OK represents nearly one-third of pregnancy-related prosecutions a year after Dobbs

Oklahoma had the second-highest number of pregnancy-related prosecutions nationwide in the year after Roe. v. Wade was overturned, according to a new study by the advocacy organization Pregnancy Justice.

From June 24, 2022, to June 23, 2023, there were at least 210 pregnancy-related prosecutions in the U.S. This is the highest number of these prosecutions documented in a single year. Oklahoma trailed Alabama, at 68 prosecutions.

The report notes its total might represent an undercount, as the research team is still uncovering cases from this period. It also notes the team had more resources to uncover cases, meaning they could identify more cases than in past years.

A majority of these defendants nationwide are low-income, and their charges commonly allege a form of child abuse, neglect or endangerment. Prosecutors overwhelmingly charged pregnant people with offenses that did not require proof the pregnant person harmed a fetus or infant.

Janet Levit, a University of Tulsa law professor, teaches a reproductive rights practicum alongside the O’Neill Institute for National and Global Health Law at Georgetown University Law Center. It partners with local and national organizations to work on developing projects to teach students about reproductive rights and justice.

Levit saw outreach from Pregnancy Justice, which was seeking support in identifying cases of criminalization in pregnancy. She contacted professors involved in the research and offered her students to look into these cases.

From there, her students reviewed reporting from outlets like The Frontier to identify cases. They searched electronically for cases and requested charging documents and other public records documenting these criminal child neglect charges. That data was sent to Pregnancy Justice.

Levit said Oklahoma has created the conditions for these prosecutions by being a state that applied its criminal child neglect law to an “unborn child.” While the original statute did not include that term, Oklahoma’s Court of Criminal Appeals ruled in 2020 in State v. Green that pregnant people can be charged with child neglect for using drugs during pregnancy. The ruling used the term “unborn child.”

“I concur in the Court’s conclusion that acts of illegal drug exposure against an unborn human offspring may be prosecuted as child neglect under 21 O.S.Supp.2014, section 843.5(C),” a concurring opinion in the case read. “The Legislature removed all reasonable doubt of the State’s policy when it amended 21 O.S.2011, § 691(B) to define the phrase “human being” to include an “unborn child.”

Levit said an example of a charge one might see in Oklahoma relates to a pregnant person using a substance while pregnant. In the cases her practicum looked at, some were illegal substances, some were controlled but legal, and several of the pregnant people had legal medical marijuana cards.

But, when their babies were born and their meconium — or the newborn’s earliest stool — was tested, traces of substances like marijuana, methamphetamine or opioids were found. She said the majority of cases they saw had a relationship to marijuana.

From there, the results somehow get to law enforcement. Levit said they’re still trying to figure out how this happens.

She said law enforcement often doesn’t use drug or substance laws, but instead looks at criminal child neglect. Pregnant people have been charged even after giving birth to healthy babies.

She said they believe many of these people will enter plea agreements.

“The consequences are that they often have their children taken away from them … and this does not seem to be positive for families in Oklahoma,” Levit said.

Additional consequences from these charges extend to other people experiencing addiction. Levit said those who want to treat their addiction might become hesitant to request help if they’re pregnant or concerned they could be pregnant.

“If a woman who’s pregnant is fearful that her use of substances will be discovered, either through prenatal care or through giving birth in a hospital, that woman is probably not going to access prenatal care, which, again, is not healthy for the child, and also may try to deliver at home, as is described in the report,” Levit said. “So, it just creates a huge disincentive.”

Levit said she’s concerned about how the criminalization of pregnancy intersects with Oklahoma’s incarceration of women — a rate that stands out nationally. It’s all the more concerning to her as the fetal personhood movement continues to gain traction in a state that already has several statutes on the books recognizing it.

During the last legislative session, the Oklahoma legislature considered House Bill 3002, which would have extended rights to a woman’s unborn child, saying it could also be a victim of battery, and aggravated assault and battery. The bill died before it reached the Senate floor.

Some lawmakers expressed concern about the potential impacts it could have on fertility treatments, saying an unlawful use of force could apply in situations where damage occurs to an embryo during treatments. This conversation came not long after legislation in Alabama that caused fertility clinics to shut down because they feared lawsuits or criminal prosecution.

“Just because that battery law did not make it through doesn’t mean that we don’t have several laws on the books, which already recognize some degree of prenatal personhood. … This could be a slow path or incremental path to full-blown prenatal personhood in Oklahoma,” Levit said.

This article was originally published by StateImpact Oklahoma. StateImpact Oklahoma is a partnership of Oklahoma’s public radio stations which relies on contributions from readers and listeners to fulfill its mission of public service to Oklahoma and beyond.

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