How Hospitals Helped Erode Reproductive Rights

Filed
12:00 p.m. EDT

03.14.2026

Felony prosecutions sparked by hospital drug testing helped advance the authorized idea that the fetus had pursuits the state might shield.

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In 1988, a nurse on the Medical College of South Carolina in Charleston determined she was fed up. She and her colleagues had grown alarmed concerning the variety of girls coming in to provide delivery who gave the impression to be hooked on crack cocaine. The hospital started drug testing pregnant sufferers — predominantly low-income Black girls — and gathered with native legislation enforcement officers to give you a plan: If the ladies examined optimistic, the hospital would hand them over to police. Quickly, girls, some nonetheless bleeding from childbirth, have been being carried out of the hospital in shackles and chains.

The hospital was removed from alone. Throughout the nation, fervor over “crack infants,” and notably Black girls who birthed them, was reaching a fever pitch. Many feared the emergence of a everlasting underclass of “bodily broken,” biologically inferior youngsters, destined to dwell off welfare rolls, and believed that girls who used crack throughout being pregnant ought to be put in jail for little one abuse. Later scientific research would conclude that the crack child panic had vastly overstated the developmental results of prenatal cocaine publicity, and that lots of the harms initially attributed to the drug have been inseparable from overlapping components like poverty, however the fantasy caught. Hospitals started to extra extensively drug take a look at girls at childbirth, states started requiring hospitals to report optimistic outcomes, and foster care caseloads skyrocketed. By mid-1992, there have been greater than 160 legal prosecutions filed in 24 states, 75% of them towards girls of colour.

These instances didn’t simply search to punish girls. They helped advance a broader authorized precept: The fetus had pursuits the state might shield, usually by taking motion towards the mom herself.

That precept is usually known as fetal personhood — a authorized idea promoted by anti-abortion teams that posits a fetus ought to be handled legally the identical as any particular person or little one.

Initially, larger courts in lots of states dismissed legal instances towards girls. Even some anti-abortion advocates rejected the concept of criminalization — the U.S. Catholic Convention, for instance, argued that girls ought to as an alternative obtain prenatal care and habit therapy, in response to Mary Ziegler in her ebook “Personhood: The New Civil Struggle Over Replica.” However prosecutors in varied states have been vehement about utilizing legal legislation to guard “unborn youngsters.” They have been propelled by leaders within the anti-abortion motion, who noticed the strategic profit in concentrating on girls for whom the general public had little sympathy.

Civil rights attorneys and feminists sounded alarms about the place that logic could lead on. If girls could possibly be charged with a criminal offense for ingesting a substance throughout being pregnant, might legal expenses to be used of nicotine or alcohol throughout being pregnant be subsequent? “There should not sufficient jail cells in South Carolina to carry the pregnant girls who’ve a drug drawback, drink a glass of wine with dinner, smoke cigarettes, fail to take prenatal nutritional vitamins, or determine to go to work regardless of their physician’s recommendation that they need to keep in mattress — all of whom could possibly be responsible of the crime of kid neglect,” legal professional Lynn Paltrow stated on the time.

Paltrow helped file a 1993 lawsuit towards the Charleston hospital, arguing that drug testing girls and reporting them to legislation enforcement violated their Constitutional rights. The lawsuit finally discovered its method to the U.S. Supreme Courtroom, which in 2001 dominated in favor of the sufferers. The Ferguson ruling, because it got here to be identified, barred public hospitals from testing sufferers with out their consent for legislation enforcement functions.

However Ferguson didn’t finish the surveillance of pregnant girls. Over the previous 20 years of the opioid epidemic, extra hospitals started drug testing pregnant sufferers and their infants, sweeping extra households right into a system of punishment and management. Because of state necessary reporting legal guidelines, and barred from reporting girls on to the police, hospitals report instances to little one welfare companies. These companies have change into the principle conduit via which girls are referred to legislation enforcement, our reporting discovered.

In a current Marshall Venture investigation, my colleague Jill Castellano and I discovered greater than 70,000 dad and mom in 21 states who have been referred to police and prosecutors over allegations of substance use throughout being pregnant. Girls have been separated from their youngsters, interrogated or jailed over optimistic drug checks triggered by poppy seeds, over-the-counter medicines and even the fentanyl from their epidurals. The dragnet now reaches far past the crack-era stereotype, ensnaring girls throughout racial and sophistication strains. However the underlying premise stays the identical: Alleged threat to a fetus can be utilized to justify state scrutiny of the particular person carrying it.

In at the very least three states — Alabama, Oklahoma and South Carolina — prosecutions tied to drug use throughout being pregnant have led to judicial rulings in assist of fetal personhood, in response to the authorized advocacy group Being pregnant Justice. In 2020, for instance, Oklahoma’s Courtroom of Felony Appeals dominated that the state’s legal little one neglect legislation utilized to an “unborn little one.”

Now the anti-abortion motion has set its sights on a much bigger aim: Making certain as soon as and for all that the fetus is entitled to equal rights beneath the U.S. Structure. Authorized consultants stated the kid welfare authorities’ referrals to legislation enforcement, and the following legal instances, could possibly be used to assist bolster that argument, which many suppose has a great probability of success if it wends its method to a Supreme Courtroom with a powerful conservative majority.

If that occurs, Paltrow believes the results could be felt far past pregnant girls who use medication.

In a number of states, girls are already restricted from guaranteeing medical choices, reminiscent of getting therapy throughout a miscarriage or a life-threatening an infection throughout being pregnant. They’ve been arrested after stillbirths and miscarriages. They’ve been held chargeable for falling down a flight of stairs, or delaying a Cesarean part, like two of Paltrow’s former shoppers. Quickly, Paltrow advised me, girls could possibly be barred from changing into law enforcement officials or taking different jobs as a result of they could sooner or later get pregnant, which might put their fetus in danger.

“If you happen to had a legislation that stated we’re going to cross an unequal modification that makes it official that girls should not have the identical rights as different folks, I feel folks could be fairly upset,” she stated. “That is the world we’re going to dwell in.”