Emerging Data Shows Pregnant People Face a Greater Risk of Prosecution Without Roe — And Not Just For Abortion

by Megan Burbank

In the days after the U.S. Supreme Court rolled back national protections for abortion access in Dobbs v. Jackson Women's Health last year, I heard panicky speculation about what would come next: criminalizing people for their pregnancy outcomes. I have bad news, I thought grimly. That was already happening. It's not going to be new. It's going to be worse.

This is the refrain of any person who covers reproductive health policy — we are fun at parties, I promise! — but as we begin to piece together the fallout from losing Roe, it's more important than ever to contextualize emerging data within this ongoing history. So, as more and more reports on abortion access come out, I'm paying attention and connecting the dots between our country's long-standing criminalization of pregnancy and poverty and its nexus with institutional racism and white supremacy. Because we can't solve problems if we can't see them with any clarity.

Almost a year and a half after the Dobbs decision went into effect, here are a few recent discoveries that are making the way forward a little clearer.

Incarcerated People Have Always Faced Barriers to Abortion Care. Dobbs Will Make It Worse

The overlap between carceralism, racism, and limitations on reproductive health care is a long-standing, distinctly American problem dating back to white supremacist practices like forced sterilization and the war on drugs, which disproportionately impacted communities of color and preceded the Dobbs decision by decades. So when the constitutional right to abortion was struck down by the Supreme Court last year, it seemed likely existing barriers to reproductive health care for incarcerated pregnant people — which are already complicated — would become even more entrenched.

Emerging research shows this is exactly what's happening. A new analysis from researchers at Johns Hopkins used 2021 Bureau of Justice Statistics data and previous studies to estimate that of the 638 pregnant people currently incarcerated each year, 110 are likely to need an abortion, about half of them in states where abortion is now banned or tightly controlled. This led the researchers to conclude that "Under Dobbs, many incarcerated pregnant people will be forced to continue unwanted pregnancies to term."

Generally, when reproductive health care and the carceral state collide, it tends to cause the most harm to marginalized communities who are already disproportionately targeted by the legal system. The Johns-Hopkins researchers report: "The more than 165,000 women incarcerated in the United States are disproportionately women of color, with Black women incarcerated at twice the rate of White women, a result of policies that have overpoliced, criminalized, and devalued the reproductive well-being of people of color."

When we talk about the impact Dobbs is having, it's easy to frame it as an on/off switch — one day we had access; the next it was gone — but this study shows that incarcerated pregnant people were already facing major barriers to getting abortion care before the decision. One study cited found that in one year alone, out of 816 pregnant people who were incarcerated, only 1.3% terminated their pregnancies; in the general population, that number was much higher: 21%.

Criminalizing Pregnancy Outcomes of All Kinds — Not Just Abortion — Was Already on the Rise Before Dobbs

In the decades before Dobbs, the fetal personhood movement — an effort to give fetuses and embryos the same rights as human adults — was on the rise. In states with fetal personhood legislation, it's not unusual to see cases where pregnancy loss or drug use during pregnancy are prosecuted as if they're acts of homicide. For years, Pregnancy Justice, a legal advocacy group that fights for the rights of pregnant people, has been monitoring criminalizations like these. This year, they released a new report on pregnancy criminalizations that occurred between Jan. 1, 2006, and June 23, 2022 — the day Dobbs was decided.

During that time, law enforcement made 1,396 arrests related to pregnancy criminalization cases, three of them in Washington. Of these cases, far more involved pregnancy outcomes like birth and miscarriage than abortion. And, the researchers noted, "Through an alarming combination of carceral approaches to substance use and the legal expansion of the concept of fetal personhood, state actors have increasingly penalized pregnant people for actions that would not have been criminalized but for their pregnancies." A quarter of the cases involved allegations of legal substance use.

Increasing efforts to criminalize abortion will likely exacerbate the ongoing problem of prosecuting pregnancy. "The Dobbs ruling will further accelerate an existing crisis, putting anyone who is pregnant or has the capacity to become pregnant at even greater risk of arrest, prosecution, and conviction," conclude the Pregnancy Justice researchers. "Understanding this phenomenon—including who is most affected, how, and under what pretense— will be essential to fighting for pregnant people's liberties as we enter the post-Dobbs era."

Potential Solutions Must Center Reproductive Justice and Impacts on Indigenous Communities

Last spring, University of Chicago researcher Autumn Asher BlackDeer released the findings from a survey gauging attitudes on abortion among 132 respondents from American Indian and Alaska Native communities.

"Historically, Native women faced forced sterilization and infant separation as tools of settler colonialism," writes Asher BlackDeer in the introduction to "Towards an Indigenous Reproductive Justice: Examining Attitudes on Abortion among American Indian and Alaska Native Communities." "These issues have only shifted over time and now manifest through unequal access to healthcare, adverse maternal health outcomes, reproductive coercion, and cultural erasure (Asher BlackDeer 2022). Social inequities such as poor legal response, rigid gender norms, and anti-Native racism and discrimination all converge to further limit reproductive justice for Native women (Scheeringa & Zeanah 1995)."

The study aimed to track attitudes toward abortion within this context, and found that while historically most Native voters have supported Democratic candidates, when broken down by age group, there was much more variation in political affiliation, with Gen X, Gen Z, and millennial respondents more likely to identify as Independents.

Without the protection of Roe v. Wade, wrote Asher BlackDeer, "it remains to be seen how Native communities will once again navigate barriers imposed by the failures of the federal government … Indigenous communities have a demonstrated history of protecting and advocating for our tribal sovereignty and self-determination. While the Supreme Court may have struck down federal abortion protections, the movement for Indigenous reproductive justice continues."

Editors' Note: This op-ed was updated with a headline that more accurately conveys the topic discussed.

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