Collateral Effects of Overturning Roe v. Wade: Expansion of Criminal Prosecutions and Penalizations Against Pregnant Women

January 13, 2023 by Isabelle Gilges

On June 24, 2022, the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization, effectively ending any federal constitutional protection for the right to abortion.[1] Proponents of overturning Roe emphasized theories of fetal pain and development.[2] These theories provide the foundation for the recognition of fetal rights, whereby protection of the fetus is accorded precedence over a woman’s bodily autonomy. The state law at issue in Dobbs, for instance, specifically made findings about an “unborn human being” in order to justify its restrictive time frame for abortion.[3] The recognition of fetal rights is not far removed from the doctrine in Roe, Casey, and other precedent in this area of law, which balances a woman’s right to bodily autonomy against the state’s interest in protecting “potential life.”[4] While overturning Roe has already affected the ability of women to seek abortions in many states, it has also further legitimized the concept of fetal life and fetal protection at the cost of undermining a woman’s right to bodily autonomy. Further legitimizing fetal rights could serve as justification for expanding the prosecution or penalization of pregnant women who use substances during their pregnancies.

Across the country, many states have laws that aim to protect fetuses from harm while in-utero.[5] State policies regarding alcohol and drug use during pregnancy have become increasingly punitive towards pregnant women over time, ranging from requiring health professionals to report positive drug tests to child welfare authorities to criminal prosecution.[6] Although prenatal drug use may be a legitimate public health concern,[7] research has found that these policies have not only failed to achieve their goals of preventing substance abuse by pregnant women, but have been disproportionately applied to low income women of color.[8]

For example, one study found that despite similar rates of drug use between Black and white women while pregnant, Black women were 10 times more likely to be reported to child welfare agencies for prenatal drug use.[9] These reports can result in “social holds,” whereby newborns are separated from their mothers or removed from their parents’ custody and placed in congregate or foster care settings.[10] The intense disparities between Black and white families and their involvement in the child welfare system is well documented, with Black children being more likely to be reported for abuse and in foster care on average for months longer than other children.[11] Some have referred to the this process of pushing newborns born to poor women of color into the foster care system as the “womb-to-foster-care pipeline.”[12] Reporting to child welfare is one of the most common state policies regarding prenatal drug use, despite studies demonstrating that drug-exposed newborns do better when allowed to remain with their parents as opposed to foster care or physical separation,[13] and that children in foster care tend to have worse outcomes than other children.[14]

Other states have responded to prenatal drug use with criminal prosecution. While federal and state laws explicitly protecting fetuses from harm sometimes exempt pregnant women from prosecution, many states do not explicitly do so and have prosecuted women for harm to their fetuses caused by drug use.[15] South Carolina is one prominent example.[16] In Whitner v. State, the South Carolina Supreme Court denied postconviction relief for a mother convicted of criminal child neglect after her newborn tested positive for cocaine.[17] The court reasoned that the child endangerment statute included a viable fetus.[18] A few years later in State v. McKnight, the South Carolina Supreme Court applied this reasoning to affirm a 20-year prison sentence for a woman who was convicted of homicide after suffering a stillbirth which was believed to be linked to her cocaine use during pregnancy.[19] This conviction was eventually overturned years later after McKnight sought postconviction relief, on grounds that her counsel had failed to introduce evidence tending to weaken the link between her drug use and her stillbirth.[20] At least one other state has used South Carolina’s reasoning to justify criminal prosecution against women who use drugs while pregnant.[21]

The issue with punitive policies like those identified above is that they fail to adequately address drug use by pregnant women. Many states have limited substance use treatment programs that will accept pregnant women.[22] As of 2010, only 19 states offered drug treatment programs for pregnant women.[23] Women on Medicaid may also be denied access to drug treatment programs during their pregnancies.[24]

Additionally, these policies deter women from seeking prenatal care and sharing important information with their physicians.[25] Many low-income women of color fear that if they share their drug use with their physicians, they will be subject to a child welfare investigation and possibly lose custody of their child upon birth.[26] Failing to seek prenatal care altogether can be detrimental for the woman’s and the newborn’s health.[27]

The justification for these punitive policies often follows the same line of reasoning that states attempting to challenge Roe rely on: the need to protect fetal life. In fact, one study found that while punitive state policies for alcohol use during pregnancy were not associated with policy effectiveness, states with more punitive policies were more likely to have more restrictive reproductive rights policies.[28] The researchers of this study posited that this data suggested that the primary goal of pursuing these punitive policies was to restrict women’s reproductive autonomy, rather than to actually reduce alcohol use or alcohol-related harm to the fetus.[29]

Fetal protectionism was a prominent theme throughout many of the amicus briefs and the oral argument for the state in Dobbs v. Jackson Women’s Health.[30] Many briefs advanced arguments justifying restricting the right to abortion or doing away with the viability line on theories of “fetal pain” and development.[31] At oral argument, the attorney for the state repeatedly spoke of fetuses as “unborn children” and “unborn girls and boys.”[32] This rhetorical move seeks to justify the restriction of a pregnant woman’s autonomy. As Julie Ehrlich declared in her piece “Break the Law by Giving Birth: The War on Drugs, The War on Reproductive Rights, and The War on Women,” “the more rights accorded to a fetus, the fewer remain for the woman who carries the fetus.”[33]

The connection between a woman’s reproductive autonomy and the penalization of prenatal drug use was not absent from the arguments in Dobbs. Justice Thomas emphasized the relationship between bodily autonomy and prenatal drug use on two separate occasions during arguments, asking counsel for Jackson Women’s Health Organization at one point “whether or not [a woman] has a right also to bodily autonomy in the case of ingesting an illegal substance and causing harm to a pre-viability fetus.”[34]

Dobbs allows states to justify the restriction of abortion on their theories of fetal pain and development, thereby allowing notions of fetal life to take precedence over a women’s right to bodily autonomy. The arguments and rhetoric advanced by the state and amicus that emphasize fetal protection can be used to further expand fetal protection laws that penalize and prosecute women for their actions while they are pregnant. For example, Texas passed one of the most restrictive abortion laws in the country in May 2021, banning abortions after six weeks and deputizing private citizens to report anyone who obtain an abortion.[35] Subsequently, a woman was charged with murder and taken into custody for a self-induced abortion, despite there being no law in Texas that explicitly criminalized self-induced abortions.[36] This case demonstrates that when fetal protection takes precedence over reproductive autonomy, the state becomes more willing to punish and criminalize actions taken by pregnant women.

Policies that seek to address prenatal drug use should be focused on helping pregnant women or new mothers seek treatment or care, rather than on criminalization and family separation. Relationships between pregnant women and their physicians should be premised on trust, so that pregnant women can feel safe to share pertinent medical information and seek prenatal care without fear that doing so will result in their child being removed from their custody upon birth.

Overturning Roe fundamentally shifts how we understand pregnant women’s autonomy and further normalizes the criminalization of women who use substances while pregnant. Because current policies regarding prenatal drug use already disproportionately target and are applied against low-income women of color, the normalization and expansion of these policies will likely be felt most strongly by these women, who already face higher rates of family separation[37] and may be least able to access drug treatment programs.[38]



[1] Dobbs v. Jackson Women’s Health Organization, Ctr. for Reprod. Rts, (last visited Apr. 28, 2022).

[2] See Brief of Amici Curiae the Roman Catholic Diocese of Jackson & the Roman Catholic Diocese of Biloxi in Support of Petitioners at 2-3, Dobbs v. Jackson Women’s Health Organization, (U.S. argued Dec. 1, 2021), No. 19-1392; (2021); see Amicus Brief of the American Center for Law and Justice in Support of Petitioners at 8, Dobbs v. Jackson Women’s Health Organization, (U.S. argued Dec. 1, 2021), No. 19-1392; (2021); Brief for the States of Texas et al. at 1-2, Dobbs v. Jackson Women’s Health Organization, (U.S. argued Dec. 1, 2021), No. 19-1392; (2021).

[3] Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228, 2243-44 (2022).

[4] Roe v. Wade, 410 U.S. 113, 150 (1973).

[5] Andrew S. Murphy, A Survey of State Fetal Homicide Laws and Their Potential Applicability to Pregnant Women Who Harm Their Own Fetuses, 89 Ind. L.J. 846, 849, 853 (2014).

[6] Sarah C.M. Roberts et al., Forty Years of State Alcohol and Pregnancy Policies in the USA: Best Practices for Public Health or Efforts to Restrict Women’s Reproductive Rights?, 52 Alcohol and Alcoholism 715, 720 (2017); Sue Thomas et al., Drug Use During Pregnancy Policies in the United States from 1970 to 2016, 45 Contemp. Drug Probs. 441, 442, 452-53 (2018).

[7] There is some debate about the extent to which drug use actually causes long-term harm to children, but generally many agree that drug use during pregnancy is not ideal for fetal health. See Dorothy Roberts, Torn Apart (2022); see also Jessica M. Boudreaux & John W. Thompson, Jr., Maternal-Fetal Rights and Substance Abuse: Gestation Without Representation, 43 J. Am. Acad. Psychiatry L. 137, 138 (2015).

[8] Roberts, supra note 6, at 719; Thomas, supra note 5, at 454; Roberts, supra note 7.

[9] Ira J. Chasnoff et al., The Prevalence of Illicit-Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida, 322 New Eng. J. Med. 1202, 1202 (1990).

[10] Roberts,  supra note 7; Emma Ketteringham et al., Healthy Mothers, Healthy Babies: A Reproductive Justice Response to the “Womb-to-Foster-Care Pipeline, 20 CUNY 77, 79 (2016).

[11] See Ketteringham, supra note 9, at 89-92; see Roberts, supra note 7; see Dorothy roberts, Shattered bonds: The Color of Child Welfare 16-22 (2002).

[12] See Ketteringham, supra note 9, at 81.

[13] Id. at 118 n.156.

[14] Id. at 98.

[15] Murphy, supra note 4, at 850, 852-53.

[16] Id. at 860-861; Rebecca Stone, Pregnant Women and Substance Use: Fear, Stigma, and Barriers To Care, Health & Just., at 1-2.

[17] Whitner v. State, 492 S.E.2nd 777, 783, 786 (S.C. 1997).

[18] Id. at 785.

[19] State v. McKnight, 576 S.E.2nd 168, 174, 176 (S.C. 2003).

[20] Stone, supra note 15, at 2.

[21] Id.; Ex Parte Ankrom, 152 So.3d 397, 405 (Ala. 2013).

[22] Stone, supra note 15, at 3.

[23] The American College of Obstetricians and Gynecologists, Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician-Gynecologist 2 (2011),

[24] Julie B. Ehrlich, Break The Law By Giving Birth: The War on Drugs, The Was on Reproductive Rights, and The War on Women, 32 N.Y.U. Rev. Soc. Change 381, 383 (2007).

[25] Movement for Fam. Power et al., Family Separation in The Medical Setting 6 (2019); Kelley Fong, Concealment and Constraint: Child Protective Services Fears and Poor Mother’s Institutional Engagement, 97 Soc. Forces 1785, 1993, 1797-98 (2019); Stone, supra note 15, at 13.

[26] See Stone, supra note 15, at 13; Fong, supra note 25 at 1793.

[27] Prenatal Care, Off. on Women’s health, U.S Dep’t of Health & Hum. Serv.,,when%20they%20see%20mothers%20regularly (last accessed Apr. 29, 2022) (“Babies of mothers who do not get prenatal care are three times more likely to have a low birth weight and five times more likely to die than those born to mothers who do get care.”).

[28] Roberts, supra note 6, at 719-20.

[29] Id. at 720.

[30] See Brief of Amici Curiae the Roman Catholic Diocese of Jackson, supra note 2 at 2-3; see Amicus Brief of the American Center for Law and Justice in Support of Petitioners, supra note 2 at 8; see Brief for the States of Texas et al. supra note 2, at 1-2.

[31] See Brief of Amici Curiae the Roman Catholic Diocese of Jackson, supra note 2 at 2-3; see Amicus Brief of the American Center for Law and Justice in Support of Petitioners, supra note 2 at 8; see Brief for the States of Texas et al. supra note 2, at 1-2.

[32] Transcript of Oral Argument at 5, Dobbs v. Jackson Women’s Health Organization, (U.S. argued Dec. 1, 2021), No. 19-1392 (2021).

[33] Ehrlich, supra note 23, at 382-83.

[34] Transcript of Oral Argument, supra note 31, at 49-50, 103.

[35] Shannon Najmabadi, Gov. Greg Abbott Signs Into Law One of The Nation’s Strictest Abortion Measures, Banning Procedure as Early as Six Weeks Into A Pregnancy, The Tex. Trib. (May 19, 2021),

[36] Assoc. Press in Rio Grand City, Texas Woman, 26, Charged With Murder Over ‘Self-Induced Abortion’, The Guardian (Apr. 9, 2022),

[37] Roberts, supra note 10, at 16-17.

[38] Ehrlich, supra note 23, at 383.