North Carolina legislators are moving forward with a proposal to criminalize pregnancy and allow charges to be brought against pregnant people who engage in behavior deemed risky for the fetus.
The bill, SB 297, states that a woman may be prosecuted for assault for illegally using narcotics while pregnant, or if the baby “is born addicted to or harmed by the narcotic drugs.”
So-called fetal harm or homicide laws allow criminal charges to be brought against people who do things that are deemed harmful to an unborn fetus. Such laws recognize the fetus as a legally protected person and create penalties for harming that fetus, either through the assault of the pregnant person or through any other action deemed risky for the fetus.
Many states have used fetal harm laws to bring charges against the pregnant person herself, for actions she’s undertaken, like using drugs.
Thirty-eight states have fetal homicide laws, according to the National Conference of State Legislatures.
These laws can and do lead to the imprisonment of pregnant people. In July 2014, for example, a pregnant Wisconsin woman was put in jail after she disclosed to hospital workers that she had used drugs. The woman was held in jail for 17 days without prenatal care.
A Tennessee judge added an additional six years to a woman’s sentence because she had committed the crime, conspiracy to manufacture methamphetamine, while she was pregnant. The woman was sentenced to serve 151 months in prison.
Despite conservative lawmakers’ moves to criminalize pregnancy, medical professionals and advocates contend that “fetal harm” laws actually do harm themselves.
Following the Tennessee woman’s sentencing, a coalition of reproductive justice and drug policy reform advocates sent a letter to Attorney General Eric Holder asking the Department of Justice to renounce enhanced criminalization.
“Rather than suggest that punishment is an appropriate response to pregnant women and drug use, the DOJ should have policy consistent with positions taken by leading medical experts and organizations,” the letter states. “These groups unanimously recognize that threats of arrest and punishment do not protect children, but do increase risks of harm to maternal, fetal and child health by deterring women from seeking prenatal care and speaking openly about their health problems.”