person from seeking help.

“If you tell somebody, ‘If you go to the doctor, you’re going to get reported to the police,’ you’re not going to go or if people know that, if they go to the doctor and share health information, and the result is that they’re going to lose their their baby and their children, they’re not going to go and so this is the natural outcome of such a criminalized environment and the fear of being criminalized,” she said.

Jaylen Black, vice president of marketing and communications Planned Parenthood Southeast, said that she had not read the report in full but that it was “unsurprising.”

“We’ve always said that Alabama actually has the toughest abortion bans, and that’s because there our inability to be able to help patients or people in Alabama when they’re seeking this care,” she said. “So it’s in their state law that says that we can’t even help navigate people.”

Black said that the danger of abortion bans was known but that the opposition cannot deny facts or court rulings.

“This is no longer a hyperbole of, oh, this is ‘women might,’” she said. “’Oh, this could.’ No, this is happening. Women are getting prosecuted. Women are dying and women are in extremely dire situations because of the state laws, because of Roe v. Wade being overturned.”

This story was originally published by the Alabama Reflector