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Pregnancy outcomes may be increasingly scrutinized by law enforcement

LEILA FADEL, HOST:

With the overturn of Roe v. Wade, abortion is already or soon will be illegal in more than half the country, which means pregnancy outcomes will be increasingly regulated not by health care professionals but by law enforcement. NPR's Sandhya Dirks reports.

SANDHYA DIRKS, BYLINE: Hayley McMahon has been watching the response to the end of abortion rights, and she keeps hearing the same phrase.

HAYLEY MCMAHON: You can't ban abortion, only safe abortion.

DIRKS: McMahon studies abortion access, and she says while women will certainly die because of the Supreme Court's decision, this idea of women dying from back alley abortions is stuck in the past.

MCMAHON: It is true for the pre-Roe period but not necessarily for the post-Roe period.

DIRKS: That's because medicine has advanced. Now there are self-managed abortions, pills people take to safely terminate a pregnancy from home. That's why, she says, the symbol of this moment is not wire hangers.

MCMAHON: The really significant concern is about the legal dangers of self-managed abortion.

DIRKS: A more accurate symbol might be prison bars.

DANA SUSSMAN: Our country in the past 50 years has decided that the police state is the way to respond to public health crises, to mental health crises, to poverty.

DIRKS: That's Dana Sussman with National Advocates for Pregnant Women, NAPW. They represent women who are facing charges related to losing a pregnancy.

SUSSMAN: The mother is blamed for the pregnancy loss and then criminalized for that loss without really any science or medicine backing it up.

DIRKS: Sussman says in a lot of places, this criminalization of pregnancy has already been happening. There's two factors behind that - one, a raft of post-Roe feticide laws enacted over the past few decades which made a fetus a new kind of crime victim. These laws were passed ostensibly to protect pregnant people who are extra vulnerable to domestic violence. But Sussman says that's not what happened.

SUSSMAN: What these laws are then used for is actually to criminalize the pregnant person herself. And in fact, these laws don't make pregnant people any safer.

DIRKS: The second factor was the war on drugs, which ushered in our current era of mass incarceration and spread dangerous narratives, especially about Black people, like the idea that Black women were giving birth to a generation of so-called crack babies, an entirely fictional, racist myth.

SUSSMAN: The first experiment in this area were primarily drug-using Black women who were charged with crimes in relationship to their fetuses - child abuse, child neglect.

DIRKS: They were charged when their babies were born healthy or when they lost the pregnancy from likely natural causes. UC Irvine law professor Michele Goodwin, who wrote the book "Policing The Womb," says it's not because Black women were using drugs at higher rates than white women.

MICHELE GOODWIN: The result was that Black women who suffered from stillbirths were being policed and ultimately were being arrested.

DIRKS: In 1989, at the Medical University of South Carolina, staff working in concert with local law enforcement started drug-testing pregnant women that they deemed suspicious without their knowledge. Over the course of five years, 30 women were arrested for things like child abuse.

GOODWIN: Every one of the arrests were all Black women, with the exception of one patient. And on her medical chart, the nurse who was in charge wrote, lives with Negro boyfriend.

DIRKS: That's by no means an isolated case. Goodwin calls it symptomatic of the new Jane Crow. In the '80s and '90s...

GOODWIN: A Black woman was 10 times more likely to be reported to police and social services on matters related to her pregnancy than were white women.

DIRKS: Data collected by NAPW says to this day, the people most prosecuted for issues during pregnancy are poor, rural women of color. And it's not just about drug use. In 2010, in Indiana, a Chinese immigrant named Bei Bei Shuai was pregnant when she tried to commit suicide. She survived. The baby did not. She was charged with attempted feticide and murder. Here's NAPW's Dana Sussman again.

SUSSMAN: Attempting suicide is, of course, not criminal behavior.

DIRKS: Sussman points out that in most states, using drugs is also not illegal.

SUSSMAN: All of a sudden, the state can charge you with crimes that do not exist if you were not pregnant.

DIRKS: And now, Sussman says, a lot more women will be forced into pregnancy. And there's no way to tell the difference between self-managed abortions and miscarriages.

SUSSMAN: What I anticipate is that prosecutors will sweep in anyone who is experiencing a pregnancy loss that they deem, quote, "suspicious."

DIRKS: And Black women are twice as likely to experience miscarriage and stillbirth than white women. Abortion researcher Hayley McMahon says there are still things that can be done to curb the criminalization of pregnancy.

MCMAHON: I continue to be flabbergasted that we are not having a national conversation about decriminalizing self-managed abortion.

DIRKS: McMahon says it's key to understand that the conversation about pregnancy and abortion is not just about health and physical survival. Increasingly, it's about prison and policing.

Sandhya Dirks, NPR News.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Sandhya Dirks
Sandhya Dirks is the race and equity reporter at KQED and the lead producer of On Our Watch, a new podcast from NPR and KQED about the shadow world of police discipline. She approaches race and equity not as a beat, but as a fundamental lens for all investigative and explanatory reporting.