Keeping the Police Out of Pregnancy Care

Imagine you’re pregnant and excited for your new baby: tracking kicks, setting up the crib, choosing names. Then comes sudden, unexpected pain. You lose your pregnancy at home, terrified and bleeding, and you do what you always taught your children to do in an emergency: you call for help.

The paramedics arrive and with them the police. Questions precede treatment: where are you? How long did you wait before calling 911? Did you receive regular prenatal care? Were you excited to be pregnant? Did you take any medication? Instead of prioritizing your physical and emotional well-being, you’re suddenly facing criminal charges, worried about losing your children, and trying to find a lawyer you can afford.

Cases like these are not unique. This happened all over the country in the first two years after Roe deer v. Wade fell. Pregnancy Justice and our research partners have documented more than 400 prosecutions in 16 states for pregnancy, miscarriage and abortion – while police and prosecutors, often alerted by hospitals and medical professionals when someone seeks care, treat medical emergencies like crimes. This is the criminalization of pregnancy: when a person is charged with a crime because of their behavior during pregnancy or miscarriage, such as miscarriage or stillbirth. These charges generally do not involve abortion-specific crimes; in fact, at least for now, most states cannot charge the pregnant person with an abortion-related crime. Instead, prosecutors abuse and misapply various laws to charge pregnant women with everything from abuse, neglect, or endangerment of a “child,” to murder, manslaughter, or abuse of a corpse.

The criminalization of pregnancy in the United States began well before the 2022 Supreme Court decision. Roe deerbut the safeguards that once existed to protect women from the criminalization of miscarriages or abortions are now being lifted. Today, it is a dangerous framework that motivates these prosecutions, one that seeks to treat fertilized eggs, embryos, and fetuses as “persons” with rights and that turns behavior during pregnancy into a potential crime. In practice, this type of criminalization hits low-income, Black, Brown, Indigenous, and rural communities hardest – those most at risk of excessive police surveillance and lack of affordable health care or legal advice.

In many cases, the “evidence” used to prosecute a pregnant person is a positive urine toxicology test or drug screen – often ordered and shared with child welfare authorities and police without the patient’s knowledge or informed consent. Some positive drug tests later turn out to be false; others are the result of prescribed medications; still others reflect substance use or substance use disorder (SUD). And yet, that positive test is often enough to charge a pregnant patient with a crime for allegedly exposing her pregnancy to “risk” of potential harm, often resulting in the removal of her other children from her care. That’s why major medical organizations, including the American College of Obstetricians and Gynecologists, the American Medical Association, and the American Academy of Pediatrics, recommend against using drug testing to punish or criminalize people who use drugs during pregnancy.

Enforcing laws regarding abuse or neglect of embryos and fetuses is a slippery and dangerous slope. The practice is growing rapidly: any miscarriage is treated with suspicion. As this punitive web expands, the systems that support the health and well-being of patients and their infants – prenatal care, mental health care, and SUD treatment – ​​are removed. We are seeing the gutting of Medicaid, which is exacerbating maternity care deserts, and the delaying of funding for a proven treatment for SUD that was already insufficient to meet its capacity, even as overdose deaths rise among pregnant and postpartum women. If policymakers and legislators truly wanted to improve the situation of pregnant women and their babies, they would invest in care, not punishment.

But by participating in nonconsensual drug testing and reporting their results to government agencies and legal entities, hospitals and clinicians invite law enforcement into exam rooms, initiating and facilitating the criminalization and incarceration of pregnant women. Each decision amounts to centering the needs of the institution at the expense of patients, who are then criticized for not having had a “good” pregnancy.

It can be difficult for a pregnant person to navigate a complex health care system, whether giving birth or seeking care following a miscarriage; the system was designed this way. An effective way to interrupt this cycle of punishment is to stay vigilant and informed. We can all help our community members, neighbors, loved ones and family members by accompanying them on visits and listening, taking notes and asking questions with their safety in mind. In the midst of so much political chaos, our most important tool is information about our rights and how to protect those rights. For example, a person can exercise their Fifth Amendment right by refusing to speak to the police without the presence of legal representation. It is essential that we not let threats and unconstitutional actions prevent us from demanding that our freedoms be protected.

Here’s the good news: People seeking care and those who want to support them don’t have to do it alone. Clinicians and hospitals also have power, and organizers across the country are working hard to make sure they know it. Health systems can refuse to allow law enforcement into the exam room, prohibiting non-mandatory, non-consensual reporting and ordering tests to support care rather than build criminal cases. These strategies work. In New York, a policy change like this reduced toxicology-only reports to child welfare by 80 percent, without negatively impacting infants’ health. We can collectively advocate for more cities and states to follow their lead and protect families.

Prosecutors should also state clearly that no one should be criminalized for miscarriage, abortion or drug use and they will refuse to prosecute those who are. Medical education should teach medical trainees how to provide patients with health care that meets their needs and supports their goals, without making assumptions about what is “best” for a patient and increasing their risk of criminalization. If people are facing threats of criminalization due to the outcome of their pregnancy, they can turn to organizations like Pregnancy Justice to get the legal support they need.

Our goal should be simple: preserve the health of the pregnant and postpartum person. This commitment improves outcomes for newborns, for patients after miscarriage, and for families. But it will take all of us. Our personal advocacy on behalf of our loved ones, our laws, policies and medical guidelines must support one principle: no one should be criminalized for being pregnant, regardless of how the pregnancy ends.