Tennessee, Alabama and South Carolina lead the nation in arresting and criminally punishing women for allegedly posing a danger to their fetuses, according to a report released by advocacy group Pregnancy Justice.
Nationwide, nearly 1,400 people were arrested or subject to disparate bail, sentencing and probation for conduct related to their pregnancies between 2005 and the Supreme Court decision in June 2022 dismantling abortion rights, the report found. The vast majority were poor, white women, though poor Black women were disproportionately represented.
Tennessee accounted for 131 of those cases.
“Pregnant people have been criminalized at an accelerating rate for actions that would not be illegal but for a person’s pregnancy,” Lourdes Rivera, president of Pregnancy Justice, told reporters on Tuesday.
The report shows a substantial increase in the number of people being charged for crimes tied to pregnancy. In 2013, Pregnancy Justice released a report that found that law enforcement had targeted 413 pregnant people between 1973 — which marked the Roe v. Wade decision legalizing abortion — and 2005. The new findings show those instances have tripled.
“When we talk about back alley or secret abortions, that’s not the real risk to people’s lives.” – Nina Gurek, Healthy and Free Tennessee
Advocates pointed to two key drivers in criminalizing pregnancy: the expansion of so-called fetal rights or “personhood” laws and a more punitive approach to substance use among pregnant women — even as many states move to decriminalize drug abuse in line with evolving approaches to addiction. The majority of criminal cases documented by Pregnancy Justice related to substance use, including marijuana, cocaine or methamphetamines. In about one-quarter of these cases, the substance was legal: such as nicotine, alcohol or prescription opiates.
In Tennessee, both factors hold true. Tennessee law says that “life begins at conception.”
Tennessee also became the first state in the nation to enact a “fetal assault law.” Enacted in 2014, the law allowed women to be prosecuted for drug use during pregnancy. The measure was criticized by state and national health and advocacy groups and was allowed to expire in 2016. Several efforts to reimplement the law have been introduced in the Tennessee Legislature since.
Nina Gurek, policy director for Healthy and Free Tennessee, said that despite the law’s expiration her organization continues to hear of prosecutions involving pregnant women on child abuse or neglect charges involving legal and illegal substance use allegations.
“We know it’s still happening,” she said.
The Pregnancy Justice report warns that more people could face criminal charges or increased bonds or sentencing as states have enacted abortion bans and restrictions.
Tennessee’s strict abortion ban explicitly exempts pregnant women from prosecution for seeking abortions.
But Gurek said she places no trust in the law’s protections.
“When we talk about back alley or secret abortions, that’s not the real risk to people’s lives,” said Nina Gurek, policy director for Healthy and Free Tennessee. “It’s handcuffs.”
Anita Wadhwani is a senior reporter for the Tennessee Lookout. The Tennessee AP Broadcasters and Media (TAPME) named her Journalist of the Year in 2019 as well as giving her the Malcolm Law Award for Investigative Journalism. Wadhwani is formerly an investigative reporter with The Tennessean who focused on the impact of public policies on the people and places across Tennessee.
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