Overturning Roe v Wade Could Lead to More Women Being Jailed for Miscarriages

Last month, a 21-year-old Oklahoma woman was jailed after she had a miscarriage at about 17 weeks.

When she arrived at the hospital seeking treatment, Brittney Poolaw admitted to using drugs. But an expert witness for the prosecution testified during Poolaw's one-day trial that her methamphetamine use may not have directly caused the miscarriage. Still, a jury found her guilty of manslaughter and sentenced her to four years in prison.

Poolaw's sentence prompted an outcry, but experts warn that her case offers a preview of a draconian future where such prosecutions could become all too common if Roe v. Wade, the landmark 1973 ruling that established a woman's right to terminate a pregnancy nationwide, is overturned.

The Supreme Court will on December 1 hear arguments in Dobbs v. Jackson Women's Health Organization, a case dealing with the constitutionality of a 2018 Mississippi law that banned abortion after 15 weeks.

Twenty-six states are certain or likely to outlaw abortion if the conservative-dominated court's ruling in that case strikes down Roe, according to Guttmacher Institute, a pro-choice research organization.

Lynn Paltrow, the founder and executive director of National Advocates for Pregnant Women (NAPW), said that women have been arrested for allegedly harming their fetuses for decades. "There were arrests before Roe, not that many, but there absolutely were some," she told Newsweek.

She cited a 2013 peer-reviewed study by NAPW that documented 413 cases of women who were arrested or deprived of their liberty between 1973 and 2005. But the pace has picked up in the years since, she said, with more than 1,200 such cases identified between 2005 through 2020.

Criminal feticide laws were initially adopted, Paltrow said, as "a response to violence against pregnant women and wanting to be able to penalize the attacker for the loss of both lives." But prosecutors "have used those laws and tried to twist them into tools for arresting the pregnant woman herself," she added, pointing to the case of Adora Perez, who is serving an 11-year sentence for manslaughter after giving birth to a stillborn baby following methamphetamine use.

If Roe is overturned, Paltrow said it would be "a giant green light for prosecutors who are intent on finding ways to police and penalize the people who get pregnant."

A recent report from the National Association of Criminal Defense Lawyers (NACDL) sounded the alarm, warning that a wave of expansive prosecutions will likely follow any significant curtailment or reversal Roe.

"A close analysis of existing and emerging state law belies the common perception that enforcement will be limited to abortion providers and irrefutably shows that erosion of a precedent that has stood for nearly half a century may well open the floodgates to massive overcriminalization," Norman Reimer, the NACDL's executive director, wrote in the report's preface.

According to the report, there are more than 4,450 crimes in the federal criminal code and tens of thousands of state criminal provisions already on the books that could subject a wide range of individuals to criminal penalties if Roe is overturned.

Arkansas, Kentucky, Mississippi and South Carolina have already redefined "personhood" in existing laws to include an unborn child.

Others are primed to follow suit should Roe be overturned, paving the way for more states to target women who lose a fetus with charges ranging from child endangerment to murder.

Pro-choice and ant-abortion demonstrators
Pro-choice and anti-abortion demonstrators rally outside the U.S. Supreme Court on November 01, 2021 in Washington, D.C. Drew Angerer/Getty Images

State laws that redefine "personhood" to include an unborn child are being used to "dramatically alter the scope of criminal liability," Lindsay Lewis, one of the report's co-authors, told Newsweek.

"These seemingly minor definitional changes have expanded the reach of criminal liability for serious offences, such as homicide, feticide, aggravated assault and manslaughter," she added.

This has fuelled the arrests of women for pregnant outcomes, whether as a result of a self-induced abortion, miscarriage or stillbirth allegedly caused by actions including alcohol and drug use, or a physical altercation.

"Although the majority of state statutes make explicit that their laws don't create criminal liability for women who receive abortions, proposed anti-abortion legislation that's not yet on the books and waiting in the wings, and existing criminal statutes in states across the country, do in fact, and will in fact, subject women to criminal prosecution and incarceration for their pregnancy outcomes."

Missy Owen, one of the report's co-authors, said defining personhood prior to the point of fetal viability will put more women in danger of prosecutions for suffering natural miscarriages in a post-Roe world.

"It's just going to be a natural consequence that miscarriages happen before viability," Owen told Newsweek. "If a fetus is considered a human being, the laws that are already on the books are going to enable prosecutors to make these prosecutions without additional legislation. When we're dealing with miscarriages, these now could be called homicide."

Lewis added: "We are, as a society, have been trending toward mass incarceration on an unprecedented scale," she said. "What will happen if Roe is overturned will only exacerbate that."