It is clear that the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization will make it harder for women to get an abortion across much of the United States. But there are other types of laws – not related to abortion – that already govern the decisions women make during pregnancy.
In this scenario, a state concludes that a pregnant woman’s behavior, which is mostly related to drug use, may harm the fetus they carry. These women are then forced into compulsory treatment or jail. Most of the women affected by these laws are poor, and excessively Black or Latina.
I am a law professor studying poverty policy in the USA. I think this is the key to understanding that the Dobbs ruling not only allows state legislators to limit women’s ability to get an abortion, but it also invites state legislators to pass more laws governing pregnancy. women’s behavior.
States’ history of punishing women during pregnancy
At least 40 states have used a variety of laws to punish the behavior of pregnant women over the past five decades. These cases usually involve a woman who the state believes harms her fetus by taking drugs or abusing alcohol.
For example, as I describe in my book coming out in September, Tennessee prosecuted and punished about 120 women from 2014 to 2016 for harming the fetuses they wore when they took drugs during their pregnancies.
In total, scholars, journalists and activists have documented more than 1,700 prosecutions and other interventions, such as putting a woman who refuses to enter treatment against pregnant women from 1973 to 2020.
States have prosecuted women in these cases for assault, chemical threat, child abuse and murder.
Although these laws were in most cases originally enacted to criminalize other people’s attacks on pregnant women, prosecutors used these laws to prosecute pregnant women themselves.
While one would think that bringing prosecution and putting women in jail to protect a fetus from her mother’s drug use could be an effective, if extreme, way to protect the fetus, virtually every major medical organization not together.
Research shows that confinement of pregnant women due to substance use is not effective as a deterrent and can in fact harm both the pregnant person and the fetus.
One reason is that there is significant anecdotal evidence that prisons and jails do not have basic antenatal care services. The vast majority of prisons also do not provide adequate health care services for pregnant patients with drug use disorders.
Another reason is that women who know they may be punished if they go to the doctor are likely to avoid the doctor, a result that can harm both mother and child.
Instead, the American Medical Association and other expert groups recommend that the government spend more money on setting up specialized treatment programs for pregnant and breastfeeding women with drug use disorders.
Imprisonment of pregnant women to protect their fetuses
In addition to criminal prosecutions, there are at least two other types of state laws that allow judges to involuntarily commit pregnant women and allow them to go to jail.
First, judges in Tennessee used state law to allow pregnant women on probation when the court had evidence that the woman was using drugs during pregnancy.
As one court staff explained to me, when a criminal court judge finds out that a pregnant woman who is on probation has failed a drug test, the court issues an order placing her in jail. As that particular court worker in Tennessee explained to me in 2018: “Many babies are so saved.”
Second, in Wisconsin, South Dakota and Minnesota, lawmakers have authorized the involuntary commitment, either in medical facilities or in prison, of pregnant women using drugs or alcohol during pregnancy.
For example, in Wisconsin, the state may investigate the welfare of an “unborn child” and may order a woman to comply with drug treatment and services. If she refuses, the court can order that this woman be arrested and sent to jail.
Because child welfare records are confidential, we do not know exactly how many cases like these exist. In one court case, the state of Wisconsin revealed that from 2006 to 2017, 467 women were found to have committed “unborn child abuse,” meaning the state believed these women harmed their fetuses.
Dobbs invites states to pass more laws like this
In one sense, Dobbs has little impact on these kinds of laws. Roe v. Wade and the 1992 case that strengthened his precedent, Planned Parenthood v. Casey, never stopped these prosecutions and interventions, and they would have continued even if the Supreme Court had not reversed these rulings.
On the other hand, it is clear that the Dobbs ruling grants state legislators new licenses to enforce laws in the name of fetal protection.
Before Dobbs, constitutional law balanced the rights of a pregnant woman to control her pregnancy against the state’s legal interest in the fetus.
Therefore, under Roe and Casey, a woman’s interest in controlling her body outweighed the state’s interest in the fetus early in a woman’s pregnancy. As a pregnancy progressed, the balance shifted away from protecting the woman’s autonomy and to protecting the state’s interest in the fetus.
But as Supreme Court Justice Stephen Breyer, Elena Kagan and Sonia Sotomayor explained in their dissenting opinion with the Dobbs ruling, “the court rejects that balance. It says that from the moment of conception a woman has no right to speak. “
So who will look forward to the rights of either the mother or the fetus?
The Supreme Court is clear. As Judge Brett Kavanaugh explained in his unanimous opinion, “those difficult moral and policy questions will be decided” not by the court, but “by the people and their elected representatives through the constitutional processes of democratic self-government.”
After Dobbs, as the disapproving judges explained, it appears that the states have all the power they need to pass and enforce new laws that punish pregnant women, whether they want an abortion or not. .