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Actual Malice

The Growing Criminalization of Pregnancy

The end of Roe v. Wade will accelerate an existing effort to criminally punish people for their abortions, stillbirths, and miscarriages.

One night in May 2015, Kenlissia Jones was driving with her cousin and her 19-month-old son to pick up her godsister, who had had car trouble and was waiting on the side of a road in Putney, Georgia. Before Jones arrived, an officer pulled her over. She had failed, he said, to dim her headlights as she approached his car. While Jones’s godsister watched from down the road, he arrested her for driving on a suspended license. The cousin took Jones’s son; Jones spent the night in jail.

At the time, Jones was pregnant with her third child. She had been looking for work and getting turned down, and she wondered if employers were put off because they could see she was expecting. She was 22 years old, Black, poor, and on Medicaid. She knew she’d need money for fines and court fees; she knew that if she wanted to improve her chances of probation, she’d need a job. She was depressed, and “under stress to provide for herself and children,” according to a civil suit she filed later. “Ms. Jones considered her serious situation,” the filing continued, “and sought solutions.”

From an online pharmacy she ordered misoprostol, a medication that induces labor and is commonly used for self-managed abortion. Nearly two weeks after she was pulled over, around 11:30 at night, she took several pills. A few hours later, she went to the hospital, where she told hospital staff that she hadn’t felt the baby move for a half hour. To a nurse, who recorded her as being at least 23 weeks pregnant, she explained that she had taken misoprostol. The hospital discharged her.

Around 11 hours later, on her way back to the hospital, she delivered a baby boy who died shortly after he was born. As she lay in bed, officers waited outside her hospital room. A police investigator entered and told her to get dressed. The minute Jones left, according to the civil suit, police handcuffed her. She was still bleeding. At the county jail, a nurse drew her blood. Police asked her where she got the pills, what she had planned to do with the baby. In the middle of the night, they told her she was being charged with murder. Shortly afterward, at her home, officers searched her bedroom and took as evidence an iPhone in a magenta case and an Express Mail envelope. Back at the jail, someone finally brought four pads to Jones’s cell. She waited for her first court appearance. The official charge was “malice murder.” In Georgia, this is a capital offense.

Members of the anti-abortion movement often claim that they are interested in penalizing only providers and clinics. “The doctor, the one who has been planning to break the law, is the guilty party,” said Marjorie Dannenfelser, the head of the anti-abortion group the Susan B. Anthony List, in December. “The law is enforced against that person, not the woman.” But these arguments mask a broad, insidious effort to do otherwise. With the Supreme Court’s imminent decision in Dobbs v. Jackson Women’s Health Organization, which could overturn Roe v. Wade and trigger abortion bans in at least 17 states around the country, a future that has long been imagined may soon become painfully concrete. Abortion will not be legislated out of existence, but those seeking abortions, those who perform them, and those who help may face criminal penalties, depending on where they live and who they are—as may people who miscarry, deliver early, or have stillbirths. If Roe is overturned, as a leak of a draft opinion in early May suggested it would be, the resulting criminalization of pregnancy will inevitably reflect the legal system’s deep existing prejudices.

At the same time, as reproductive justice advocates have warned for decades now, for Jones and many others like her, that future is already here. In hundreds of cases over the past 50 years, pregnant people have faced criminal punishment for the outcomes of their pregnancies. In some instances, police and prosecutors have exploited the law in inventive ways or gone outside its bounds, flexing the power of the state over the bodies of pregnant people in the name of “protecting” the unborn. National Advocates for Pregnant Women has identified at least 1,600 such cases since 1973 involving arrests or other deprivations of liberty, according to executive director Lynn Paltrow. The wide net cast by criminalization—profiling, surveillance, arrests, and incarceration, along with the cascade of consequences that follow—has already snared hundreds of people, even with the protections of Roe in place.

It’s easier to grasp what the criminalization of abortion might look like in a world without Roe if we understand how reproductive autonomy is currently criminalized. Anti-abortion groups have already been fairly successful in spreading uncertainty about whether people who have abortions commit a crime, regardless of what the law says. It’s that “aura of illegality,” as a group of experts on abortion and the law termed it in their brief to the Supreme Court in Dobbs, that fuels how people are criminalized, as much as or even more so than the decisions of lawmakers and courts.

The impending decision in Dobbs is the end point of a decades-long campaign by anti-abortion groups to criminalize abortion by seeding the idea of “fetal personhood,” a concept that, by detaching the fetus’s fate from that of the person carrying it, manages to redefine the pregnant person as a potential criminal. The “creeping criminalization of pregnancy,” Michele Goodwin writes in Policing the Womb, started with pregnant people who used illegal drugs, and it exploited an array of largely existing laws. In more recent years, new “fetal protection” laws further institutionalized this pattern in the legal system. Now, according to the Guttmacher Institute, 24 states and the District of Columbia have laws treating substance use during pregnancy as child abuse, and 25 states and D.C. mandate that health care providers report pregnant patients simply for suspected drug use. Even when states don’t have such laws, prosecutors have used charges of murder to criminalize pregnant drug users. In California, two women who allegedly used drugs were charged with “murder” of a fetus after their pregnancy losses, charges for which there is no basis in the state’s laws. (One woman’s charge was dismissed; the other’s sentence was overturned.)

This focus first on pregnant drug users exploited a weakness in mainstream reproductive rights advocacy, which has been primarily led by women who do not have firsthand experience of criminalization. “When all these laws were being weaponized against pregnant people who use drugs, where were the white feminists?” asked Laurie Bertram Roberts, executive director of the Yellowhammer Fund, an abortion fund based in Alabama, and cofounder of the Mississippi Reproductive Freedom Fund. “Where was the pro-choice movement? Because the reproductive justice movement has been here.” Attacks on Roe weren’t happening just in high-profile constitutional cases, but in seemingly routine interactions between pregnant people and the criminal legal system. The absence of pro-choice groups in these fights wasn’t merely a reflection of where they chose to focus their resources. “If we are being really honest,” Bertram Roberts said, it’s because of who is criminalized by these laws: “All of the women and pregnant people that the white feminist movement has left behind: poor women; women of color; Black, Indigenous, people of color; queer people; sex workers; people who use drugs.”

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This expansion of criminal punishment in the name of protecting the unborn coincided with the rise of mass criminalization and incarceration over the past half-century, including a dramatic increase in the number of women locked up: Between 1980 and 2019, that figure went up by an astounding 700 percent. According to the Sentencing Project, the rate of growth was twice as high for women as it was for men. Pretexts to criminalize people for having an abortion, in the context of that vast system, go far beyond bans, as a recent National Association of Criminal Defense Lawyers report finds. If Roe is overturned, the federal criminal code has more than 4,450 crimes still on the books—along with tens of thousands of state criminal provisions, not to mention state conspiracy, attempt, and accomplice statutes—that could all be used to subject people to criminal penalties.

As the justice studies professor Grace Howard has described, we live under a regime of pregnancy surveillance, regulation, and control. This regime has already targeted people for self-managed abortion in the United States: From 2000 to the present day, at least 60 people have faced criminal penalties for self-managed abortions, according to preliminary findings from the reproductive justice law and policy organization If/When/How. But that is very likely an undercount, cautioned Farah Diaz-Tello, the organization’s senior counsel and legal director. Although only four states have laws explicitly criminalizing self-managed abortion, If/When/How found, prosecutors have taken advantage of other laws, in some cases charging people with feticide. It’s less “what the law says,” Diaz-Tello observed, than how people are “received by these systems.” And prosecutors, who are of course responsible for pursuing perceived violations, are key. What it might come down to, Diaz-Tello said, is whether particular prosecutors “think abortion is disordered and should be punished.”

In some ways, health care providers’ decisions are even more consequential than those of prosecutors, because they may be the first to have contact with someone undertaking a self-managed abortion, and the choice they make about whether to report them can lead directly to arrests. When people say they’ve lost a pregnancy, often “they are just not believed,” Diaz-Tello said. And whether they are viewed as “trustworthy or blameworthy,” she added, has everything to do with their race and their class.

If she hadn’t gone to the hospital, Kenlissia Jones may never have been arrested. Abortion in Georgia is legal up to 22 weeks; the generally agreed-upon threshold of fetal viability is around 23 or 24 weeks. The state had no ban on self-managed abortion. Nevertheless, a doctor believed that her ingestion of misoprostol was a criminal act. While she was in jail, held without bond, the district attorney for Dougherty County, Gregory W. Edwards, told reporters that her case would likely go before a grand jury. An autopsy was ordered. But after National Advocates for Pregnant Women took up Jones’s defense, Edwards dismissed the malice murder charges. “Applicable criminal law and statutes provide explicit immunity from prosecution for a pregnant woman for any unlawful termination of her pregnancy,” he explained. However, another charge in connection with using misoprostol remained: “possession of a dangerous drug.”

In Jones’s civil suit, she said she intended not to abort but to deliver early. Yet those she turned to for care reported her to social services and in turn to law enforcement—actions based on brief interactions with her during her traumatic experience at the hospital. “[Baby’s mother] is very nonchalant, not showing any emotional [sic] or compassion,” alleges a Child Protective Services intake report, filed shortly after Jones’s induced delivery, while she was still in the hospital. “The only thing [baby’s mother] was worried about was being arrested.” Their suspicions about her intentions, Jones’s civil suit said, were also magnified because of her race and income level.

Like the murder charge, the charge of “possession” was eventually dropped. Jones went home to her children; years later, her civil suit was settled for an undisclosed amount. Yet even today, her mug shot remains the first photo that comes up when you search her name. “All that I went through, it was very disturbing, mentally and physically,” Jones told me. In the annals of abortion criminalization in the United States, her case—in which a bleeding woman was discharged from the hospital into police custody and spent three days in jail, away from her children, with little medical care—is sometimes considered a good outcome because the charges were dropped.

It is simply not practical, Bertram Roberts said, to try to get everyone who lives in states where abortion would be banned to states where clinics offering abortion are still open. That means it is essential to expand access to self-managed abortion—currently a method used by an estimated 7 percent of women of reproductive age in the United States, according to a 2020 study published in JAMA Network Open. After the decision in Dobbs, the risk of being criminalized for self-managed abortion will likely increase.

How can we make abortion more accessible within the legal realities under which we operate? Post-Roe, it will become all the more vital to help people seeking abortion—and those who assist them—understand and make informed decisions about their risk of criminalization. This kind of work isn’t new, although it may be new when it comes to abortion; from “know your rights” education to community bail funds, many people are already engaged in the essential, everyday labor of minimizing harm. Certainly it would be a mistake to imagine that the expanding restrictions on abortion and reproductive care constitute a “new or unique” form of criminalization, as a collaborative brief from the Interrupting Criminalization project and reproductive justice groups puts it; really, the restrictions are “part of a larger web.” The profiling of people of color, the collusion of health care providers and police, the prioritizing of punishment over care: All of this is familiar to groups defending criminalized survivors of domestic violence or trying to decouple social services from law enforcement. “Solidarity among anti-criminalization and reproductive justice organizers,” the brief concludes, “is essential.”

This April, in Texas, Lizelle Herrera was charged with murder in connection with what an indictment called “self-induced abortion,” after a hospital reported her to police. She was held on $500,000 bond. In her arrest, we can see a glimpse of what the post-Roe future might look like. Local groups, including South Texans for Reproductive Justice and the Frontera Fund, led calls for Herrera’s release; If/When/How offered legal support, and its bail fund, the Repro Legal Defense Fund, paid her bond. Before large national reproductive rights groups like Planned Parenthood responded, the primarily Texas-based organizing helped win Herrera’s release. “We put a spotlight on Starr County authorities, and they backed down,” said Rockie Gonzalez, founder and board chair of the Frontera Fund. “However, course correction is not justice.”

Local groups like those that led the effort to release Herrera, said Aimee Arrambide, executive director of the Texas-based reproductive justice group Avow, commonly shoulder the burden without the support they need from national groups. Indeed, the expertise of people on the ground has historically been ignored. “That’s one reason our rights are getting taken away,” Arrambide argued. She was in the early stages of creating a local legal defense fund when Herrera was arrested; Texas activists, after all, had been sounding the alarm about criminalization years before Dobbs, years before Herrera’s arrest. But they were ignored. “People—I want to say naïvely—believed that the judicial system would work out on the side of constitutionality,” Arrambide said. “And that just hasn’t happened.”

The future of reproductive freedom necessarily calls for a philosophy of harm reduction—ways of reducing negative consequences while acknowledging that they can’t be eliminated. We “have a lot to learn from harm reduction movements that come before us,” said Diaz-Tello of If/When/How, like movements for drug users and sex worker rights. Their members are “experts in those calculations: who takes on legal risk, who needs to be insulated from legal risk.” Reproductive justice advocates like Bertram Roberts have long been making those connections. In Bertram Roberts’s case, her own experience has guided her. “Coming from being a really conservative Christian to doing sex work led me to have more empathy and understanding for the fact that everything isn’t just black and white,” she said. “You have to be able to move in areas that may make people uncomfortable, that may not be fully ‘legal,’” she added, “while you are striving for what should be legal.”