The ultimate goal of the anti-abortion movement has always been to exert complete control over others’ bodily autonomy, extending beyond banning abortion. Their opposition encompasses not just abortion but also fertility treatments (like IVF) and contraception, in addition to their vigilant surveillance of pregnant people. Through strategic manipulation of legal and health care systems, the anti-abortion movement has effectively weaponized these systems to dominate the bodily autonomy of pregnant individuals and push for fetal personhood.

What a person can be legally punished for and the rights they are entitled to change as soon as they become pregnant. A person can be criminalized for actions that would not be considered illegal if they were not pregnant, like substance use or falling down the stairs [1]. This phenomenon is not new, the earliest legal surveillance of pregnancy in this country dates back to 1662, when the free or enslaved status of a child would be determined by that of their mother. [2] As it did then, the criminalization of people for their pregnancy outcomes disproportionately targets Black and Indigenous women and women of lower socio-economic status. [3] These groups are already exposed to increased surveillance by the legal system for their identities and this surveillance is intensified if they become pregnant [3].

Unfortunately, these instances of criminalization often begin in settings that are supposed have the health and safety of the pregnant person in mind: hospitals. What begins as an individual’s pursuit of necessary healthcare can swiftly escalate into involvement with the police. Shockingly, 39% of abortion-related criminalization stems from healthcare providers involving law enforcement when it is not necessary. [4] While this may stem from providers’ fear of facing legal repercussions themselves, it certainly does not justify these blatant assaults on the rights of pregnant people.

Once pregnant individuals become entangled with the criminal justice system, prosecutors often manipulate statutes to criminalize behaviors not originally intended to apply to them. There’s a concerning trend where prosecutors stretch existing criminal laws to encompass reproductive behavior, making these instances of prosecution unpredictable and difficult to combat. The ambiguity of these laws across different states further complicates matters, as the “plain text” fails to guide pregnant people and their legal representation on how to avoid criminal penalties. [3] The rise of fetal personhood laws exacerbates these legal repercussions, granting fetuses more legal protections than the pregnant person themselves. These laws have been exploited to prosecute those experiencing pregnancy loss, ranging from abortion to stillbirth, amplifying the challenges and injustices faced by pregnant people within the legal system. [5]

Anti-abortion leaders and policy-makers will not stop at the criminalization of abortion and pregnancy. The so-called ‘pro-life’ have already begun their attacks on fertility treatment and birth control. In the past month, the Alabama Supreme Court ruled that frozen embryos, used in IVF treatment, can be considered children under state law. While it is clear that this decision could drastically impact access to IVF in states that adopt similar laws, it also shows the path that the anti-abortion movement is taking: they are looking to give fetuses more protection from the point of conception than that which is offered to pregnant people. [6] Additionally, prominent anti-abortion organizations have continually, falsely, referred to all common forms of birth control (the pill, IUD, Plan B, etc.) as abortifacients, or drugs that cause abortions. [7] This language makes it clear that the anti-abortion movement will not stop until they have criminalized all aspects of reproduction.

The historical context of legal surveillance of pregnant individuals, coupled with the disproportionate impact on marginalized communities, underscores systemic injustices in both our legal and healthcare systems. Health care providers’ involvement with law enforcement, manipulation of statutes, and the rise of fetal personhood laws further exacerbate the criminalization of pregnant individuals. As we confront these challenges, it is important to remain vigilant in defending policies that aim to decriminalize all reproductive health choices. By addressing the root causes of criminalization and supporting initiatives that uphold individual rights, we can work towards a future where reproductive justice is fully realized and pregnancy is no longer subject to criminalization.

Sources:

1. https://www.npr.org/2022/08/03/1114181472/criminalization-of-pregnancy-has-already-been-happening-to-the-poor-and-women-of 
2. https://gender.stanford.edu/news/past-and-future-pregnancy-criminalization-america
3. https://www.cambridge.org/core/journals/american-journal-of-law-and-medicine/article/reversing-the-criminalization-of-reproductive-health-care-access/9F2FDE2D510EB2CBC6783498EC72415F
4. https://www.law.cuny.edu/wp-content/uploads/media-assets/2023_Clinic_HRJG_REPORT-U.S.-Criminalization-of-Abortion-and-Pregnancy-Outcomes.pdf
5. https://www.theguardian.com/world/2023/jul/25/states-using-fetal-personhood-laws-to-criminalize-mothers
6. https://abcnews.go.com/Health/wireStory/court-ruling-frozen-embryos-children-affect-ivf-107422807
7. https://reproaction.org/resource/coming-for-birth-control/