OPINION | Pregnancy and Poverty Have Always Been Criminalized

by Megan Burbank

In 2014, a 16-year-old girl named Rennie Gibbs was indicted for "depraved heart murder" by a Mississippi grand jury after giving birth to a baby who died. As ProPublica's Nina Martin reported contemporaneously, the baby's likely cause of death was a nuchal cord, when the umbilical cord wraps around an infant's neck. But because Gibbs had a history of drug use, an overzealous medical examiner blamed the baby's death on Gibbs herself.

That same year, in Wisconsin, Tamara Loertscher was incarcerated while pregnant under the state's Unborn Child Protection Act after disclosing prior drug use while seeking prenatal care. As I found when I reported on a documentary released on Loertscher's ordeal in 2020, Loertscher wasn't appointed an attorney, but the fetus she carried was. Loertscher would go on to give birth to a baby boy, but being jailed prevented her from the prenatal care she'd been trying to access when she divulged her drug use in the first place. She thought disclosing this information to her clinician was the right thing to do. It arguably put her pregnancy in more jeopardy than her drug use had.

In 2012, a woman named Bei Bei Shuai was charged in Indiana with murder after attempting suicide while pregnant. And in 2019, a pregnant Alabama woman named Marshae Jones was shot in the stomach and subsequently miscarried. Police tried to charge her with manslaughter.

I'm going to stop there.

But stories like these are not unusual. Whether they were unjustly targeted by fetal personhood laws — which confer more rights to fetuses than to pregnant people — or punished for pregnancy outcomes no one would wish for, pregnant people all too often find themselves at the cruel nexus of systemic racism, policing, and deep-seated misogyny, with few options and little support. And as the timing of these cases show, all of these things were already happening long before Roe v. Wade was overturned.

For the past decade, the right-wing movement to establish fetal personhood has been gaining momentum, criminalizing pregnancy and poverty in the process. These stories haven't gone uncovered: Journalists like Martin have written about them with careful witnessing. But they haven't received wide recognition until now.

When Roe was overturned, I heard speculation among understandably furious friends and family that pregnant people would end up in jail because of it. But they already were. None of this is new. Still, given the preponderance of recent reporting on similar cases focused on abortion in the past year, it's easy to take away that impression.

A lot of these stories are well-reported, and they should absolutely be told. When people are prosecuted for self-managed abortion or miscarriage, it's a matter of public import that their stories be covered. But the sheer volume of stories like this currently circulating carry the implied subtext that these kinds of prosecutions are new, or perhaps a byproduct of Roe's reversal, and that couldn't be further from the truth.

Especially in marginalized communities, criminalization tied to pregnancy and parenthood have been happening for a very long time — one could argue that the practice goes all the way back to American chattel slavery, which, as reported in Dorothy Roberts' groundbreaking, essential text Killing the Black Body, is the origin of the artificial separation of pregnant person and fetus that forms the basis of so many anti-abortion policies to this day.

Whether we're talking about what happened to Rennie Gibbs, Tamara Loertscher, or numerous others like them, their stories matter. Roe's reversal didn't suddenly put pregnant people in jail. It just means more people are paying attention when it happens. That's a good thing. But it sets up the conditions to erase the history of this practice — and the experiences of the people most impacted by it.

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