New study finds more than 400 pregnancy-related prosecutions after Roe’s fall

Melinda Johnson’s life used to look very different.

Two years ago, she was charged with chemical endangerment, among other drug-related offenses, for using methamphetamine while she was pregnant. Johnson, then 42, said that the pregnancy was unplanned and that she was grappling with a substance use disorder.

People misunderstand addiction and recovery, she said. “It’s just not something that happens at the snap of the finger. There’s no switch to shut that off.”

Many women have found themselves in the same position. Over a two-year period, prosecutors across 16 states charged more than 400 people with pregnancy-related crimes, with most of the charges originating in states with near or total abortion bans, according to a new report released Tuesday.

The prosecutions were initiated in the two years after the Supreme Court struck down Roe v. Wade in 2022, according to Pregnancy Justice, a nonprofit legal group that advocates for pregnant people, which released the report.

In the wake of that decision, Dobbs v. Jackson Women’s Health Organization, supporters of abortion rights expressed concern that losing the national right to abortion would bring increased scrutiny of women during pregnancy, pregnancy loss or birth. In Georgia, for instance, a woman was arrested and charged in March after, authorities said, she disposed of her miscarried fetus in a dumpster. The charges were ultimately dropped.

Researchers at Pregnancy Justice say the number of prosecutions is likely to be higher than the 412 reported. Because of a change in methodology, they couldn’t say with certainty whether it’s higher than before Dobbs.

“Without having the ability to look at every single county across the country, that is an alarming number,” said Dana Sussman, the group’s senior vice president. “And it should alarm all of us.”

Anti-abortion advocates have stressed that women seeking abortions won’t be criminalized under current abortion bans. While physicians can face prison time for performing abortions not covered by exceptions, the bans exclude the women from criminal charges.

But the report notes that references to abortion have surfaced in some instances. In at least nine cases, it says, there were “allegations pertaining to an abortion.” In three cases, charging documents referred to abortion medication.

The most common charges involved accusations of child abuse, neglect or endangerment, according to the report. Almost all the cases involved allegations of substance use during pregnancy. In 268 cases, or roughly 65% of the cases counted, that was the sole allegation of wrongdoing.

Those prosecutions aren’t evenly spread. In Alabama, where nearly half of the cases were brought, some prosecutors have been particularly aggressive about charging pregnant women accused of drug use. The state’s attorney general, Steve Marshall, expressed support for such charges as a district attorney in the hope that they would deter women from using drugs while pregnant. He didn’t respond to requests for comment.

When Johnson was arrested two years ago, she was held in jail for weeks before she was transferred to one of the few rehab facilities in Alabama that takes pregnant women and those with children.

Today, Johnson has joint custody of her 2-year-old daughter. The state has custody of her 11-year-old twin boys but allows them to live with her. Her plea deal enabled her to avoid jail time, but she said she owes thousands of dollars in fees and fines. She now works in peer support for Aletheia House, a treatment facility, teaching life skills to women who face similar charges.

“I just love restoring faith in those women,” she said.

Still, she thinks handcuffs and jail bars aren’t the way to assist pregnant Alabamians struggling with substance use in a state that bans abortion with few exceptions.

“It’s just not right for us to have to face these charges when we’re in the middle of the worst darkness and addiction,” Johnson said.

Under the state’s chemical endangerment law, a convicted person can face up to a decade in jail if prosecutors don’t allege the fetus, or child, was harmed. If serious harm is alleged, the maximum sentence can climb to 20 years or more. The statute, initially passed in 2006 as a response to the rise in home meth labs, has since been used to charge pregnant women accused of drug use.

The American College of Obstetricians and Gynecologists has opposed legislative efforts to criminalize pregnant drug users.

“Drug enforcement policies that deter women from seeking prenatal care are contrary to the welfare of the mother and fetus,” it said in a brief.

Although Alabama charged women with chemical endangerment before Roe’s fall, Sussman said, the Dobbs decision “further opens the door” to the concept of fetal personhood, in which legal rights are extended to fetuses or even embryos.

Fetal personhood has been recognized through judicial decisions in the three states — Alabama, Oklahoma and South Carolina, according to an analysis by Pregnancy Justice — accounting for the most prosecutions in the group’s count.

“This ideology around giving rights to embryos and fetuses is not theoretical,” Sussman said. “It has real-world implications, devastating implications for the rights of pregnant people.”

Sussman noted that in 15 states during the 2024-25 legislative cycle, bills were introduced that would create or allow homicide charges for people who have abortions. None became law, but attempts persist. On Wednesday, a committee in the South Carolina Legislature is scheduled to hold a hearing on a total abortion ban bill that would allow homicide charges for some abortions.

Sussman acknowledged the troubling number of maternal deaths from overdoses and said the crisis should be treated as a public health priority, rather than a criminal matter.

Johnson sees it that way, too. She said she’s determined to stay clean and feels she has found her purpose. Still, “I have to fight every day,” she said. Addiction is “always doing pushups in the back, just waiting on me.”

This article was originally published on NBCNews.com