EXECUTIVE SUMMARY
Reproductive health lawyers nationwide are trying to help women maintain access to abortion and contraception, but the appeals and lawsuits are unending.
- States are trying to eliminate Medicaid funding from Planned Parenthood. They also are arresting women based on perceived behavior during pregnancy.
- The concept of fetal personhood is fueling a rise in arrests and investigations of people who are pregnant or just saw a pregnancy end.
- Alabama, South Carolina, and Tennessee are the states with the greatest number of arrests of pregnant women.
The legal land mines surrounding abortion bans and overzealous police and prosecutors have reached the point where one Alabama woman was arrested for exposing her fetus to drugs. But she was not pregnant, and the police never bothered to check.1
Lawyers committed to reproductive health causes have filed lawsuits to maintain people’s access to contraception, reproductive healthcare, and abortion care.
Pregnant women, women who had miscarriages, women who had abortions, people who offered help or advice to someone who had an abortion, and providers who work in reproductive health and maternity care all need legal help. Lawyers dedicated to reproductive justice have helped defend them from criminal or civil actions or have filed lawsuits against states and hospitals.
Some of the most famous lawsuits were filed on behalf of women who experienced pregnancy medical crises and were denied abortion care in their states. (For more information, see story on reproductive rights lawsuits in this issue.) Other cases involve women who were arrested for their behavior during pregnancy or after they miscarried or gave birth.
What all these have in common is that local law enforcement, prosecutors, state attorneys general, and legislators are doing everything they can to deny women reproductive autonomy and privacy during their pregnancies. A relatively small cadre of local lawyers and legal organizations is on the front lines, defending their rights.
Most cases of women arrested because of their pregnancies involve allegations of drug use during pregnancy. Most of the arrests are of low-income women. Black women are disproportionately targeted by law enforcement, according to data collected by Pregnancy Justice, a national nonprofit group that works to prevent pregnancy arrests.2
Those cases were accelerating before the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, and they are worsening now that women and physicians are not protected legally by Roe v. Wade.
Representing women, physicians, and reproductive health organizations to challenge onerous state laws involving reproductive care access requires passion and patience. It also requires perseverance as some states file never-ending appeals and challenges.
For example, one of the most significant reproductive health lawsuits in South Carolina involved Julie Edwards, a Medicaid participant who was denied access to Planned Parenthood contraceptive and reproductive health services paid for by Medicaid. The lawsuit was Planned Parenthood South Atlantic and Julie Edwards v. Joshua Baker and South Carolina Department of Health and Human Services.3 In this case, the state tried to eliminate all Medicaid funding for Planned Parenthood in South Carolina, says M. Malissa Burnette, Esq., a partner and co-founder of Burnette Shutt McDaniel of Columbia, SC.
“We won that case, although they appealed it twice. [The state] tried to get the Supreme Court to take it, and the court denied [certiorari],” Burnette says. “They continue to fight that battle, and they appeal everything we do with this case. It’s been going on since 2018. They just won’t quit.”
The state agency wants to eliminate all access to Planned Parenthood’s contraceptive care and reproductive care for low-income women on Medicaid. “Medicaid does not fund abortions, but [with] this lawsuit, it gets people into Planned Parenthood, where they can receive healthcare. The state’s whole goal is to keep people from getting near Planned Parenthood,” Burnette says. (For more information, see the story in this issue about the South Carolina and Texas efforts to block contraceptive care and abortions.)
Criminalization of Pregnancy
Legal work has a lot of ground to cover. One area that often is forgotten involves the criminalization of pregnancy, which results in about 100 defense cases a year in the United States. Two-thirds of them involve people who gave birth to healthy babies, says Dana Sussman, JD, MPH, the deputy executive director of Pregnancy Justice in New York City.
Pregnancy criminalization was increasing in the years leading up to the overturn of Roe v. Wade in June 2022. Fetal personhood rhetoric and laws have helped fuel its rise, according to a new report, titled, “The Rise of Pregnancy Criminalization: A Pregnancy Justice Report.”2 (For more information, see the story in this issue on fetal personhood laws and risks they pose to women and providers.) This concept has gained steam and places all pregnant people at risk of arrest.
“This radical notion, which enshrines the rights of fertilized eggs, embryos, and fetuses into our legal and political systems, has far-reaching implications. This report found that over three-quarters (76.9%) of the cases of pregnancy criminalization occurred in a small number of states that expanded the definitions of child abuse to include fetuses, fertilized eggs, and embryos,” the report authors stated.2
“Our research shows it’s more common than people think it is,” Sussman says. “They’re charged for neglect or endangerment of a fetus, alleged substance use — including legal substances that were prescribed, or illicit substances — and even having something you ingested cause a positive on a tox screen.”
Pregnant women have been charged after they took an over-the-counter medication or ate something that triggered a positive finding on a toxicology test. For example, in Oklahoma, a woman has filed a motion with the Oklahoma Supreme Court to stop prosecutors in the state from criminally charging women who use medical marijuana while pregnant. Dozens of women have been charged for using medical marijuana while pregnant, despite it being legal in Oklahoma.4
Brittany Gunsolus, 27, used marijuana edibles and topical creams during her pregnancy, under the supervision of a physician. Gunsolus gave birth to a healthy baby in 2020, and the infant tested positive for marijuana. Child welfare workers closed an investigation after finding her home to be safe and loving, but the Comanche County District Attorney still charged Gunsolus with felony child neglect in May 2021.4
Gunsolus’ attorneys argued she cannot be prosecuted for using an illegal drug during pregnancy because medical marijuana is the same as any other legal medication under Oklahoma law. The prosecutor argued that Gunsolus broke the law because her fetus did not have its own, separate state license to use medical marijuana. Pregnancy Justice is providing legal support for this case.
“The stigma of substance use in pregnancy is acutely common,” Sussman says. “Even on that front, we see people understanding that if you can be charged with a crime for endangering your own fetus, then the next step is you’re charged for having an abortion. All of this comes back to fetal personhood.”
The second-largest proportion of women arrested for pregnancy-related behavior involves pregnancy loss cases, Sussman says. “Women are charged with murder, manslaughter, or fetal homicide for allegedly causing the loss, and it’s usually not through a self-managed abortion,” she explains. “It’s for something they did during their pregnancy that caused the loss, even though medical science doesn’t back it up.”
There were 1,396 criminal arrests of 1,379 people between Jan. 1, 2006, and June 23, 2022, the day before the Dobbs decision. By contrast, there were 413 criminal arrests between 1973 and Dec. 31, 2005. The five states with the most arrests of pregnant people include Alabama with 46.5% of all arrests of pregnant people, South Carolina with 13%, Tennessee with 9.4%, Oklahoma with 8.1%, and Mississippi with 2.6%. All those states except Mississippi had judicial decisions that expanded the definition of “child” to include fetuses in their criminal laws or had a law in place that explicitly criminalized the pregnant person if the newborn was born exposed to a drug.2
A particularly egregious example of overzealous law enforcement involves Marshae Jones, who was five months pregnant when she was shot in the stomach. Her fetus did not survive. Jones was charged with manslaughter by the Jefferson County Sheriff’s Office in Alabama because police said she started the fight that led to the shooting and she “failed to remove herself from harm’s way.”5
“The idea is that your behavior in getting into a verbal argument is unbecoming of a pregnant person, and [since] you put yourself and your fetus at risk, ‘I’m going to charge you with a crime for it,’” Sussman says.
These types of cases are particularly troubling and could involve the arrest of pregnant victims of all sorts of situations, including crossing the street while pregnant, working at a job with dangerous risks, attending a concert, staying with an abusive spouse, and car crash injuries.
Pregnancy Justice has worked on cases involving those kinds of charges and will draw public attention to them when it can be helpful to the victim.
“One strategy is to make sure even within the community in which charges are being brought, to show how a local prosecutor is using their resources,” Sussman adds.
REFERENCES
- Bartov SL. A woman was jailed for ‘endangering’ her fetus — she wasn’t even pregnant. Newsweek. Nov. 22, 2022.
- Kavattur PS, Frazer S, El-Shafei A, et al. The Rise of Pregnancy Criminalization: A Pregnancy Justice Report. Pregnancy Justice. September 2023.
- Planned Parenthood South Atlantic and Julie Edwards vs. Joshua Baker, director, South Carolina Department of Health and Human Services. Filed July 27, 2018.
- Bailey B. An Oklahoma mom’s court challenge seeks to end charges for pregnant women who use medical marijuana. The Frontier. Dec. 14, 2023.
- Mervosh S. Alabama woman who was shot while pregnant is charged in fetus’s death. The New York Times. June 27, 2019.
Reproductive health lawyers nationwide are trying to help women maintain access to abortion and contraception, but the appeals and lawsuits are unending. Lawyers committed to reproductive health causes have filed lawsuits to maintain people’s access to contraception, reproductive healthcare, and abortion care.
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