Article Thumbnail

We Already Prosecute Women for Miscarriages and Stillbirths. It’s About to Get Even Worse

Over the last two decades, criminal prosecutions against pregnant women have increased dramatically — an awful portent for post-Roe America

In 2003, Regina McKnight became the first woman in the US to be arrested, prosecuted and convicted for a stillbirth. 

She was just 22 years old when she became pregnant in 1998. McKnight was unhoused and alone then, dabbling in cocaine to take the edge off her days. Prosecutors later claimed that this drug use was what killed her child — an allegation that ignored testimony from two pathologists who observed that McKnight’s history of hyperthyroidism and syphilis, as well as other non-drug factors, were just as likely to be the cause of the stillbirth. 

Nonetheless, McKnight was sentenced to 20 years in prison for the crime of “homicide by child abuse” — and she wouldn’t be the last woman to be punished with prison time over missteps, perceived or otherwise, during their pregnancy. 

Reproductive rights are under attack across the US, sharpened by the recent news that abortion access under Roe v. Wade could be dismantled by the Supreme Court. But the debate over bodily autonomy extends far beyond the single issue of abortion, with persistent fights over who gets to protect a fetus and who gets to define maternal neglect and abuse. 

Arrests and prosecutions of pregnant women have risen sharply in the last 15 years, and the ongoing attack on abortion access leaves the door wide open for state governments to further surveil, target and accuse people of violence. 

“Laws previously understood to protect pregnant women from domestic violence during pregnancy, such as fetal protection laws, now serve as the vehicles for prosecuting pregnant women,” reproductive justice scholar and author Michele Goodwin wrote in a scathing 2017 report. “What these prosecutions expose are the multitudinous ways in which the criminalization of poor pregnant women — and normalization of that criminalization, such that even doctors and nurses are expected to participate in it — serve to humiliate women, interfere with their reproductive health, and ultimately rob women of reproductive autonomy.”

The stories range in location and scope, but always involve blame falling on the mother for behaving “abusively,” even if the reality is far more nuanced. A 22-year-old pregnant mother of two in Iowa was arrested and jailed for three days in 2010 for the “crime” of falling down the steps, which initial police reports claimed was done intentionally to induce a miscarriage. (The woman denied ever stating that.) The following year, a woman in Indiana was charged with murder because she attempted suicide while pregnant, resulting in the death of her fetus. It was the first time in state history that a woman was prosecuted for a pregnancy loss due to a suicide attempt, and she served 435 days in jail for the crime. (The 1979 feticide statute used to charge her was initially intended to protect pregnant people from third-party violence, such as from abusive partners.)

Even refusing a procedure during pregnancy has led to a woman being prosecuted. In 2004, a 28-year-old in Utah was jailed for neglecting to heed the warnings of her doctors, who claimed she needed an emergency cesarean section. She refused, but was arrested and charged after one of her twins was stillborn. Once again, it was the first time in state history such a case had been fought. 

Critics like Goodwin suggest that the issue, along with the broader crisis of female incarceration, remains “invisible” in the American mainstream, despite the rising number of similar cases in recent decades. One 2013 report from Duke University found that there were more than 400 prosecutions of pregnant women between 1973 and 2005, but that’s a small number compared to the present. An investigation in 2015 found that, over just 10 years, Alabama had charged 479 women for violating the state’s “chemical endangerment” law. (The drug of choice? Marijuana.)  

Alabama, South Carolina and Tennessee have laws, or high-court interpretations of laws, that specifically criminalize drug use during pregnancy — a far harsher framework than exists in the rest of the country. However, even without the laws on the books, other states have still tried to prosecute pregnant people over drug use; per a 2015 ProPublica report, all but five states have attempted to do so, often using existing laws to define drug use while pregnant as “child abuse.” 

Drug use is by far the most common reason pregnant people are deemed unfit and abusive by the criminal justice system, but the realities range from someone suffering severe addiction to a mother who was separated from her child because of a Valium for back pain. There’s little doubt that many drugs can be harmful to a developing fetus, but myriad experts and advocates argue that treating this as a public health issue helps outcomes far more than criminalization does. Despite that, there’s been a steep increase in the number of states using laws to take child custody or initiate civil commitment in cases of pregnant drug use. Medical professionals, too, are forced to abide by more laws that mandate they report any suspected drug abuse — and even test without consent. 

There’s been strong pushback against non-consensual drug testing of pregnant people, including a New York Senate bill that would require health providers to get explicit permission. The goal is simple: to reject carceral punishment and lean on resources and rehabilitation rather than a “womb-to-foster-care pipeline.” The practice of non-consensual drug testing is a violation of human rights that could discourage pregnant people from seeking health care, advocates say. “A positive toxicology doesn’t say what kind of parent you are, it doesn’t say how much you love your child,” Miriam Mack, policy counsel for Bronx Defenders, told Imprint News. “All it says is that there’s the presence of a drug metabolite in your system.”  

When taken as a whole, it seems the status quo is a subversion of what so many of these laws were intended to do: Center the health and safety of the person who is pregnant. Yet police and state child protective service agencies have a sketchy track record of treating pregnant people with suspicion, and it’s especially true when you factor race and class into the equation.

McKnight’s conviction led to a slew of cases targeting other poor Black women for drug use during pregnancy, including 16-year-old Rennie Gibbs, who faced life in prison over a charge that she killed her baby by using crack cocaine — an accusation that was blatantly contradicted by an autopsy that showed the child died after its umbilical cord wrapped around its neck. Multiple studies have demonstrated that there is serious racial bias in who gets reported, tested and investigated over drug use while pregnant. One 2007 report found that Black women and newborns were 1.5 times more likely to be tested for drug use, despite additional data showing they were no more likely to test positive than their white counterparts. 

Perhaps it’s a big reason why so many stories about pregnant mothers using drugs have such callous outcomes — consider the story of the young Black woman in Chicago who was reported for huffing compressed air while pregnant, only to be thrown in county jail (while still pregnant) because the prosecutors argued it was the only way to stop her use. Her live-in boyfriend told police he wanted her “locked away somewhere,” according to CBS. 

There are so many reasons why punitive policies often cannot fix crime, violence or abuse, especially when it comes to helping people take care of their unborn child. The experts who work in reproduction have long opposed courts and cops creeping into pregnancies, especially when it risks derailing a child’s life by taking them from a home that needs rehabilitation, not separation. 

Experts say that punitive policies are often the result of states trying to look for “an easy fix” rather than offering services like methadone-assisted treatment for pregnant people. But the conservative war over abortion, birth control and bodily autonomy, coupled with rhetoric about protecting “traditional values,” has made the womb a political battleground. The fall of Roe, for one, would signal a major turning point for the future, especially in the numerous states with laws that would make abortion a criminal offense.  As attorney Samantha Lee of the National Advocates for Pregnant Women noted to the San Francisco Chronicle this year: “When that door is opened, then anything someone does or doesn’t do during their pregnancy could be charged similarly. We’re already seeing it, and we expect it to only get worse.”

McKnight never got the chance to receive much in the way of services when she became pregnant in 1998. But after eight years in prison for the stillbirth of her child, a campaign to free McKnight finally got the South Carolina Supreme Court to reconsider the 2001 conviction. It found that she had never received a fair trial. 

She walked free on May 11, 2008. Yet, nearly a decade and a half later, women are still being thrown behind bars under the exact same accusations.