For decades, pregnant people have been arrested, charged with various crimes and jailed for their pregnancy outcomes.
A 27-year-old white woman from Tennessee attempted suicide while pregnant in 1986. She survived, but the fetus was stillborn. She was arrested, charged with criminal abortion and held on a $5,000 bond. She pleaded not guilty for reasons of insanity.
In 1999, Regina McKnight, a 22-year-old Black woman from South Carolina, gave birth to a five-pound stillborn baby. McKnight was drug tested after the birth and arrested in the hospital for “homicide by child abuse” because she tested positive for cocaine. Although it was not conclusive that the cause of the stillbirth was due to her drug use, McKnight was sentenced to 20 years in prison after the jury deliberated for only 15 minutes.
Gabriela Flores, a 22-year-old woman from Mexico, managed her own abortion using pills in 2004 in South Carolina because she couldn’t afford a fourth child or the $700 in-clinic abortion on the $1.50 an hour she earned picking lettuce. Her neighbor found out about her abortion and called the cops, who initially wanted to charge Flores with homicide and seek the death penalty. Flores eventually pleaded guilty to an illegal abortion and spent a total of seven months in jail.
These are just a few of the stories included in Grace E. Howard’s new book, “The Pregnancy Police: Conceiving Crime, Arresting Personhood,” in which she analyzes 1,116 pregnancy-related arrests that happened between 1973 and 2022 in Tennessee, South Carolina and Alabama. Although the cases vary from self-managed abortion to substance use and miscarriage, each person was arrested for crimes against their own pregnancy.
“The criminal prosecution of pregnant people for crimes against the fertilized eggs, embryos, and fetuses they carry relies on a legal understanding that pregnant people occupy a different, lower space in the United States’ system of law,” Howard, who uses she/they pronouns, writes in her book.
Howard, an associate professor of justice studies at San Jose State University, traces pregnancy-related prosecutions throughout history, specifically highlighting the intersections between drug use, race and class.
“We’ve been taking rights away from folks because of their pregnancies, but we haven’t been naming it,” they told HuffPost. “What I try to do in the book is to trace out the places where pregnancy has been considered an exception to the norms.”
HuffPost spoke with Howard by phoneabout pregnancy criminalization throughout history, and how the threat is likely to increase in a post-Roe world.
Who are the “pregnancy police” included in your book title?
They don’t exist as an actual department or agency. I hope they never will. Right now, the pregnancy police are made up of people in a bunch of different networks and agencies. I would argue that the pregnancy police even exist in our own minds. Sometimes we police one another, just as friends or family or random people who decide to weigh in. But the pregnancy police are mainly health care providers: 75% of these cases go to law enforcement because health care providers make a report. They’re also social workers, child protective service agents, law enforcement, prosecutors, judges, and sometimes it’s our neighbors telling on us, sometimes it’s our boyfriend telling on us.
It really could be almost anyone. To me, that speaks to just how pervasive it is to socially police the behaviors of folks who are pregnant. Strangers who come up and say, “That’s decaf, isn’t it?” when you’re drinking a coffee. Or people who put their hand on your belly without asking first. Society feels a sense of ownership and entitlement over pregnant bodies.
We’ve been seeing more and more right-wing rhetoric around fetal personhood — defining a fertilized egg, embryo or fetus as a person. Some states have written personhood into abortion bans post-Dobbs, while others are threatening fertility treatments like in vitro fertilization because of fetal personhood ideology.
How does fetal personhood play into pregnancy criminalization?
Currently, fetal personhood seems to be the primary motivating factor or at least the justification for criminalizing pregnancy. This idea that we need to protect these unborn children from their mothers who don’t love them, who won’t take care of them, who won’t do right by them — fetal personhood is a big part of that.
Now that Roe v. Wade is gone and there is no federal protection that maintains a pregnant person’s rights before viability [around 24 weeks of pregnancy], it’s so much easier to put fetal personhood in the law when you don’t have to worry about viability being the determining factor.
You looked at 1,116 arrests of pregnant people for crimes against embryos and fetuses in South Carolina, Alabama and Tennessee between 1973 and 2022. Are there any stories that really stick with you to this day?
There’s the Marshae Jones case, where she was shot in the abdomen when she was pregnant. Marshae was going to be charged with manslaughter but the shooter wasn’t. National outrage eventually killed that case. But I am haunted by that case. I can’t help but think about what the precedent they were trying to set in that case could mean for victims of intimate partner violence.
“This idea that we need to protect these unborn children from their mothers who don’t love them, who won’t take care of them, who won’t do right by them — fetal personhood is a big part of that.”
Abusers use pregnancy to control you, keep you in a relationship. They use children to create a legal bond, even after the relationship ends. So the idea that your abuser can beat you up and you get in trouble for it because you didn’t protect your pregnancy, and now you have even fewer options, because you’re charged with a crime? Terrifying.
A large part of your book focuses on the criminalization of pregnant people for drug use during their pregnancies.
Yes, most of the cases in my book do involve drugs. I know this will be hard for some people, the idea of a pregnant person using drugs. We’ve also been taught some very misleading, if not completely false things, about what certain substances will do to a pregnancy.
But I feel compelled to carve out the distinction I’m making: I’m not saying that pregnant women have special rights to do drugs. I’m saying that people who aren’t pregnant don’t get charged with crimes for testing positive for drugs and pregnant people do – and that is a distinction.
If we’re arresting you for possession or sales or manufacturing, that’s something we do all the time. We’re not charging pregnant people with those things, or at least not those things exclusively. We’re charging them with things like child abuse, homicide, delivery of drugs to a minor, in some cases manslaughter. Many of these are felonies. There are people spending decades in prison because of these kinds of cases.
Can you talk to me about how substance use has been weaponized against pregnant people?
We’ve been weird about substances for a long time. That’s something I learned while reading the history and literature for this book. Our concerns about substances are almost always tied to other, broader social concerns. It’s never just: This is bad for you. It’s almost always: This is bad for you because these people are the ones doing it.
A wing of the prohibition of alcohol movement was doing it because slaves had been emancipated and people believed they were going to get drunk and rape white women. That has been true in our modern drug crisis as well. A lot of people are familiar with how the war on drugs and the focus on crack, in particular, was a big part of mass incarceration in the United States.
A story that has been less explored — though there are wonderful feminist academics who have looked at it — is how much of the crack panic was about pregnant people and babies. It really was understood as these uncaring women who are irresponsible and selfish are birthing hordes of monsters that are going to ruin the United States. The way they described it with crack was that these children would be inherently violent, they wouldn’t be able to hold down a job, they’d be antisocial.
It was interesting to read about the link between pregnancy criminalization and, as you wrote, the three “periods of radicalized drug panic”: South Carolina’s crack cocaine crisis, Alabama’s methamphetamine crisis and Tennessee’s opioid crisis.
Right. After the crack crisis, it happened all over again in Alabama. During that time, they were really focused on meth. It was understood, at least in the Southeast, as a poor white trash drug. So, instead of poor Black inner-city people, now it’s poor white people in trailers. These babies were also described as they’re going to grow up and be psychotic and violent and cost a lot of money. And we [society] are going to have to pay for it because these selfish women won’t just love their babies enough to stop doing drugs.
Then we see it repeated again in Tennessee with opioids. The way that we’ve talked about opioids has been somewhat different from the way we’ve talked about other modern drug crises. Part of that is because so many of the people that are addicted to opioids are folks who got injured on the job and now they’re hooked to these pills that they initially got through a medical prescription. So we have sympathy because they’re white and employed and it started as a medical thing instead of a fun or social thing. That, somehow, makes it better or more moral.
Unfortunately, that understanding has not included pregnant folks. The talk about folks who are pregnant and use opioids is generally just as punitive, and the policy responses have been really punitive, too. It being considered a white working-class or middle-class drug hasn’t been enough to insulate the pregnant folks who are using it, too.
You include a great quote from professor and author Michele Goodwin — whose work you note has been instructive to your book — about how “the criminalization of poor, pregnant women of color was perceived as a race issue — something too remote for feminist discourse and activism.”
I love that Michele Goodwin quote. I’ve been thinking about it since the recent IVF case out of Alabama. There was so much national and international outrage — rightful outrage — that embryos are defined as extra-uterine children.
“There are 38 states that have laws in their criminal codes that define either fertilized eggs, embryos or fetuses as crime victims, potentially.”
That was an outrageous moment, and we should be angry. And also, most of those people have no idea that fertilized eggs, embryos and fetuses have been considered legal children in Alabama since 2013, really. Then there’s the question of: Why don’t they know that? Why didn’t they care then? Where was the outrage then?
To me, I can’t help but think it’s because of who can access IVF versus who is mostly getting arrested and put in jail. There’s not a lot of overlap there. Maybe if we [had] cared a little more then, we wouldn’t be where we are now.
How did decades of ignoring pregnancy criminalization impact today’s landscape, now that we’re in a post-Roe world?
There are 38 states that have laws in their criminal codes that define either fertilized eggs, embryos or fetuses as crime victims, potentially. It varies by state, but that’s a lot of states.
Most of these bills were, typically, created in response to a really awful murder case of a pregnant person. These laws almost never get into the meat of it, which is that people’s intimate partners are the ones who are doing the harm to them, and maybe we need to approach it from that aspect. But these are all white women who are victims, who are murdered or lose their pregnancies because they are attacked, and they want some kind of legal recognition of the pregnancy loss so the person who hurt them gets heightened charges.
So, 38 states have those laws, and in cases where we’ve had arrests in those states — which is all before Roe v. Wade was overturned — those arrests always happen after we recognize the fetus as a crime victim.
Here’s how it goes: We established the fetus as a crime victim because a white, respectable woman got attacked. Then a non-respectable woman does something bad and we use that protective law to punish that bad woman. It is so easy for a state court to turn the fetus as a crime victim of third-party harm into a fetus that is now a victim of an abortion provider or the person who is gestating it. States are exploring this right now.
Clarence Thomas pointed this out at the oral arguments for Dobbs. He didn’t name the case, but he referenced it. He asked, hey, if we’re allowed to punish women for using drugs during their pregnancy based on the idea that a fetus is a person, how in the hell is it legal for people to intentionally terminate their pregnancies?
And you know what? Fair. If we’re being consistent, that doesn’t make sense. For me, we should either say it out loud, that pregnant people aren’t going to have rights — and that’s how we’re doing it — or we need to make sure pregnant folks have rights.
So, do you think we’re on a path where more people will be criminalized for their pregnancy outcomes?
I think so, for a few reasons. Yes, more states are exploring criminalization now. Most recently, Texas Republicans saidthey’re possibly going to pursue the death penalty for people who get abortions.
We’re also seeing people taking greater legal risks to access abortion care. Because of the legal changes that have happened in states with abortion access, in particular, people are being put into positions where they are taking legal risks that they might not have had to before. You might have been able to go and get your first-trimester abortion in North Carolina, but now you have to order pills through the mail and hope you don’t get in trouble later. That is very scary to me.
This interview has been condensed and lightly edited for clarity.
