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This is an adapted excerpt from the Oct. 12 episode of "Velshi."
Abortion is health care. It’s a procedure that is used safely and routinely in both emergency and nonemergency situations to preserve the health, lives and livelihoods of women. And since the Supreme Court's Dobbs decision, we’ve seen the dangerous and deadly impacts of banning abortion.
You can’t criminalize women’s health care without criminalizing women — and we’re starting to see what that looks like.
But there is another, less talked-about consequence of post-Roe America: The criminalization of pregnant women — and I mean all pregnant women. In much the same way we’ve seen all manner of pregnant, miscarrying and post-partum women suffer dangerous health consequences at the hands of indiscriminate and cruel abortion bans, the legal consequences of criminalizing abortion are broad too. The reality of the matter is, you can’t criminalize women’s health care without criminalizing women — and we’re starting to see what that looks like.
A disturbing new report from the reproductive rights nonprofit organization Pregnancy Justice reveals that criminal prosecutions targeting pregnant women for their conduct during pregnancy surged to a record high in the year following the Dobbs ruling. Between June 2022 and June 2023, more than 200 pregnant people faced charges, marking the highest number of such cases ever recorded in a single year going back to 1973.
But this isn’t just women being prosecuted for abortion — this is women being charged for behavior that’s seen as endangering a pregnancy. The report links the rise in pregnancy-related criminalization to the radical legal doctrine of fetal personhood, a central objective of the anti-abortion movement and most abortion bans.
Fetal personhood extends the legal definition of “person” to fetuses or even embryos, including in the context of the 14th Amendment which grants equal protection under the law. Once legal rights are granted to a fetus, legal scrutiny can extend far beyond anti-abortion laws, enabling the surveillance of pregnant women’s behavior from the moment of conception.
This has an impact not only on those seeking abortions but also on women undergoing IVF, experiencing miscarriages or dealing with health complications that threaten a pregnancy. In Alabama, Oklahoma and South Carolina, states where fetal personhood is enshrined in law, the report found pregnant women faced more prosecutions.In fact, most prosecutions documented in the report did not actually involve abortion: Of the 200 cases, only one was prosecuted under a law specifically meant to criminalize abortion. The others involved statutes related to child abuse, neglect or endangerment, which treat an embryo or fetus as a person with legal rights that compete with those of the pregnant person. The report notes that prosecutors often don’t need to prove that any actual harm occurred to the fetus, they merely have to demonstrate that a pregnant woman posed some “risk” to her pregnancy.
That includes the case of Amari Marsh, a 23-year-old South Carolina woman who miscarried in June 2023. After miscarrying, she was arrested and charged with “murder/homicide by child abuse.” Marsh spent 22 days in jail before being placed under house arrest. She faced 20 years in prison. It was more than a year later that she was finally cleared by a grand jury and told that her case would not proceed to trial.
And that is what happens when you criminalize abortion: You criminalize pregnant women. When the state has a controlling stake in every pregnant woman’s body, every miscarriage is a potential prosecution.
When Dobbs overturned the constitutional right to an abortion, conservatives claimed the issue was simply being returned to the states. You’ll still hear Donald Trump use that line today. But it was never about “the states.” Anti-abortion Republicans have demonstrated that again and again since Roe was overturned, pushing for neighboring states to comply with abortion bans, surveilling women across state lines and criminalizing the mailing of abortion medication.
If the goalposts seem to have shifted since Dobbs, it’s because the fight was never just about states’ rights. It’s not even just about a nationwide abortion ban. The effort to grant fetuses more rights than the women carrying them signals a much broader and more dangerous objective: control over women’s bodies.
With Roe gone, the report warns that criminalization of pregnant women will likely continue, especially after the election, when Republicans are less concerned with voter backlash. Just this month, Louisiana became the first state to categorize abortion pills as “dangerous controlled substances,” threatening jail time or fines for anyone possessing them without a prescription.
If the goalposts seem to have shifted since Dobbs, it’s because the fight was never just about states’ rights.
According to Farah Diaz-Tello, senior counsel and legal director at the nonprofit If/When/How, “people are afraid to even seek information,” Diaz-Tello told NBC News. “Once a prosecutor decides that they want to punish someone for ending their pregnancy, they’re going to find a way to do so — they’re going to find a law that’s going to fit.”As long as a woman’s reproductive health is tied to the U.S. criminal code, America is increasingly becoming a country where pregnancy automatically marks a woman suspect — and her womb effectively becomes state property.