By Hayfa Ayoubi and Karishma Trivedi
At the young age of 21, Regina McKnight unexpectedly suffered a stillbirth due to umbilical inflammation. She was a grieving mother, but to the state of South Carolina, she was a killer. In 2001, prosecutors charged McKnight with homicide allegedly caused by her use of cocaine while pregnant. The jury in the case returned a guilty verdict after deliberating for thirty minutes. It was not until years later in 2008 that her wrongful conviction was overturned by the state’s Supreme Court.
Unfortunately, McKnight is one of many marginalized women of color who make up the majority of individuals criminally prosecuted for substance use during pregnancy. Now that the constitutional protection for abortion under Roe v. Wade has been overturned, more women like McKnight will have the full power of the state brought to bear on them through forced procedures, surveillance, and jail sentences solely because they happened to get pregnant.
The Plight Post-Roe
In a post-Roe America, life, liberty, and the pursuit of happiness are all in jeopardy, especially for individuals who struggle with substance use. The Dobbs decision robs individuals who can get pregnant of their bodily integrity, and its ramifications will be felt disproportionately by people with substance use disorder (SUD), cementing dangers that have already existed with criminalized pregnancy outcomes. For some pregnant individuals with SUD, the Dobbs decision means they will have no recourse but to choose between two evils: facing jail time for substance use during pregnancy or losing their liberty for terminating the fetus.
A Long History of Wrongful Prosecutions
In 2011, 45% of pregnancies in the United States were unintended, and, because there was a protected right to reproductive freedom, 42% of these were terminated through abortion at the request of the birthing parent. By leaving abortion rights up to the states, many of which do not protect reproductive freedom, Dobbs will create health disparities and unequal rights based on someone’s geographic location or class. For many in the U.S., it is a grim outlook: since Roe was overturned, eight states have banned abortion, some with no exceptions, and twenty-two others have laws in place that can be utilized to enact abortion restrictions or bans post-Roe.
For individuals with SUD, though, the reality is even more grim. Around five percent of pregnant individuals use tobacco, marijuana, opioids, and/or stimulants and are, as such, at two times greater risk of stillbirth than other pregnant individuals. Even though most states don’t criminalize pregnancy outcomes, these individuals have been, nonetheless, overwhelmingly targeted by child endangerment, feticide, and homicide laws. One such example is Mississippi Code Annotated § 97-5-39, stating that “Any person [who] poison[s] a child shall be guilty of felonious child abuse,” which has been used by district attorneys to prosecute about twenty pregnant individuals with SUD between the years 2015 and 2019.
Individuals with SUD are at the mercy of prosecutors who have track records of misusing such laws to charge pregnant women with SUD with child abuse, assault, manslaughter, or murder. Brittney Poolaw, a Native American and a member of the Comanche nation, was wrongfully convicted in October 2021 of first-degree manslaughter due to suffering a miscarriage at 17 weeks. While the prosecutors alleged that Poolaw’s use of methamphetamine while pregnant caused the miscarriage, the autopsy confirmed that the cause was likely a congenital abnormality. Poolaw’s conviction was also unprecedented because Oklahoma’s murder and manslaughter laws do not apply to pregnancies lost before 20 weeks.
The criminalization of “conduct allegedly risky to a fetus,” regardless of the outcome, is already rampant. Even where there seems to be legal protection for pregnant individuals, enforcing officials overstep their boundaries, further endangering the lives of these individuals, as was the case with Rachael Lowe. When Lowe tried to seek treatment for her SUD in 2005, instead of getting medical care, she was forcibly taken away from her husband and son and put on an involuntary psychiatric hold. During her “hospital-incarceration,” she lost access to any prenatal care, and state officials did not monitor the fetus’s health. While a guardian was appointed on behalf of the fetus, Lowe was not provided legal counsel for twelve days. Despite a judge ruling that Lowe must be released, she was kept in custody for several days and then kept under forced “supervision” until her pregnancy ended.
Reproductive and SUD-based traumas are already difficult. Allowing legal room for a welfare system that is not adequately trained in addiction to target pregnant individuals with SUD through invasive surveillance tactics and mandated answerability makes the burden insurmountable without any avenue for reprieve, particularly when considering that rates of unintended pregnancies are higher among women with SUD. Addiction specialists warn that the welfare system is not well-equipped to deal with individuals with SUD, given its hesitancy to provide timely, evidence-based treatment. Without legal access to abortion, it is likely that more pregnant individuals with SUD will be subject to the welfare system’s punitive practices. More parents like the Lowes, who lost their jobs as a result of forced custody, will be stripped of resources to actually be able to sustain a healthy life for children actually born.
The Dangers to Come
All of the aforementioned cases happened while Roe was still the law of the land, but we know all too well what dangers to autonomy are to come solely “because the composition of th[e] Court has changed.” Now that abortion is no longer a protected right, individuals with SUD will have less access to reproductive healthcare and will be affected by more restrictive abortion policies. Additionally, this decision has a broad systemic impact affecting medical providers, the education system, and the legal system, which will consequently create additional obstacles and risks for individuals with SUD. Policy analysts already argue that clinical providers fear the “impossible situation” in which they have to choose between treating their pregnant patients for other medical conditions to the best of their abilities or refraining from adequately “provid[ing] the care for fear of the liability.” Physicians are unable to provide treatment protocols for SUD, cancer, and a vast number of other conditions solely out of concern that doing so could be considered as having provided an abortion. The heaviest burden will fall on the marginalized communities who are impacted by poverty and systemic racism and lack the means and resources for legal reproductive services. Legal regress ensures that stories like McKnight’s, Poolaw’s, and Lowe’s will only increase because prosecutors would have even “more leeway … to make pregnancy a crime.”
A Glimmer of Light from the Darkness
This is not to say all hope is lost. Some states have taken this moral war on human rights as a call to action. State legislatures have protected their constituents by codifying rights to abortion and autonomy over pregnancy, while courts are blocking post-Roe restrictions as unconstitutional. Looking to states such as California and New York as models, other states can follow their lead. In July 2022, the New York Senate Majority advanced an amendment to codify abortion and contraception rights in the state constitution. The California Assembly Bill 2223, introduced in February 2022, prohibits an individual from being held liable for: (1) conduct related to their own pregnancy; (2) any potential outcomes allegedly caused as a result of such conduct; or (3) conduct assisting another in exercising their reproductive rights.
There can be no life without health, no liberty without bodily autonomy. Jackson v. Dobbs, a decision based in the moral doctrine of a handful of people rather than legal precedent, medical protocol, or even common sense, will cruelly punish individuals with SUD and further exacerbate the existing criminalization of pregnancy. With heavy hearts, but motivated minds, in solidarity with Justices Sotomayor, Kagan, and Breyer, we dissent.
Hayfa Ayoubi is an Addiction Policy Extern at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center.
Karishma Trivedi is an intern for the Addiction and Public Policy Initiative at the O’Neill Institute for National and Global Health Law at Georgetown University Law Center.