After Roe, pregnant women face increased risk of criminal prosecution

In the first year after the Supreme Court ended the federal right to an abortion, 200 women faced charges for behavior related to pregnancy, abortion, pregnancy loss or birth. The decision emboldened prosecutors to develop aggressive strategies to charge and imprison pregnant women and mothers. But even prior to the overturning of Roe, hundreds of women faced such charges. Sarah Varney reports.
Geoff Bennett:
In the first year after the Supreme Court ended the federal right to an abortion, a record 200 women faced criminal charges for behavior related to pregnancy, abortion, pregnancy loss, or birth.
The Supreme Court decision emboldened prosecutors to develop more aggressive legal strategies to charge and imprison pregnant women and new mothers. But even prior to the overturning of Roe, hundreds of women faced such charges.
Special correspondent Sarah Varney traveled to South Carolina to speak with one family still grappling with the impact.
Sarah Varney:
There’s an empty seat at the table every time Lauren Smith and her family go out for lunch in Greenville, South Carolina.
In 2019, Lauren delivered a healthy newborn baby she named Audrey. A few days later, a case worker told Lauren she would not be bringing her home.
Lauren Smith, Mother:
I was completely blindsided. Never in a million years would I have thought that’s what would have been told to me, never. It was so bad I couldn’t even, like, look at diaper commercials. I would just cry.
Sarah Varney:
A urine drug screen taken without her permission showed she had used marijuana some time during her pregnancy. After two rounds of drug testing, her baby tested positive for THC, a compound found in marijuana.
How did you think about marijuana use in your pregnancies, all of them?
Lauren Smith:
It was a way for me to be able to keep food down. I worked full time up until I was seven months. So dealing with all the discomfort and the pain, it helped. It helped with my anxiety, my depression.
Sarah Varney:
The CDC cautions against using marijuana during pregnancy, but it says that more research is needed to fully understand the impacts of THC on fetal development.
Still, six months after giving birth, Lauren was arrested and charged with felony child neglect. She has waited five years for a trial set for next month. She faces up to 10 years in prison.
Lauren Smith:
This has caused so much strain on my family, on my kids. It’s affected so much. Me, mentally and emotionally, like, I will never be the same.
Sarah Varney:
And Lauren is just one of hundreds of women across the country who have been arrested or lost custody of their children for reasons related to their pregnancies.
Michele Goodwin, Author, “Policing the Womb: Invisible Women and the Criminalization of Motherhood”: There are these women that are being surveilled and charged and sentenced in these ways.
Sarah Varney:
Michele Goodwin is a law professor at Georgetown University and author of the book “Policing the Womb.” She says these cases rely on a legal concept called fetal personhood, a once fringe idea now at the center of anti-abortion advocacy.
The fetal personhood movement aims to grant full legal rights and protections to fetuses and in some cases embryos. About a third of states have established fetal personhood by law or judicial decision. And Goodwin says this concept applies to more than alleged drug offenses.
Michele Goodwin:
So if a woman is driving a car and there is an accident and it’s perceived that she was not acting responsibly enough, considering that she is pregnant, then that is enforced upon her.
If there is an instance in which she is in some form of a fight, which we have seen, and she has been injured by another party, that she is the person who is responsible because she’s been negligent towards fetal life.
Woman:
Brittany Watts overcome with emotion after learning her case is moving forward.
Sarah Varney:
Just last year, Brittany Watts in Ohio was arrested on charges of abuse of a corpse after she suffered a miscarriage in the bathroom of her home.
And in 2022, Hali Burns in Alabama was arrested when she tested positive for what her lawyers argued were legally prescribed substances during her pregnancy.
Michele Goodwin:
That’s one of the problems with these laws, is that they’re selective. They select out women because of their condition, which is unlawful.
Sarah Varney:
Between 1973 and 2023, at least 2,000 women were investigated, arrested, or prosecuted for circumstances surrounding their pregnancies and pregnancy outcomes.
Dr. Katrina Mark, University of Maryland: If you take a step back and look at the bigger picture, it’s hard not to view it as its really actually about control of women.
Sarah Varney:
Dr. Katrina Mark is director of the support clinic at the University of Maryland, which offers care for pregnant and postpartum women who use drugs.
She says separating mother from baby can cause lifelong trauma for everyone involved.
Dr. Katrina Mark:
Separating that child from its mother is almost always going to be worse than the risk of that baby being exposed to any drugs that the mother took. Disruption of that maternal and infant bond really increases the risk of neurologic and behavioral problems and relationship and social problems for that child for the long term.
Sarah Varney:
And she says, since the overturning of Roe, pregnant women and mothers are under even more intense scrutiny.
Dr. Katrina Mark:
Scaring the mom to the point that she’s not coming to get health care during her pregnancy or not disclosing her drug use so that she can get the support and treatment that she needs, none of those things are protecting the baby. Putting the mom in jail and taking the baby away is not protecting the baby.
There are lots of unsafe things that women do during pregnancy. I might recommend that they take a certain medication for diabetes, and they don’t take it, and their sugars are really high, and that’s very harmful to them and their baby. But no one is putting them in jail or taking their baby away.
State Rep. John McCravy (R-SC):
We strongly support the idea that a child is a person in utero.
Sarah Varney:
South Carolina State House Representative John McCravy founded the Family Caucus, an influential anti-abortion group of lawmakers in a state with the third highest pregnancy-related prosecutions. He believes these types of laws serve as a deterrent to drug use.
State Rep. John McCravy:
You use the carrot and the stick. The stick is, hey, this is hanging over my head. If I don’t get clean, if I don’t get rid of this drug use, then I’m going to go to jail and I may lose my child.
But if I test negative, if I do a good job of getting clean, I’m going to get to lead a normal life with my child. So, it’s a powerful thing.
Sarah Varney:
Lauren Smith says she did pass repeated drug tests, and attended required parenting classes. But she still does not have custody of her daughter.
Lauren Smith:
With the drug testing, it was so demeaning. But I was willing and happily going to do it if it meant getting my daughter back. I would have given my left toe if it meant being reunited with her.
Sarah Varney:
Representative McCravy says he’s not familiar with Lauren’s case, and that the system in place protects children in South Carolina. He says it should be up to social services if women in these situations can see their children. But he believes there should be a limit to the state’s role.
I’m curious if you’re worried about the sort of slippery slope, that you have good intentions to start with, but that this program could expand to a kind of surveillance almost of pregnant women.
State Rep. John McCravy:
If you have a child that’s been in danger, the state has an interest in protecting that child and doing what it needs to do. But I would never be in favor of a program that would go around testing women that are pregnant for illegal drugs and trying to make a big deal out of that. You know, I think that would go too far.
Sarah Varney:
Attorneys for patients caught up in these cases today, though, say the practice of drug testing pregnant women without their consent remains widespread.
Did anybody ever ask your permission to test your urine?
Lauren Smith:
No. No, ma’am.
Sarah Varney:
Or to test Audrey?
Lauren Smith:
No.
Sarah Varney:
Today, Lauren’s daughter, Audrey, is a healthy 5.5 year-old who lives with her paternal grandmother. Lauren has little contact with her. And the delay in Lauren’s trial has made it difficult for her to even get a job delivering groceries.
Lauren Smith:
Being able to Instacart, I was told I can’t do due to my background check. Being able to find adequate housing for myself and my children, it’s affected in every way. Every background check that I do, it comes up on every job I apply for.
Sarah Varney:
She says, every day, she thinks about seeing and hugging her daughter.
Lauren Smith:
Am I unworthy of being a mother to my daughter? Am I unworthy of being in her life? I have missed everything. I have missed every first there is to miss. I will be reunited with my daughter. And I don’t care how long that takes. It’s already been 5.5 years, but I’m never going to stop fighting.
Sarah Varney:
For the “PBS News Hour,” I’m Sarah Varney in Greenville, South Carolina.