Criminalizing Pregnancy Loss

Marshae Jones was five months pregnant when she was shot during an argument. She survived, but the injury caused her to miscarry her fetus and resulted in an arrest for manslaughter.

That is, Jones was arrested—not the person who shot her.

Many laws that regulate reproductive decisions target abortion access. But in addition to those laws, as well as an impending U.S. Supreme Court decision that threatens to overturn Roe v. Wade, states use criminal laws to regulate the conduct of pregnant people who experience pregnancy loss.

These laws, which treat pregnant people as a host for a fetus without autonomy, have no place in reproductive health policy.

Miscarriage, the most common type of pregnancy loss, refers to the loss of a pregnancy before 20 weeks of gestation. The American College of Obstetricians and Gynecologists estimates that roughly 1 in 4 pregnancies end in miscarriage. Stillbirths, another type of pregnancy loss, occur after 20 weeks. Stillbirths occur in only 1 percent of pregnancies, but they are most likely to affect Black people, low-income people, and individuals with certain medical conditions.

Miscarriages are almost never preventable. Yet states’ fetal protection laws sometimes make pregnant people criminally culpable for their loss of a pregnancy.

These laws work by criminalizing a pregnant person for purported harm to their fetus. Thirty-eight states have “fetal homicide” laws that distinguish and punish harm to a fetus as separate from physical harm to the pregnant person carrying that fetus. Those laws were originally enacted to address the unique injury to a pregnant person whose fetus was harmed in the act of a violent crime. Although such statutes were not intended to be used against the pregnant person, some states have used these laws to punish people for their own pregnancy loss.

In addition to fetal homicide laws, states increasingly pass “fetal personhood” laws that grant full legal protections to fetuses. These protections sometimes begin at conception, meaning they extend even to fetuses in early weeks of development when as many as 50 to 75 percent of pregnancies result in miscarriage. Alabama, where Jones lived when she was shot, is one of these states.

In Arkansas, the language of the fetal personhood law is so vague, according to Planned Parenthood, that it could be used to arrest a pregnant person for waiting “even one minute” to call an ambulance after they realize they are suffering a miscarriage.

In various ways, states use fetal protection laws to regulate the behaviors of pregnant people that they do not regulate for the rest of the population.

As of 2019, prosecutors in 45 states had used these laws to charge pregnant people who experienced pregnancy loss after using drugs—including legal prescription drugs. Police usually cannot arrest someone for past drug use. But if drugs are detected in a pregnant person’s system post-miscarriage, or if pregnant people admit to using drugs at any point during their pregnancy, pregnancy loss can be blamed on drug use regardless of whether those drugs actually contributed to the miscarriage in any way.

Fetal personhood is also used against pregnant people who decline medical advice. Typically, patients have the right to refuse medical care. But if pregnant persons opt for home birth without a doctor or refuse a cesarean section and subsequently experience a stillbirth, they could be held criminally liable.

Physical trauma, like being shot or unintentionally falling down stairs, can also lead to criminal charges for pregnant people who experience loss. Marshae Jones was charged for the loss of her fetus, prosecutors reportedly said, because she “intentionally” caused her own miscarriage by engaging in a physical fight despite knowing that she was pregnant.

Most fetal protection laws can only be used to prosecute pregnant people who have engaged in some sort of “culpable” conduct related to their losses. Some laws, however, allow police to arrest people for failing to notify authorities when they have experienced a stillbirth or miscarriage at home, regardless of their conduct during pregnancy. Under one such law, a woman was arrested and sentenced to six years in prison for waiting only a few hours to report her home stillbirth to a hospital.

In some instances, the combination of fetal protection laws and abortion regulations makes it harder for people experiencing pregnancy loss to access medical care.

In states where self-managed abortion is illegal, studies indicate that police may subject people experiencing pregnancy loss to investigations to determine whether their loss was really an attempted abortion.

Mifepristone, a drug used to treat miscarriage, is strictly regulated by the U.S. Food and Drug Administration because it is also used to induce abortion. As a result of that regulation, the drug can only be dispensed by certified medical providers. But some fetal protection laws require medical personnel to report drug use during pregnancy to the authorities. Even though mifepristone is effective for miscarriage management, fear of criminalization can deter some people suffering pregnancy loss from seeking medical attention to obtain the medication.

Low-income, Black, and Indigenous women bear the brunt of these laws and disproportionately face criminal charges for their conduct during pregnancy, according to a report conducted by Amnesty International.

A study by National Advocates for Pregnant Women and Fordham University found that during a three-decade period, 52 percent of pregnant women who were arrested for conduct during their pregnancy were Black and 71 percent were low-income.

When Marshae Jones was indicted, an abortion advocate in Alabama warned that criminalization of Black women for losing their pregnancies would continue. Prosecutors in Jones’s case agreed to drop the charges against her as they related to her pregnancy, but only after activists initiated public backlash.

Most pregnant people, however, cannot rely on a coordinated national campaign of support.