'A Problem that Needs a Scalpel, and all I've got is a Machete': Prosecutorial Innovation and the Criminalization of Pregnancy

Throughout the United States, pregnant women have been charged with committing crimes against their own pregnancies, often in the absence of criminal law concerning pregnancy. County prosecutors have led this effort, pursuing punitive responses to a perceived social problem of epidemic proportions-- substance abuse among pregnant women. In Alabama and South Carolina, these efforts led to the formal criminalization of certain actions taken by pregnant women-- actions that, but for the fact of the pregnancy, would not be considered crimes. In this paper I present my analysis of interviews with prosecutors from Alabama and South Carolina who led the effort to prosecute pregnant women. I discuss the origins of the practice and the stated goals and motivations to pursue punitive solutions, finding that prosecutors are driven by trends in racialized drug “epidemics” and a belief that the threat of punishment will push pregnant drug users to cease drug use. I also discuss prosecutorial strategies for charging pregnant women in the absence of codified law addressing pregnancy and crime. I find that prosecutors are primarily driven by a desire to use their limited set of tools to address what they perceive as a catastrophic social problem—one that not only threatens appropriate notions of good motherhood, but that also threatens to produce generations of flawed children. With cooperation from health care providers and ideological alignment with judges, prosecutors can essentially create the law. I conclude by discussing the socio-legal implications of these developments, including the disproportional impact of these laws on the most marginalized women, the impact on women’s legal personhood and constitutional rights, and the legitimacy of the law.