The past and future of pregnancy criminalization in America
The differential treatment of a group under the law is usually regarded as a blatant injustice. Yet for pregnant women in America, especially those without economic or racial capital, the legal landscape begins to shift at the moment of conception. Leading scholars and journalists at the intellectual forefront of pregnancy discrimination joined the Institute on October 12th, 2023, where they described pregnant women’s legal and criminal precarity as a long-standing and deeply rooted American legacy. The event was the 10th installment of Clayman Conversations, the Institute’s ongoing series addressing topics of feminist urgency.
“What a person is entitled to, and what she can be punished for, seems to change dramatically the moment a little blue line appears on a pregnancy test,” said Moira Donegan, the event’s moderator and Clayman Institute writer in residence. Donegan began the discussion by asking Michele Goodwin, Linda D. & Timothy J. O’Neill Professor of Constitutional Law and Global Health Policy at Georgetown Law and author of Policing the Womb, for an overview of pregnancy criminalization in the United States.
The blueprint for state-sanctioned policing of reproduction arises out of a long effort to surveil and criminalize Black women and girls, explained Goodwin. The earliest legal surveillance of pregnancy dates back to 1662, when legislation from early American colonies stipulated that the free or enslaved status of a child would be determined by the status of their mother. The law allowed slaveowners to reproduce their labor force—or as Thomas Jefferson put in a letter to senator John Wayles Eppes, “I consider a woman who brings a child every two years as more profitable than the best man of the farm.”
The earliest legal surveillance of pregnancy dates back to 1662, when legislation from early American colonies stipulated that the free or enslaved status of a child would be determined by the status of their mother.
Controlling Black women’s pregnancies became profitable and legally sanctioned, a legacy that is “written into the soil,” said Goodwin, and is manifested in new post-Dobbs legislation. Texas’ Senate Bill 8 authorizes private citizens to litigate against those who “aid and abet” the termination of a pregnancy. Goodwin sees the 2022 legislation as a clear derivative of fugitive slave laws of the mid-1800s, which permitted citizens to capture enslaved people and criminalized those who assisted in their pursuit of freedom.
Khiara Bridges, professor of law at UC Berkeley School of Law, studies how the long history of policing pregnancy materializes “on the ground” through women’s interactions with the medical system. Her first book, Reproducing Race, tells the stories of women who are swept into a variety of legal and criminal services upon seeking prenatal care at a large public hospital in New York City. Discriminatory drug screenings at such hospitals are common. In the instance of a positive drug test, medical professionals to whom women turn for care are often the same people who initiate reports to the police, Immigration and Customs Enforcement (ICE), Child Protective Services, or the Family Regulation System.
You forfeit your constitutional rights, your privacy rights, your autonomy rights, when you become pregnant.
Bridges’ research looks at the United States Supreme Court case Ferguson v. City of Charleston in 2001. The court determined that the Medical University of South Carolina had violated the Fourth Amendment by subjecting women to unconsented drug testing during pregnancy. Despite equal instances of drug use among the hospital’s Black and white patients, 29 of the 30 women arrested for consumption of controlled substances were Black. Today, Bridges focuses on those whose status allows them to escape pregnancy surveillance. In her ongoing research at a wealthy, private California hospital, Bridges finds that “class privilege buys you an exit from carcerality.”
Irin Carmon, a senior correspondent at New York magazine and the author of the forthcoming Unbearable: Being Pregnant in America, investigates regions of the United States where pregnancy is criminalized with exceptional regularity. Her recent book took her to Alabama, a state that has been called “the national capital for prosecuting women on behalf of their newborn children.” Carmon shared the story of Hali Burns, a white Alabaman who was jailed for a positive drug test just six days after birth. Burns was refused sanitary products to manage her severe vaginal bleeding and was made to sleep on the floor of her prison cell. “Exactly what fetal protection is being enacted when somebody already has had their baby, and they’re spending months in jail, separated from them?” Carmon asked. “You forfeit your constitutional rights, your privacy rights, your autonomy rights, when you become pregnant.”
The historical subjugation of Black women’s reproduction—emphasized by Goodwin—provides the basis from which Bridges’ and Carmon’s interviewees are criminalized. It is unlikely, though, that justice for these women will be administered at the federal level any time soon. “The idea that we just need to come up with an argument, and then the Court will start handing down decisions that are consistent with reproductive justice, it’s not the way the court has ever operated,” said Bridges. Still, the panelists see a moment to commit anew to safeguarding the rights of pregnant people in other institutions beyond the Supreme Court: lower courts, district courts, courts of appeal, and school boards may provide important inroads.
Donegan addressed the panel at the close of the discussion. “There’s a lot of opportunities for freedom, but we should not be looking for that leadership from the court. We should be looking to it from the likes of you.”
Photos by Steven Cotton Photography