Abstract

Excerpted From: Wendy A. Bach, Madalyn Wasilczuk and Kendra Hutchens, What’s Dobbs Got to Do with It? Pregnancy-Related Prosecutions in a Post-Roe World, 53 Harbinger 32 (May 6, 2026) (55 Footnotes) (Full Document).

In September 2024, alongside our colleagues at Pregnancy Justice, we published a report entitled Pregnancy as a Crime: A Preliminary Report on the First Year After Dobbs. The report documents the filing of at least 210 pregnancy-related prosecutions against pregnant people in the first year after Dobbs, twenty-two of which involved a fetal or infant demise. We have since published updated preliminary data documenting 102 additional prosecutions in the first two years after Dobbs, for a total of 412 pregnancy-related prosecutions after Dobbs. In the weeks after the report’s release, the most frequent questions reporters asked us were about Dobbs. Virtually every reporter wanted to know if these prosecutions were “because of” Dobbs. In other words, they wanted to know if the Dobbs ruling resulted in an escalation of pregnancy-related prosecutions.

Dobbs resulted in extraordinary harm, but the technical legal answer to reporters’ questions is no. Pregnancy-related prosecutions have been brought against pregnant people for decades. A variety of reporters, researchers, and organizations have documented these pregnancy-related prosecutions. To date, these efforts provide evidence of more than 2,200 prosecutions filed since 1973. Our ongoing study--exploring these prosecutions in the three years post-Dobbs--continues to identify additional cases. These prosecutions are filed regardless of the pregnancy outcome or health of the resulting newborn. Importantly, our report explains that pregnancy criminalization primarily operates outside the realm of abortion law, which primarily criminalizes providers. Indeed, only one of the 412 prosecutions we have documented was brought under a criminal abortion statute.

While the holding in Dobbs is not necessary to support such prosecutions, there is no doubt that it bolstered the legal architecture and social movements that undergird them. Pregnancy-related prosecutions rely on a conception of fetal personhood tied to the anti-abortion movement that continues to gain strength today. The legal architecture supporting these prosecutions is intimately tied to the movement, waged in the decades before Dobbs and built on today, to instantiate fetal personhood in the law. It was the success of that movement, and not Dobbs, that created the legal architecture that underlies the prosecutions. As we said to reporters over and over again, in a world in which the law recognizes fetal personhood, prosecutors do not need the crime of criminal abortion to prosecute pregnancy-related crimes.

Unsurprisingly, these answers did not satisfy the reporters, and quite frankly, they did not really satisfy us. Dobbs, in the cultural ideas it abandoned and the world it licensed, does affect what we are studying.
Roe and its progeny endorsed, however weakly, the principle that the bodily autonomy of pregnant people was, at least in some circumstances, paramount over whatever purported interest society had in that pregnancy. Dobbs abandoned that principle. After Dobbs there is no constitutional bar, at least grounded in the right to privacy, to accuse a pregnant person of a crime committed against her pregnancy based on her conduct during pregnancy. She is, in this sense, transformed from a person who holds rights to autonomy with respect to her body and her pregnancy into a potential perpetrator, ever more suspected of committing a crime against her own pregnancy. It is this shift, both legal and cultural, that matters after Dobbs.

This essay explores the legal architecture and growth of these ideas, both after Roe and after Dobbs, in three parts. It argues that, in an era in which suspicion about pregnancy loss seems to be growing, prosecutions involving pregnancy that target pregnant women may be on the rise, and law enforcement and prosecutors hold the tools they need to charge pregnant women with these crimes. Part I starts with the numbers and the history, summarizing what we know about these prosecutions since 1973. Part II turns to the idea of prosecuting pregnancy-related conduct, drawing a conceptual map underlying these prosecutions and tracing their legal basis. Part III turns to our preliminary data regarding prosecutions involving allegations related to fetal or infant demise and describes why we suspect that prosecuting pregnancy loss is on the rise after Dobbs.

[ . . . ]

It should be clear at this point that long before Dobbs, the fetus was a legible victim of crime, the body of the pregnant person was a legible crime scene, and the pregnant person was a legible perpetrator of that crime. So what’s different after Dobbs?

Both our data and recent events suggest the seeds of an answer. In our preliminary dataset, twenty-six cases involve charges against a pregnant person in which the state alleges that the pregnancy ended in a fetal or infant demise and the charged crime was criminal abortion, some form of child abuse or neglect, or homicide. An additional five cases involved a fetal or infant demise and another charge, often alleging a crime associated with the failure to report a birth or death or the mishandling of human remains. In total, at least thirty-one women were charged with a crime after a pregnancy loss in the first two years after Dobbs. When compared to historical data, this number of pregnancy-related prosecutions involving a fetal or infant demise stands out. Researchers, including the authors of this essay, have identified approximately 200 cases involving a fetal or infant demise over the fifty-two year period beginning in 1973 and ending in the second year after the Dobbs decision. Between 2006 and 2022, Pregnancy Justice identified 120 cases that fit into this category, or an average of 7.5 such cases per year. The thirty-one in our study were all filed in a two-year period between June 24, 2022 and June 23, 2024, suggesting a probable increase in these cases after Dobbs.

There are a variety of factors that limit our collective ability to compare pre- and post-Dobbs data. Chief among them is the fact that our current research project has significantly more resources than any previous study. This allows us to devote far more person-power to identifying pregnancy-related prosecutions. It also affords us various tools, such as statewide data requests, that lead us to discover additional cases. For these reasons alone, we will never know if we have found so many pregnancy-related prosecutions after Dobbs because there are actually more cases or because we are more equipped to identify existing cases.

Despite these clear limitations, we have some reason to suspect that the enhancement of resources and methods may matter less in pregnancy-related prosecutions that involve fetal or infant demise compared to cases in which there is a live birth because of the unique visibility of such cases. In prior studies of pregnancy-related prosecutions and the current one, researchers have relied on press reports, among other methods, to identify cases. This was true in Paltrow and Flavin’s study, in If/When/How’s study of self-managed abortion criminalization, in Grace Howard’s study, and in Pregnancy Justice’s 2023 report. In our study, we also use press searches as one way to locate cases. While, particularly in Oklahoma, Alabama, and South Carolina, charges based on the use of drugs during pregnancy are tragically common, and therefore not particularly notable to the press, charges associated with an adverse pregnancy outcome seem to generate more media attention. Of the thirty-one cases described above, twenty-eight (90.3%) were reported in the press. Similarly, of the 110 cases filed between 2007 to 2023 that involved a miscarriage or stillbirth and were reported by Pregnancy Justice, 103 (93.6%) were covered in the press. While we do not claim that our data are directly comparable to prior studies, given our enhanced case identification techniques, the fact remains that, across studies, the media reports on the vast majority of cases involving fetal or infant demise. This reassures us that the rise in such cases observed in our study is not due to the use of additional case identification techniques, like bulk data requests. For this reason, we believe that there may be more aggressive prosecution of these particular cases after Dobbs.

How prosecutors speak publicly about these cases is also important. In June 2025, Tom Truman, the elected prosecutor in Raleigh County, West Virginia, advised women who miscarry in his state to call 911 and report their miscarriages to the authorities. While Truman himself stated that he would not bring charges when pregnant people miscarry, he reported that other prosecutors in his state seemed willing to do so. Charging decisions, he opined, would depend on various factors. As he explained:

The kind of criminal jeopardy you face is going to depend on a lot of factors .... What was your intent? What did you do? How late were you in your pregnancy? Were you trying to hide something, were you just so emotionally distraught you couldn’t do anything else?

Truman focused, in this circumstance, on the existence of criminal statutes in West Virginia that pertain to the disposal of human remains--statutes similar to those used in four of the cases involving a fetal or infant demise in our dataset.

What’s notable here is the message his statement sends to pregnant people. Truman was not encouraging women who miscarry to call 911 so that they would have access to health services. Instead, in the most generous reading of his statement, he counseled women to call 911 because he wants women to understand that they may be in legal jeopardy for their pregnancy loss. This returns us squarely to the idea of the pregnant person as perpetrator. After Dobbs, pregnancy loss, in West Virginia and beyond, is inherently suspect, and the suspect is the pregnant person herself.

Pregnancy loss may be suspect, but it is also common. The risk of miscarriage--the spontaneous loss of a pregnancy prior to twenty weeks gestation--can range from 11% in individuals with no history of miscarriage to 42% in individuals with three or more prior miscarriages.
Approximately 1% of pregnancies in the United States end in stillbirth, or the loss of pregnancy at or after twenty weeks gestation. Stillbirth rates are twice as high for Black women than white women in the United States, and poor women “face double the risk of stillbirth compared to women with economic means.” These pregnancy losses are often unpreventable. Even when they may be prevented, it is difficult to prove beyond a reasonable doubt the cause of any particular pregnancy loss, despite the impulse to find someone to blame for such an event.

If, as Truman suggests, every person who experiences a miscarriage or stillbirth should immediately report it to the police, whose job it is to investigate crime, and if, as we demonstrate above, the legal architecture for these prosecutions is in place, then all pregnant people are at risk for criminalization. Those who are poor and Black--more vulnerable due to systemic inequality in medical care and the criminal legal system--are most at risk. While inquiries into pregnant people’s wrongdoing related to their pregnancy losses often arise out of bias in the medical and criminal legal systems, these prosecutions are made possible by laws that view pregnancy losses as suspicious--particularly when they occur outside of hospitals. These suspicions subject such losses to coroner and medical examiner investigations, human remains disposal requirements, or reporting requirements that treat pregnancy losses in ways equivalent to other deaths, creating a framework for criminal liability.

In a world after Dobbs, in which women have no constitutional right to bodily autonomy during pregnancy, and in a world where there are multiple legal theories that prosecutors can rely on to paint pregnant people as perpetrators of crimes against their own pregnancies, increased scrutiny of pregnancy loss becomes a gateway to investigation, leading perhaps inexorably toward more charges of the kinds described above. While our data cannot answer this question with certainty, we have reasons to suspect that these prosecutions are on the rise. Dobbs, it turns out, may have quite a lot to do with it.

Professor of Law at the University of Tennessee Winston College of Law and Co-Director of the Appalachian Justice Research Center. 

Associate Professor of Law, University of South Carolina Joseph F. Rice School of Law. To Ada, for making me a mama.

Thank you to our research team and my research assistants, Hailey Alderson, Peyton Little, and Stevon Porcha. Postdoctoral Research Fellow at the Appalachian Justice Research Center, University of Tennessee Winston College of Law. I am deeply grateful to my remarkable co-authors and to our colleagues at Pregnancy Justice. Although we are listed as the authors of that report, we want to acknowledge that the research that led to that report was the product of a collaboration with both Pregnancy Justice and researchers across the country. The Pregnancy Justice team includes Lourdes A. Rivera, President, Dana Sussman, Senior Vice President, Fikayo Walter-Johnson, Senior Research Associate, Michele Ko, Project Manager, and Imaan Khasru, Research Assistant. Sarah Castillo, a PhD student in Sociology at the University of Tennessee, and Laurel Beaty conducted data analysis. Researchers and students at several other universities have worked on the team, locating and analyzing state level data. State level teams in Texas and Alabama worked diligently on collecting cases relevant to the study. The Texas research team is from the University of Texas School of Law’s Sissy Farenthold Reproductive Justice Defense Project at the Rapoport Center for Human Rights and Justice. The team was led by Cristina I. Ramirez, the Project’s Criminal Defense Lead, and Blake Rocap, Project Director. Professor Brittany VandeBerg leads our team at the University of Alabama. Students from multiple institutions also worked on this project. They include, at