When the U.S. Supreme Court overturned Roe v. Wade in June 2022, a lot of news stories speculated on how prosecutors might start punishing women for seeking abortions — or even suffering miscarriages and stillbirths.
What most people didn’t realize is that this had already been happening, in states that used the concept of “fetal personhood” to punish poor women who were addicted to drugs.
The Frontier reported in January 2022 that a handful of district attorneys in Oklahoma had started prosecuting women for manslaughter and felony child neglect after they had miscarriages or stillbirths and tested positive for drugs.
We wanted to know why this was happening — and whether the same thing was occurring in other states. Marshall Project reporter Cary Aspinwall teamed up with Amy Yurkanin at AL.com and Brianna Bailey at The Frontier to figure it out.
There isn’t a national database that tracks prosecutions for pregnancy loss, so we built our own, searching hundreds of news articles, law review journals, court case filings and other public records to come up with a national tally.
The reporting team and Marshall Project data reporter Andrew Rodriguez Calderón found more than 50 women who had been prosecuted over the past two decades because they tested positive for drugs after a stillbirth or miscarriage. Alabama leads the nation in arrests of women who use drugs during pregnancy, often prosecuting them under the harshest possible criminal charges, with consequences as severe as those for murder, rape or kidnapping. Not far behind are Oklahoma and South Carolina; all three states even lock up women who test positive for drugs after giving birth to healthy babies.
These prosecutions disproportionately affect low-income women and women of color. Doctors caution that criminalizing drug use prevents pregnant people from seeking prenatal care for fear of being prosecuted.
The number of cases we found linked to meth harkens back to the legacy of the “crack babies” paranoia that targeted Black mothers in the ‘80s and ‘90s. Legal experts say cases like these will be more common with the increasing impact of “fetal personhood” laws in a post-Roe America.
In Oklahoma, Bailey found that pregnant women are being prosecuted for marijuana use, even when they have a medical license for it. At least 26 women have been charged with felony child neglect in Oklahoma since 2019 for using marijuana during their pregnancies, an investigation by The Frontier revealed. At least eight of those women had state medical marijuana licenses, which allow holders to legally purchase and use cannabis after a recommendation from a physician.
After our reporting, which was co-published with The Washington Post, charges were dropped against one woman and another got a new lawyer.
Our work with local news partners continues as we discover new ways the criminal legal system is punishing pregnant women.
