The Floodgates Are Now Open for Prosecuting Pregnancy

In April, 26-year-old Lizelle Herrera was arrested and jailed, charged on suspicion of murder for allegedly self-inducing an abortion. Her story shocked the nation—even though it was not a unique incident.

Nearly 1,300 people faced criminalization for pregnancy outcomes, including self-managed abortions, between 2006 and 2020. That’s triple the amount between 1973, when Roe v. Wade was decided, and 2005 (a period more than twice as long), according to National Advocates for Pregnant Women.

Now that the Supreme Court has overturned Roe in its Dobbs v. Jackson Women’s Health decision, the floodgates are fully open. We’re going to see even more cases like Herrera’s across the country, Rafa Kidvai, director of advocacy group If/When/How’s Repro Legal Defense Fund (RLDF), told Jezebel. The end of Roe effectively transforms all pregnant people’s bodies into sites of criminal suspicion, subject to (even more) state surveillance and policing. And with the Supreme Court’s Thursday decision in Vega v. Tekoh to effectively overturn Miranda rights—which require police to warn arrested individuals of their right to not incriminate themselves prior to an interrogation—people who are arrested for self-inducing an abortion could find themselves with limited understanding of their rights and few options for recourse against police mistreatment.

The reasons pregnant people have already faced criminal charges are varied and terrifying: surviving violence that resulted in pregnancy loss, experiencing stillbirth and “improperly” disposing of fetal remains, choosing to have a home birth and experiencing complications, even just Googling medication abortion pills. As Jezebel’s Susan Rinkunas previously reported, a pregnant person could also be criminalized for eating poppyseeds and testing positive for substance use. Furthering the trauma of losing a pregnancy, someone who may have consumed alcohol and drugs prior to their miscarriage or stillbirth could be charged with feticide, homicide, or child endangerment, and arrested and incarcerated.

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In recent years, donating to abortion funds—rather than just Planned Parenthood—became more normalized for abortion rights supporters. And right now, groups like RLDF and National Advocates for Pregnant Women (NAPW), which support people facing criminal investigation of their pregnancy outcomes, need your money, too.

What services and resources do the RLDF and NAPW offer?

RLDF covers the costs of bail and legal representation for people who are in the midst of being investigated, arrested, or prosecuted for self-managed abortion. The organization also connects people to expert legal representation, and trains attorneys on handling pregnancy criminalization cases. In April, the fund partnered with the Texas-based abortion fund Frontera Fund to cover Herrera’s litigation expenses.

RLDF also offers expert witnesses to people who are being prosecuted, and tracks and holds law enforcement agencies accountable for targeting pregnant people. With the fall of Roe, Kidvai said “we’re going to see a lot more cases,” as well as a “culture of fear that’s out of control for pregnant people,” rendering the work of organizations and resources like RLDF all the more vital.

NAPW’s legal advocacy for pregnant people facing criminal charges or investigation for their pregnancy outcomes includes direct representation of clients; connecting pregnant people to pro-bono experts; offering advice and model briefs to lawyers; conducting research and drafting court papers; and working extensively with medical and public health experts to educate the public and lawmakers about the threat of pregnancy criminalization.

Dana Sussman, NAPW’s deputy executive director, told Jezebel the group has long been preparing for an outcome like the end of Roe. “We’ve known we’re soon going to be seeing, really, all the different ways in which pregnant people’s behavior can be regulated, as a consequence of a fertilized egg or embryo being defined as a human child. We’re already seeing, for example, bills to show a negative pregnancy test to get medical marijuana,” she said. Alabama came close to passing a bill along these lines earlier this year.

The laws are changing faster than most pregnant people, or people who will become pregnant post-Roe, can possibly clock—making the need for expert legal guidance and cost-absorbing funds all the more important.

How will pregnant people be surveilled post-Roe?

Pregnant people have long been subjected to criminal charges for the outcomes of their pregnancies, in large part because of the extensive surveillance tools made available to prosecutors and law enforcement agencies. The end of Roe will inevitably compound this.

In 2019, the director of Missouri’s health department was outed for tracking Planned Parenthood patients’ menstrual cycles on a spreadsheet. Forty-six states and Washington, D.C., require some form of abortion reporting, and the numerous states with fetal burial laws require people to get death certificates for aborted fetuses, thus entering their abortions into public record. States are also increasingly offering public funding to anti-abortion crisis pregnancy centers, which prey on and surveil low-income pregnant people by collecting their data and personal information online—all while not being subject to the patient privacy standards set by HIPAA because they don’t actually provide health care. Months before the Supreme Court decision, Texas’ abortion ban, which is enforced via citizen reporting and costly lawsuits meant to bankrupt abortion providers, opened the door for rapists to stalk and profit off their victims’ abortions.

Meanwhile, private data collection is already playing an alarming role in the policing of pregnant people—from a fertility tracking app with funding from anti-abortion groups, to Google’s data collection, to private firms selling the location data of people who go to abortion clinics. In 2020 alone, Google received 11,554 geo-fence warrants from law enforcement, which can show that a person suspected of having an abortion went to a clinic, or someone who lost a pregnancy following substance use previously went to a treatment center. On top of this, Google searches for and text messages about abortion pills have already been wielded as evidence by prosecutors to land people like Purvi Patel, who texted friends about abortion pills, and Latice Fisher, who researched abortion pills prior to a miscarriage, in jail.

All options to stalk and monitor pregnant people are now on the table, Kidvai told Jezebel: “The abortion rights movement has experienced incredible amounts of surveillance to date, and we’re going to see an expansion of those tools that have already existed, and more of law enforcement using often illegal means to spy on or prosecute people, without Roe.”

For years now, doctors—including the doctors who were caring for Herrera and Patel before her—have violated trust by reporting patients to law enforcement for their pregnancy outcomes. Without Roe, it’s not unthinkable that the U.S. would adopt a similar approach to Poland’s national registry requiring doctors to track pregnancies and pregnancy losses for the state.

Nonconsensual drug testing during pregnancy care, which disproportionately targets Black and Indigenous people, has also led to numerous cases of pregnant people being criminalized, leaving many hesitant to seek pre-natal care at all.

To answer the question: Pregnant people will be surveilled in every manner an abortion-restrictive state can think up. And it can think up a lot.

What criminal charges might pregnant people face?

Without Roe, in some states, people will inevitably be jailed for having or providing abortions, point blank. The Louisiana House is considering legislation to explicitly criminalize abortion—that is, charges and possible prison time for providing the procedure—and the logical consequence of banning or outlawing abortion (which states are rushing to do now that Roe has fallen) certainly seems to be criminalization. In recent years, several state legislatures have weighed the death penalty for providers and abortion patients.

Before the reversal of Roe, prosecutors and law enforcement agencies had to really maneuver to put pregnant people behind bars. “For so long now we’ve seen too many rogue prosecutors just entirely misapplying the law—where pregnancy loss isn’t a crime, to be clear,” Sussman said. “Without Roe, prosecutors are going to be emboldened, and apply criminal laws to pregnancy even more.”

To Sussman’s point, criminal charges for pregnancy loss and abortion often stemmed from law enforcement agencies’ misuse of a fetal homicide law on the books in most states, which was designed to protect pregnant people from high rates of homicide and domestic violence by criminalizing the act of killing the fetus. But this law has been weaponized by prosecutors to punish and criminalize disproportionately Black, brown, Indigenous, and other people of color for pregnancy loss, which they experience at higher rates.

Just last year, Oklahoma resident Brittney Poolaw, a member of the Wichita and Affiliated Tribes, was sentenced to four years in prison for first-degree manslaughter after losing a pregnancy and testing positive for methamphetamine. In 2019, a Black woman named Marshae Jones was briefly jailed on manslaughter charges after she was shot in the stomach and lost her pregnancy.

How can we fight back?

As a starter, you can donate to RLDF and NAPW, and share their work. Call on your state attorney general to join Rob Bonta of California, Dana Nessel of Michigan, Josh Kaul of Wisconsin, and others in refusing to enforce abortion bans and directing law enforcement agencies to not prosecute abortions or pregnancy loss. On the more local level, Sussman insisted that we ensure prosecutors and law enforcement know their communities are watching in case they “misapply laws and criminalize pregnant people.”

We can also fight pregnancy and abortion criminalization post-Roe by knowing how to protect ourselves from surveillance and investigation. As Jezebel previously highlighted, the following are essential:

• Minimize your digital footprint when it comes to searching for information about abortion—for example, use public computers at the library or VPNs on your personal devices. Use encrypted messaging apps like Signal or Google Voice to contact medical experts with questions about self-managed abortion and miscarriage.
• Turn to pro-abortion medical experts like those at M+A Hotline or Plan C Pills for any medical advice you need following pregnancy loss or self-managed abortion.
• Know how to not incriminate yourself. Self-managed abortion with pills can’t be medically distinguished from miscarriage except in rare cases. If you use abortion pills to end a pregnancy, follow all instructions to reduce risk of complications that could require you to go to the emergency room, and possibly lead to a doctor reporting you to police; take abortion pills orally rather than vaginally so as to not leave residue in the vagina that could be used as evidence against you; and know that if police officers ask for your phone or other evidence that could be used against you, you have the right to refuse.
  

As Cynthia Conti-Cook, author of “Surveilling the Digital Abortion Diary,” has previously told Jezebel, solidarity within the reproductive justice movement will be essential to keeping each other safe. “When we’re thinking about what digital routines we’re willing to incorporate in our own lives for our safety,” she said, “we should think about not just how this issue impacts us, but how it impacts the person in our networks who’s most vulnerable” to prosecution. So, pass this information on.