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Roe v. Wade was overturned in June 2022, but for years before that, the antiabortion movement was trying to restrict and eliminate abortion access through fetal personhood laws. These laws operate on the idea that fetuses have the same rights as any already-born person, therefore equating abortion to murder. But fetal personhood laws don't just influence abortion access, they can also contribute to criminalization of a woman's actions during pregnancy.
A new investigation from The Meteor has highlighted how fetal personhood laws can extend well past abortion access, as in the case of Lauren Smith, a South Carolina woman who has lost custody of two of her three children and faces up to 10 years in prison after being charged with felony child neglect. According to The Meteor, the charge stems from her use of marijuana to treat relentless nausea while pregnant.
According to reporter Neda Toloui-Semnani's story, Smith says she experienced intense nausea during pregnancy, so bad that she needed to be hospitalized multiple times. She started using marijuana to self-treat her symptoms.
After delivering a healthy daughter, Smith says, she was told that she tested positive for THC in a drug screening she says she didn't know was being done, and that her daughter's meconium (an infant's first stool, which retains remnants of things ingested during pregnancy) had also tested positive. That's when she says her daughter was taken from her and placed in the custody of her paternal grandmother. According to The Meteor, this eventually led to another of Smith's children being taken out of her custody. Now, she awaits trial.
Smith is one of a growing number of women who use marijuana during pregnancy, despite the American College of Obstetricians and Gynecologists' recommendation against it. While marijuana use remains illegal in South Carolina, Smith notably wasn't charged with drug-related crimes; instead, she was charged with child neglect. This, Toloui-Semnani wrote, underscores the implications far beyond abortion that antiabortion laws can have.
“Smith’s story shows how the same governments breathlessly passing abortion bans are using related legal theories to police pregnancy,” Toloui-Semnani explained. “This story not only reveals how the same laws that are purported to protect unborn life have destroyed families in the process — and have left mothers, fathers, grandparents, and caregivers to navigate the complex web of social service agencies, law enforcement officers, prosecutors, medical staff, and other agencies alone.”
The Meteor reported that 27 states, as of 2022, have included fetal personhood or personhood-adjacent laws in their post-Roe antiabortion legislation, and that Smith is one of hundreds of women who have been arrested for actions related to their pregnancy.
Earlier this year, The Marshall Project reported on how some states, including South Carolina, are expanding how they use child neglect and abuse laws, prosecuting pregnant women under the umbrella of fetal personhood. The Marshall Project also reported that most states might refer a pregnant woman who uses drugs to a child-welfare agency, not police, and highlighted the potential harm of increasing pregnancy criminalization — including the negative impacts of separating babies from their mothers.
This kind of criminalization, one expert told The Meteor, could increasingly police what pregnant people are and aren't allowed to do in ways that may be surprising. “If you're pregnant and you fall down the stairs, you could be charged with a crime,” Trip Carpenter, a legal fellow with Pregnancy Justice, told The Meteor. “If you're pregnant and you drive without a seatbelt, you could be charged with a crime. If you're pregnant and you have a glass of wine, or you use drugs, you could also be charged with a crime.”
Learn more about Smith and the implications of fetal personhood laws at The Meteor, where you can also see videos as part of The United States of Abortion series coproduced by Firebrand and Obstetricians for Reproductive Justice.
