Criminalizing Pregnant People: A Brief Retrospective

When pregnant people's bodies are policed, the most vulnerable and marginalized among us suffer disproportionately.

I had a vivid nightmare last night. My daughter and I were in a car, in the back seat, with her in the infant bucket seat she hasn’t used for over a year now. The car began to speed backwards, and I couldn’t reach the handbrake. Amazingly, however, we emerged from this unharmed. The road we backed into was devoid of traffic. 

I think this is an apt if unsubtle metaphor for our current situation. The Supreme Court’s disastrous abortion decision is going to affect many, many women—white, cis, het, middle-class women like me, and our children, very much included. But we are still free from some of the most nightmarish intersections constituted by racism, classism, ableism, homophobia, and transphobia, together with gender. (Fatphobia is, in my case, another story, as someone right on the cusp of a weight which renders Plan B less effective.)

People sometimes understandably mistake the idea of intersectionality for a spatio-mathematical one, as in a Venn diagram. But it was originally intended by the legal theorist Kimberlé Crenshaw to bring to mind a traffic intersection. In a classic 1989 paper, she wrote:

The point is that Black women can experience discrimination in any number of ways… Consider an analogy to traffic in an intersection, coming and going in all four directions. Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another. If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them.

Similarly, if a Black woman is harmed, her injury could result from sex discrimination, race discrimination, or a combination of the two—as in the phenomenon of misogynoir, an important concept coined and developed by Moya Bailey and her collaborator, Trudy @thetrudz, for the unique intersection of anti-Black racism and misogyny faced by Black women in America.

More broadly, the intersections between gender and other oppressive systems work against pregnant people of color in general, and Black and Indigenous ones, as well as poor folks, in particular. It’s worth remembering this as some are bemoaning a return to the pre-Roe era, and others fear an even worse future. Both of these views, while capturing something important, also miss another vital fact to bear in mind here: criminalizing pregnancy has long been a reality for the most marginalized pregnant people in this country.

The work of the legal scholars and advocates Lynn M. Paltrow and Jeanne Flavin helps to bring this out. In a 2013 paper, “Arrests and Forced Interventions on Pregnant Women in the United States, 1973–2005: Implications for Women’s Legal Status and Public Health,” they analyzed 413 cases of what they term “reproductive oppression,” in which pregnancy was a necessary condition of someone’s physical liberty being curtailed via the legal system. This occurred via arrests, incarceration, increases in jail and prison time, detention in hospitals, mental institutions, and treatment programs, and forced medical interventions. The researchers also observed that this figure, alarming as it was, was almost certainly a significant undercount. So criminalizing pregnancy was not so uncommon even before Dobbs, especially—as they note—among poor and racially oppressed women.

One of the five cases they examine in detail, that of Regina McKnight, is in many ways typical. McKnight is an African-American woman from South Carolina, who suffered from an unexpected stillbirth when she was just twenty-one years old. This was the result of an infection, as evidence would show later. But, at the time, the state blamed McKnight’s cocaine use. The jury pronounced her guilty of homicide—after just fifteen minutes of deliberation—and McKnight was sentenced to twelve years in prison. Though her conviction was eventually vacated, she spent some eight years incarcerated.

In other cases, pregnant people were forced to undergo C-sections they didn’t want (and may very well not have needed, given their successful vaginal births later), consigned to medical detention (without compelling evidence their drug use put the fetus at significant risk), and forced to labor in shackles—an especially cruel expression of the state’s ongoing role in policing, surveilling, and controlling the bodies of pregnant people.

Make no mistake: when pregnant bodies are criminalized, it is the most marginalized women who primarily suffer. As Paltrow and Flavin write:

Overwhelmingly, and regardless of race, women in our study were economically disadvantaged, indicated by the fact that 71 percent qualified for indigent defense. Of the 368 women for whom information on race was available, 59 percent were women of color, including African Americans, Hispanic American/Latinas, Native Americans, and Asian/Pacific Islanders; 52 percent were African American. African American women in particular are overrepresented in our study, but this is especially true in the South. Nearly three-fourths of cases brought against African Americans originated in the South, compared with only half of the cases involving white women.

In some states, this racial disparity was even more marked. About 75% of Florida’s cases of such reproductive oppression were enacted against African-American women, despite their comprising only about 15% of the state’s population. Meanwhile, though whites comprised about 81% of Floridians, they were subject to just 22% of such prosecutions.

There are further alarming facets of their findings (which I encourage you to read in full):

·       The fact that some people with a mental health diagnosis or history of mental illness had this weaponized against them;

·       The fact that, in many cases, a woman was trying to get either medical care or help in dealing with an abusive partner and was then subject to state surveillance and coercion—sometimes via the medical providers who violated her confidentiality. So “far from being a bulwark against outside intrusion and protecting patient privacy and confidentiality,” the researchers found that “health care and other ‘helping’ professionals are sometimes the people gathering information from pregnant women and new mothers and disclosing it to police, prosecutors, and court officials.” In some cases, this was even part of a coordinated effort to “crack down” on pregnant people who showed signs of illicit drug use;

·       The fact that certain drugs targeted by the notoriously racist ‘war on drugs,’ such as cocaine, were policed in an especially draconian way, despite the evidence that they aren’t typically more harmful to a developing fetus than far more widely accepted (and legal) drugs, such as nicotine;

·       The fact that certain behaviors, while perfectly legal—like smoking during pregnancy—were used against a pregnant person in cases of reproductive oppression enacted against them.

The researchers also note that “although every pregnancy in this study involved a man, the father or the woman’s male partner was mentioned in only 23% of cases. Information available in approximately one in ten cases mentioned violence against the pregnant woman.”

In one particularly heartbreaking case, another young African-American woman was charged with homicide by child abuse after experiencing a stillbirth. Yes, she took a small amount of cocaine; but she had also taken eight Tylenol, washed down with alcohol, in an attempt to end her own life on her twenty-third birthday.

She needed help, not policing.

All of this is especially notable because, during the period of the authors’ study, “no state legislature has ever passed a law making it a crime for a woman to go to term in spite of a drug problem, nor has any state passed a law that would make women liable for the outcome of their pregnancy. Similarly, no state legislature has amended its criminal laws to make its child abuse laws applicable to pregnant women.” Yet laws never intended to punish pregnant people were repurposed for that end by overzealous police, prosecutors, judges, and juries.

Recently, we have also seen laws for feticide and fetal homicide—primarily intended to protect women and their fetuses from domestic and other forms of violence—similarly repurposed. And again, it is women of color who have been the primary targets. It’s no accident that the first two women to be charged with feticide in Mike Pence’s Indiana, Bei Bei Shuai and Purvi Patel, were Asian and Asian-American (respectively). Patel was sentenced to twenty years in prison, and served one year and four months, until her appeal to the Indiana Supreme Court was ultimately successful. Her crime? Self-inducing an abortion between twenty-three and twenty-four weeks’ gestation, a fetal age at which abortion is still legal in some states.

The writing is on the wall. As Paltrow and Flavin warn:

Far from being a scare tactic, our findings confirm that if passed, personhood measures not only would provide a basis for recriminalizing abortion, they would also provide grounds for depriving all pregnant women of their liberty. Our findings also make clear that far more than the right to decide to have an abortion is at stake if such laws pass. All pregnant women, not just those who try to end a pregnancy, will face the possibility of arrest, detention, and forced intervention as well as threats to and actual loss of a wide range of rights associated with constitutional personhood.

In other words, start to recognize a fetus as a full person under the law, and you are well on your way to criminalizing pregnant people, the most marginalized ones especially. This cruelty is the point, of course. And although we are currently witnessing the tides turning against anyone who can get pregnant, there has long been a powerful undertow that has taken down some of the most vulnerable amongst us.