In post-Roe America, prosecutors have launched more than 400 cases accusing people of crimes related to their pregnancies.
“I know that I do not look like the stereotype of who is getting an abortion,” Lauren Miller tells me over the phone from Dallas, Texas.
“I was already a mother, married, with a family. This was a wanted pregnancy.”
She describes her big blonde hair and houndstooth jacket.
“I look like somebody’s grandmother,” she says in a self-deprecating Southern drawl.
In August 2022, Miller could not stop vomiting in the early stages of her second pregnancy.
At eight weeks gestation, she was hospitalised and diagnosed with hyperemesis gravidarum — a pregnancy complication characterised by severe nausea and vomiting. It was there, dehydrated in the emergency room, that Miller also learned she would be having twins. Together with her husband she excitedly made plans for a bigger car and a supersized stroller.
But at 12 weeks gestation a routine test revealed one of her twins had trisomy 18 — a severe genetic condition that causes multiple structural abnormalities and makes the fetus unlikely to survive to birth. Her fetus had an abnormal heart, an incomplete abdominal wall and fluid-filled sacs where the brain should have been developing.
“Every day he continues to develop, he puts myself and his twin at greater risk for complications,” she wrote in her diary at the time. “I want my baby to be OK and he will never, never, never be OK.”
Doctors explained a fetal reduction abortion procedure was necessary to give her and the second fetus the best chance at survival. In her appointments specialists and genetic counsellors tip-toed around the reality that Texas had just criminalised the healthcare she needed.
When pregnancy belongs to the state
A few months earlier, on June 24, 2022, the US Supreme Court delivered the Dobbs decision, taking away the country’s constitutional right to abortion, abandoning decades of precedent and paving the way for states to introduce their own abortion bans. Texas now has one of the strictest abortion laws in the country — terminating a pregnancy is banned in nearly all situations, with very limited exceptions.
“In Texas we have this big pride in freedom and independence, even more than most Americans,” Miller says. “We’re the Lone Star State like out there alone on the prairie.”
But rather than a lone “cowboy on a horse”, the defining imagery of the state where her family had lived for eight generations became something very different for Miller: The spectre of a politician hovering behind her.
“We’d get this horrible news and that is where it ended as they couldn’t discuss our options because it felt like we had a politician there too — Ken Paxton, our attorney-general, might as well have been sitting in a chair in the corner, chewing on a pen because he was present in the room,” she says.
Paxton has now sued multiple people, including medical professionals, over the provision of abortion.
After one of Miller’s most devastating ultrasounds one doctor finally said it plainly: “This baby isn’t going to make it to birth. I can’t help you. You need to leave the state.”
“There’s no dignity in this process,” Miller wrote in her diary on the plane to Colorado — she was vomiting too frequently to attempt the 14-hour drive through rural Texas.
Miller’s first child was born before Roe was overturned. But this time around she felt her pregnancy was no longer her own. Instead, she says, it belonged to the state.
Handcuffs in place of healthcare
The preventable deaths across the country, the interstate travel at personal risk and expense, the non-viable pregnancies forced to be carried to term, the increases in infant and neonatal mortality and the prosecution or indictment of medical professionals, including a midwife and a doctor. The ramifications of the Dobbs decision have been well-documented. But in a post-Roe America it isn’t just patients seeking abortions who live under the shadow of the law — it is all pregnant people.
Amid a push for fetal personhood — a legal doctrine that gives fetuses, and sometimes embryos, the legal rights of a person — people are not only being denied healthcare but face prosecution for pregnancy complications.
It has left some women afraid of falling pregnant.
Abortion rights placards are are familiar sight at protests against Donald Trump. (AP: Ross D Franklin)
In March, an ambulance made its way to an apartment in rural Georgia to respond to an emergency call. A woman was bleeding and unconscious. Selena Maria Chandler-Scott had lost her pregnancy. The 24-year-old had disposed of the fetal remains in a bin before she passed out. The next day she was arrested and charged with concealing the death of another person and abandoning a dead body — charges that carry up to 13 years imprisonment.
Most pregnancies end in a live birth but between 10 per cent and 25 per cent of all pregnancies in the United States end in miscarriage, while many others end in a stillbirth or an abortion.
Chandler-Scott’s charges were ultimately dropped after an autopsy confirmed she had suffered a “natural miscarriage” but her arrest was not an anomaly.
A landmark report from reproductive rights group Pregnancy Justice found that in the first two years after Roe was overturned prosecutors across the country initiated at least 412 cases charging individuals with crimes related to their pregnancy, pregnancy loss, or birth.
Karen Thompson, the organisation’s legal director, says people should be receiving healthcare, “not being put into handcuffs”.
Thompson, who leads a team of attorneys in litigation, says she’s seeing three main types of cases in pregnancy criminalisation. The first are cases involving fetal remains (all or part of a fetus) in which someone is charged with abusing a corpse or not disposing of a corpse properly following a miscarriage.
“[The person is] reported, usually by a healthcare worker, and police are then sent to their home to arrest them and charge them,” she says.
In September 2023, Ohio woman Brittany Watts sought treatment at a hospital before she miscarried her non-viable fetus in her bathroom. She was then arrested and charged with abusing a corpse. While a grand jury ultimately declined to indict her and a local prosecutor declared she had not violated the law, Watts is now suing the medical professionals and police officer involved in her arrest. One of her attorneys has said the repercussions of the Dobbs decision meant “that [Watts’s] pregnancy and her choices and her medical crisis were viewed in a different way”.
In June this year another woman in South Carolina who had a stillbirth was arrested and charged with “desecration of human remains” because she put the fetal remains in a bin.
The second type of legal cases Thompson is seeing are straightforward accusations of murder when when someone has had a miscarriage or stillbirth.
Amari Marsh was arrested, charged, imprisoned and later held under house arrest wearing an ankle tracking bracelet, after a miscarriage in August 2023. The South Carolina woman was charged with “homicide by child abuse”, which carries a sentence of 20 years to life, before she was cleared by a grand jury.
Of the 412 cases documented by Pregnancy Justice, 292 involve women being charged after a live birth. Most of these cases were the third, and most common, type of case: allegations of substance abuse.
The majority of the cases documented by Pregnancy Justice involve a single allegation — that the person used a substance during pregnancy.
Tony Scialli, an OB-GYN in Virginia who specialises in reproductive and developmental toxicology, argues links between pregnancy loss and substance use are tenuous.
“The contention that a woman’s substance use caused miscarriage is not supported in the scientific literature,” Scialli says.
“Spontaneous miscarriage is very common, occurring in at least 20 per cent of recognised pregnancies without any exposures at all.”
The use of substances in pregnancy is undoubtedly dangerous to the fetus, but Thompson shares Scialli’s concern about how prosecutors are constructing their cases — and the laws they’re relying on.
“Correlation is not causation and what the data shows us over and over again is that substances don’t cause the actual death of a newborn,” Thompson says.
“I’m not saying that there aren’t complications. I’m not saying that a child might not be born experiencing or demonstrating withdrawal symptoms.”
Prosecutors don’t have to prove a fetus was even harmed and they usually don’t. Prosecutors overwhelmingly charged people under statutes that allow them to obtain convictions without proving harm. (In 378 of the 441 charges laid in the two years post-Roe, proof of harm was not required.)
Thompson says criminal charges around “exposure” to substances were first used to address children exposed to toxic chemicals in methamphetamine labs.
“But what has happened now is the law is now drawn around and placed upon a pregnant woman, so any exposure to drugs in the womb is tantamount to the crime of chemical endangerment,” she says.
“You don’t have to prove the harm,” she says. “All the prosecutor has to say is, ‘there is exposure’… it is the lowest of low-hanging fruit.”
Pro-choice protesters dressed as handmaidens outside the US Capitol. (AP: Jose Luis Magana)
In some cases women are being held criminally responsible for substances they have taken before they were even pregnant.
In 2023 a joint investigation between the The Marshall Project — a nonprofit news organisation that reports on the US criminal justice system — and other news outlets delved into the cases of women who used drugs and were subsequently prosecuted for child endangerment or neglect, even when they delivered healthy babies.
The investigation found most of the women pleaded guilty, meaning they could be separated from their children for months, years or forever.
Scialli is concerned about the way these drug tests are being used. In some cases a woman tested negative for drugs but her newborn’s meconium (first bowel movement), which can hold drug residue for months after ingestion, tested positive.
Scialli says it is possible women have taken drugs before knowing they are pregnant.
“Often there is no consent for the testing, which is a crime in the US,” he says.
“It has become common for practitioners in some states to perform urine screening without the knowledge or consent of the woman.”
In 2021 an Alabama woman, who did not know she was pregnant, had a stillbirth at home. When she presented at hospital for emergency medical care, a controlled substance was found in her system. Two years later, after Roe was overturned and long after she said she had given up substances, she was getting ready for church when police officers knocked on the door. She was charged with “chemical endangerment” of her “unborn child”.
The myth of the perfect pregnancy
Back in September US President Donald Trump made a huge announcement. He discouraged women from taking paracetamol during pregnancy based on unproven claims that the popular painkiller, sold as Tylenol in the US, was linked to autism. The US president encouraged mothers to “tough it out” and go without painkillers to avoid increasing their child’s risks of an autism diagnosis.
The Trump administration’s rhetoric was not only unscientific but troubling in light of increasing criminal prosecution for substance use, says Michele Goodwin, an expert in constitutional law and health policy.
Goodwin is also the author of Policing The Womb: Invisible Women and The Criminalization of Motherhood. She says Trump has fed the false assumption that pregnancy is uncomplicated.
“It is this idea that if there is some imperfection with pregnancy, it must be because of an action taken by the pregnant person and this is problematic because pregnancies are not perfect,” she says.
If pregnancies are meant to be perfect, she argues, the door is left wide open for state criminal punishment and civil regulation.
“Because the idea is that if something went wrong in terms of miscarriage, something went wrong in terms of stillbirth, something went wrong presumptively, with regard to having a child with disabilities, that must be the fault of the woman and something that she did to cause it.”
This chain of logic matters, says South Carolina professor of law Madalyn Wasilczuk.
She doesn’t believe it would happen but if a prosecutor had taken the Trump administration’s guidance on Tylenol as causing harm “there’s nothing really to stop them charging someone for taking it”.
“It comes back to women’s lack of control over pregnancy outcomes,” Wasilczuk says.
“We know miscarriages are very common, not as uncommon as one might like to think or imagine and those kinds of outcomes have been made inherently suspicious in the wake of Dobbs.”
Wasilczuk was stunned when earlier this year a West Virginia prosecutor warned people who have miscarriages that they could be prosecuted. He then suggested out of an abundance of caution people might want to let law enforcement know if they had miscarried .
“That is an extraordinary thing to say, given the frequency of miscarriage, and you know, the inability to really prove why a miscarriage has occurred,” she says.
“This idea that the only non-suspect outcome of a pregnancy is a healthy living child is a really dangerous premise. As if pregnancy is that simple.”
Screening newborns for substances is not the only questionable science forming the basis of the prosecutions Wasilczuk is mapping.
She refers to what is known as the “lung float” test — a widely discredited test in which a dead infant’s lungs are placed in water. If the lungs float, the conclusion is the child drew breath and was therefore born alive.
“It is entirely without scientific merit and it has been used in cases to ‘prove’ that it was not a stillbirth or miscarriage and to say there was a live birth followed by a homicide,” she says.
Air can enter a baby’s lungs without taking a breath. In 2023 some medical examiners said the test is “pseudoscience masquerading as sound forensics”, likening it to 17th century witch trials where a woman floated to the surface rather than sinking, she was deemed a witch.
When we speak, Wasilczuk’s newborn is sleeping. She fell pregnant while co-authoring the first Pregnancy Justice report on pregnancy criminalisation.
It hit home how what should be a period of unadulterated joy is now compromised for millions of Americans.
“I am a well-educated, well-resourced white woman with a lot of privilege still living in a state that prohibits abortion and lacks many resources, that is seeing OB-GYNs flee the state because of these abortion laws and the restrictions on their practice,” she says.
“No one is outside of these laws… and it all becomes more real once you are going through that and you know that there are other pregnant people who you know have vulnerabilities that are different than your own.”
Strangers become bounty hunters
Emily Witt of reproductive rights organisation Avow Texas says the fall of Dobbs necessarily “caused the criminalisation of pregnancy, particularly in communities of colour” where women were already under more surveillance from law enforcement.
“I do think the difference is that now people, especially law enforcement, are encouraged to [criminalise the outcome of a pregnancy],” Witt says.
Texas allows anyone to file a civil lawsuit to “enforce” the abortion ban.
Strangers, abusive partners or coercive family members could effectively take legal action to block abortions or punish those involved in an abortion. Even people unconnected to the pregnant woman could sue abortion pill manufacturers and those who send the pills to Texans — allowing them to collect a minimum of US$10,000 ($15,000) in damages.
Earlier this year Adriana Smith, a woman in Georgia, suffered multiple blood clots in her brain while nine weeks pregnant. Smith, who was declared brain-dead, spent 16 weeks on life support to support her developing fetus until her premature baby, named Chance, was born via C-section at 25 weeks gestation. The decision to keep her on life-support to grow the fetus was made without her family and in keeping with the state’s abortion ban after six weeks of pregnancy.
“I’m not saying we would have chosen to terminate her pregnancy,” her mother told a local news outlet. “But I’m saying we should have had a choice.”
‘I’m terrified to be pregnant’
In Reddit threads other Georgian women share Smith’s story. They tell each other to choose another state to travel to if their pregnancy becomes complicated. They describe haemorrhaging after a miscarriage and waiting hours in the emergency department as doctors dithered.
One warned of a friend who miscarried and was refused a dilation and curettage (D&C) — a simple and common procedure to clear the womb of pregnancy remains and reduce the chance of infection or prolonged bleeding. She “almost died”.
Others advise to avoid pregnancy altogether.
At least two women have died under Georgia’s abortion ban. The state has dissolved the committee responsible for investigating the deaths.
Data released in 2023 found that a third of women aged 18 to 39 surveyed were deciding not to get pregnant, or knew someone who was deciding not to get pregnant because of concerns about maternal healthcare post-Dobbs.
Witt empathises with them.
“I am 32 and would love to have a child,” she says. “I’m terrified to be pregnant in Texas and a lot of people feel that way.”
When a fetus gets legal rights
While the increase in prosecutions has come in the wake of the Dobbs decision, abortion bans themselves aren’t the legal weapon wielded in most of these cases. But the legal ideology that unites the anti-abortion movement — fetal personhood — is crucial to understanding the current situation.
Kimya Forouzan is principal state policy advisor at the Guttmacher Institute, which researches sexual and reproductive health in the US.
“The push towards fetal personhood is inextricably linked to the goal of increasing criminalisation of pregnant people and providers,” Forouzan says.
“If a fetus or embryo has the same legal rights as a person, obtaining an abortion, or providing IVF care (which involves the handling of many fertilised embryos) could be a target for criminalisation.”
Policy is already being brought before state legislators making that connection explicit, she says.
The institute tracked at least 38 bills, across 24 states, in the first half of this year alone that sought to grant an embryo or fetus the full legal rights of a person.
“These bills that sought to establish fetal personhood included language that these laws could be used to criminally charge people for their pregnancy outcomes — a clear sign of these policymakers’ goals.”
The risk of pregnancy in America
“There’s no hyperbole here,” Michele Goodwin says plainly.
“It’s very clear that if you live in certain states, then certain liberties — in terms of privacy, bodily autonomy, freedom, citizenship — belong to you, and if you live in certain other states, it doesn’t.”
Goodwin, a constitution law expert, referred to the US’s high rate of maternal deaths for a high-income country.
“Any woman, regardless of her race, has a higher potential of dying in the United States while being pregnant, but that’s magnified in these states that have abortion bans,” she says. “And then it’s further magnified if she happens to be a person of colour in the United States, particularly of black women, who are three to four times more likely to die carrying even wanted pregnancies to term.”
More than a third of US counties qualify as “maternal care deserts” — where there are no hospitals offering obstetric services or birth centres and no obstetricians, gynaecologists or certified nurse midwives. Women in states with strict abortion policies are less likely to be able to find an OB-GYN. Despite this lack of care, prosecutors or police argued that pregnant people’s failure to obtain prenatal care was evidence of a crime in 29 of the prosecutions mapped by Pregnany Justice.
Back in Texas, three weeks before her baby Henry was born Lauren Miller joined 19 other women who were also denied abortion care despite facing dangerous pregnancy complications. Together they filed a lawsuit against the state of Texas.
The women were not trying to repeal Texas’s abortion ban but to force clarification as to the precise circumstances in which exceptions to the ban are allowed. Or, as Miller puts it: “how dead did I need to be?”
The highest court in Texas rejected the challenge to the state’s abortion bans with a unanimous ruling from the nine justices, who are all Republicans.
The ashes of Thomas sit in a glass cabinet in Miller’s office — a daily reminder of the other son she wanted and the lengths she had to go to for healthcare.
“You can’t just legislate abortion away because it is still going to be needed,” she says. “It doesn’t work in the real world. You can’t legislate away fatal fetal anomalies, near death pregnancies or deadly pregnancies.”
In June last year, a year after she fell pregnant with Harry and Thomas, Miller stood in front of the US Senate and described how the spectre of fetal personhood had made her own rights to healthcare all but non-existent in Texas.
“I was at risk of organ damage to my kidneys and brain … but I still wasn’t close enough to death to receive abortion care in Texas.”
She described fearing her placenta would detach and she would bleed out as she lay in an emergency room dehydrated, shaking and vomiting.
“Being pregnant is no reason to have our human rights to health, life and liberty trampled upon,” she said.
“This subjugation and dehumanisation of women needs to stop — not get worse.”
Credits
Words: Gina Rushton
Production: Catherine Taylor
Illustrations: Lindsay Dunbar
Odyssey format by ABC News Story Lab
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