Last week, the organization Pregnancy Justice released a major report showing that criminal prosecutions based on conduct related to pregnancy spiked to record highs in the year after the Supreme Court reversed Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. In the 12 months between June 2022 and June 2023, the group found, more than 200 people faced charges related to pregnancy, pregnancy loss, abortion, or birth. The vast majority of these defendants were low-income, and many were people of color. They often faced charges related to substance use. In a huge majority of cases, prosecutors did not require proof that pregnant defendants’ behavior actually caused harm—only a “perceived risk of harm.” There is every reason to expect that this trend continued from June 2023 to the present—and may accelerate in the aftermath of the election, when elected officials will have less fear of a potential backlash.
A rise in pregnancy criminalization reflects the ascendancy of fetal personhood as the central objective of the anti-abortion movement, to be sure. But activists have disagreed about what it means to define embryos or fetuses as people—and how fetal rights should be enforced. The new trend in criminalization thus reflects not only the priority put on fetal personhood within the anti-abortion movement but also the rise of a particularly punitive idea of personhood, one that equates justice for the fetus with criminalization.
Fetal personhood often stands for the idea that the word person in a given law—and most often, in the 14th Amendment of the Constitution—applies from the moment an egg is fertilized. Promoting constitutional fetal personhood has been a central goal for the anti-abortion movement since the 1960s. Since the 1980s, the Republican National Platform has included a call for ratification of a fetal personhood amendment to the Constitution (this year, that language was omitted in favor of a coded reference to the idea that the Constitution already recognizes fetal personhood).
What’s new is not the interest in fetal personhood but the conviction of abortion opponents that fetal rights are achievable, even at the national level. As Pregnancy Justice has documented, the criminalization of pregnancy began well before Dobbs. In the 1980s and 1990s, as Dorothy Roberts has shown, pregnant drug users became a new target for prosecutors focused on fetal personhood. But Roe specifically rejected the claim that the 14th Amendment treated fetuses or embryos as persons. Recognizing fetal personhood in other areas of the law could make Roe look like an outlier—if a fetus was a person in one legal context, why not another? So criminalizing conduct related to pregnancy became part of a strategy to erode the protections created in Roe. But the ultimate payoff was limited. As long as Roe was on the books, federal recognition of fetal rights seemed impossible.
Not anymore. After Dobbs, leading anti-abortion groups have defined the recognition of fetal personhood as the movement’s next major goal. Each prosecution or conviction now serves not to chip away at Roe but to set a precedent for recognizing fetal rights. The endgame is national recognition—and the conclusion that state laws protecting abortion are themselves unconstitutional.
What’s more, the anti-abortion movement itself has changed in recent decades in ways that make pregnancy criminalization more resonant to sympathetic prosecutors. What had been in the 1960s a predominantly Catholic movement that was strongest in the Northeast and Midwest has become a movement dominated by conservative Protestants in the U.S. South. Some of the most powerful organizations in the movement, like the Alliance Defending Freedom, espouse an agenda that links abortion and other reproductive issues to opposition to LGBTQ+ rights and questions about the separation of church and state.
As the movement changes, demands to punish patients—including abortion-seekers themselves—have gained momentum. Leading anti-abortion groups still overwhelmingly reject calls to criminalize abortion-seekers, but a growing group of self-proclaimed abolitionists insist that there is no way for the movement to be logically consistent about fetal rights without punishing patients, too.
This perspective has gained support within the Southern Baptist Convention, the largest Protestant body in the United States, which has adopted resolutions rife with abolitionist language. The more that rank-and-file activists prioritize criminalization, and the more that abolitionists press for the criminalization of abortion-seekers, the more support other pregnancy-related prosecutions will gain in some corners of the movement.
Pregnancy Justice underscores how criminalization tends to sweep more and more broadly. Most prosecutions reported in the year after Dobbs took place in the South and targeted low-income people of color, but not all of them. Prosecutors have taken aim at people who use legal as well as illegal substances, and those—said to be shielded by state laws that exempt women from prosecution for abortion—who researched or expressed interest in abortion. Three defendants faced homicide charges; one was accused of abusing a corpse. Their case files mentioned past interest in seeking an abortion or in securing abortion medication. While it isn’t clear what significance these details held for prosecutors, it seems likely that they might serve as evidence of a criminal intent. The report reflects the reality of expanding criminalization evident in anti-abortion organizing as well, as conservative lawmakers and prosecutors express interest in abortion-seekers’ support network as well as providers themselves.
When the Supreme Court reversed Roe, Justice Samuel Alito suggested that laws criminalizing abortion simply restored a long-standing national tradition. But this latest report underscores the extent to which the end of Roe has ushered in a new era of criminalization far more punitive than we have seen in the past—one that will affect a growing number of pregnancies, whether someone is seeking an abortion or not.
