When Any Birth Outcome Can Be a Criminal One

(a truly horrifying, dystopian mindset that aims to control and punish women)


When Any Birth Outcome Can Be a Criminal One
10/13/2023 by Morgan Carmen
Right-wing prosecutors warp child neglect, abuse and endangerment statutes to criminalize behavior during and after pregnancy.



Protesters march near the Supreme Court in support of gun control and abortion rights protection on May 28, 2022. (Tasos Katopodis / Getty Images)

In August of 2019, 35-year-old Julia (name changed for privacy) birthed a healthy baby girl at an Oklahoma hospital. Her doctors tested the newborn’s meconium, its first bowel movement, for a variety of substances; the test for marijuana came back positive. Meconium testing is often done without the consent of a newborn’s parent(s), and it can detect exposure to marijuana from months earlier. It is both unclear whether Julia consented to the test and whether she had used marijuana in the weeks before giving birth. But it is clear that Julia had a medical marijuana card that authorized her use in the state of Oklahoma, and it is also clear that her doctor confirmed that she could continue her use during pregnancy.

Neither fact mattered to the state, and both the local police department and family welfare apparatus (Oklahoma Department of Human Services) launched investigations. By July 2020, Julia was arrested and charged with a felony count of child abuse. The charges against her were dropped by early 2023, but it came after years of legal costs, fears of losing her child, and threats of further incarceration. Julia’s story is one of 1,396 covered in a report released by Pregnancy Justice last month. The report identified cases of pregnancy criminalization in the United States between January 2006 and June 2022 and found that the number of arrests in that period was three times higher than in the 33 years prior. (Lynn Paltrow and Jeanne Flavin identified only 413 similar arrests between 1973 and 2005.) Over 80 percent of these cases involved a live birth, around 82 percent of which resulted in a healthy baby—like Julia’s. In these cases, the materials contained “no mention of negative health outcomes.” And yet, just as in Julia’s story, charges were filed.

Essentially, Julia and others were arrested for engaging in behavior a prosecutor thought would pose a risk to fetal health. Almost 84 percent of all cases involved charges of criminal child neglect, endangerment and/or abuse. The report clarifies that, generally speaking, neglect and endangerment statutes do not require evidence of harm; rather, “they require only that someone knowingly or recklessly acted in ways that risked harm.” Child abuse laws are more stringent but may only require “imminent risk of harm.” The lack of harm requirement, the report explained, “is key to criminalizing pregnancy, in part because it allows state actors to use exposure to substances alone, rather than any actual harm, as a basis for criminalization.”

The relationship between exposure to a certain substance and risk of harm need only be a theoretical one. In Julia’s case, her doctor confirmed that it was safe to use marijuana while pregnant. (A 2022 Pregnancy Justice document says the same: “Cannabis use during pregnancy has not been proven to cause any specific or certain harm to a fetus.”) The substance to which a fetus is “exposed” in utero also need not be illegal for charges to be filed. Julia had a medical marijuana card and used it in that capacity (under her doctor’s care). Indeed, 90 percent of the cases in the report involved allegations or evidence of substance use, and a “striking one-quarter of cases involved alleged use of legal substances.”

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If prosecutors have charged individuals like Julia who ingested medical marijuana during pregnancy (and had a healthy baby) with child neglect, endangerment and/or abuse, they can, will and have charged others for taking mifepristone, Valium or not wearing a seatbelt during pregnancy. Pregnancy Justice concludes that Dobbs “will further accelerate an existing crisis, putting anyone who is pregnant or has the capacity to become pregnant at even greater risk of arrest, prosecution, and conviction.” The state will punish those who want, and those who do not want, to be pregnant. The state will punish those who try, and those who successfully get, abortions. And the state will punish those individuals who are reported.

If you recently had an abortion, are seeking an abortion, or need legal support for your pregnancy outcome contact the Repro Legal Helpline at (844) 868-2812 for confidential legal information and advice. If you provide or support abortion care and have questions about your legal rights or have been threatened with legal action related to abortion, contact the Abortion Defense Network. Another such resource is Pregnancy Justice, which provides defense for people who face investigation, arrest, or detainment related to any pregnancy outcome or who were forced to have a surgery because of pregnancy.

https://msmagazine.com/2023/10/13/pregnancy-laws-drugs-poor-women-prosecutors-abortion/