Pregnancy Criminalization, Surveillance, and the Child Welfare System

Pregnancy criminalization—often rooted in fetal personhood laws and anti-drug sentiment—has a long history and applies criminal suspicions to those who have pregnancies resulting in miscarriages or stillbirths. Lourdes Rivera, President of Pregnancy Justice and Dr. Dorothy Roberts, professor of Africana Studies, Law, and Sociology at the University of Pennsylvania and author of Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World, sit down to talk with us about pregnancy criminalization, the child welfare system, and how Roe’s overturning further impacts rates of criminalization. 

Themes of compelling people to give birth, the separation of families, and the criminalization of pregnancy reaches back to the United States’ slavery era. Pregnancy criminalization heavily unfolded during the U.S.’ crack cocaine epidemic in the 1980s, disproportionately targeting Black women and turning a public health matter into a criminal one. These reproductive liberties, which have been consistently attacked throughout U.S. history, are further constrained with the repeal of Roe. Mandatory reporters within the current child welfare system are much more likely to report Black women to child protection authorities, as well as impoverished patients.

Links from this episode

Dr. Dorothy Roberts on X
Pregnancy Justice on Facebook
Pregnancy Justice on X
Torn Apart: How the Child Welfare System Destroys Black Families--And How Abolition Can Build a Safer World
Killing the Black Body: Race, Reproduction, and the Meaning of Liberty
The Rise of Pregnancy Criminalization: A Pregnancy Justice Report
Post-Dobbs, the U.S. is Out of Step with Liberalizing Abortion Laws Around the World

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Transcript

Jennie: Welcome to rePROs Fight Back, a podcast on all things related to sexual and reproductive health, rights, and justice. [music intro] Hi rePROs! How's everybody doing? I'm your host Jennie Wetter, and my pronouns are she/her. So y'all, I'm so excited for y'all to hear this week's episode. I am just beyond excited. It is an amazing, amazing conversation that is a- you just don't wanna miss it. But I'm just also gonna flag- let's do like a number of trigger warnings up top so I understand you need to like, take these into account before you listen because it does get into a lot of heavy topics. So, we're gonna talk about pregnancy criminalization. We are gonna talk about the child welfare system. We do talk about intimate partner violence briefly. There are a number of issues to think about if you were in the head space to listen to this episode today. And if you're not, come back when you're in a better place. And if you're never okay to listen to these topics, we'll see you in our next episode. But just wanted to flag that up top that it is a bit of a heavy episode, but it is also just an utterly wonderful conversation. So, let's just go right into the episode because it's long and you don't need to hear about what I've been up to 'cause it's nothing exciting. First, we have Lourdes Rivera with Pregnancy Justice, who is gonna focus on the part on pregnancy criminalization. They have a great report that came out late last year looking at pregnancy criminalization between Roe and Dobbs. And it's a really great report that you should definitely check out. We'll make sure to include links in our show notes. And then also we have Professor Dorothy Robertson to talk about the family welfare system. And y'all, she is just utterly amazing. You should make sure to read her books. I read Killing the Black Body several years ago, and it has stuck with me since then. And I just finished her newest book Torn Apart, and I expected it is gonna stick with me for a very long time. I cannot recommend the two books enough. We'll have links to a bookshop link for both of them in our show notes. Definitely check them out. But yeah, all of the things, the report and the books are—I cannot recommend them all enough. So, let's just go straight into my conversation with Lourdes and Professor Roberts. Hi Lourdes. Hi Dr. Roberts. Thank you so much for being here today.

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Lourdes: Very excited to be here.

Dorothy: It's wonderful to be here. Please call me Dorothy.

Jennie: Wonderful. Okay, so let me have you introduce yourselves for a second so that our audience knows who's talking. Lourdes, do you wanna go first and include your pronouns?

Lourdes: Sure. My name is Lourdes Rivera. I go by she, her and ella, and I'm president of Pregnancy Justice.

Jennie: Wonderful. Dorothy, do you wanna go?

Dorothy: I'm Dorothy Roberts. I'm a professor of Africana Studies, Law, and Sociology at the University of Pennsylvania. I also am director of a program on Race, Science, and Society at Penn. And I go by she/her/hers.

Jennie: Wonderful. I am so excited to have the two of you here today, and we're gonna talk about some stuff that I think people might not necessarily connect in their minds but are very much interrelated—pregnancy criminalization and the child welfare system. And I think before we get to where we are now, it's really important that we take a step back and look into the history. So, who wants to go first? Do you wanna go Lourdes? You look like you're ready.

Lourdes: Yeah, I can start with the history of pregnancy criminalization and I'm sure there's a much longer history to this. But I'm gonna start from the point of Roe. In reaction to Roe, in reaction to the gains made by the Women's Rights Movement, the Civil Rights Movement and the LGBTQ Liberation Movement, so, you know, there was a backlash to this, and one of those is these attempts to create personhood rights for fetuses under the 14th Amendment. So, there was some early attempts to doing that. And when that failed, the shift was to create fetal personhood, legal fetal personhood in state law in as many places as possible. So, it was kind of slow at first, but then it started to gain traction. And it was under those laws that we started to see pregnant people being criminalized for harms or perceived harms to their own pregnancies or their pregnancy outcomes. If they, whether it was a miscarriage or stillbirth, they became criminally suspect and were investigated and charged. So, we started seeing this, and then there was a clash with the crack cocaine epidemic which provided an opportunity for opponents to really disparage black women and their babies and claim, make a lot of claims that were not scientifically substantiated, but then it allowed the criminalization of Black women, mass incarceration of Black women and putting their children in the foster care system, which is where Professor Roberts made that observation and connection, right? So, so this, so these fetal personhood laws then also contributed as they were building towards the overturning of Roe because if you're harming fetuses, it adds to the argument of why you needed to overturn abortion rights. But criminalization has been escalating over time, leading up to and beyond the overturning of Roe. So, I will pause there.

Dorothy: Yeah. One way of seeing the connection between the criminalization of pregnancy and the foster system, the child welfare system, what I call a family policing system, is my own discovery of the racism of both of these practices in my work. So, in the late 1980s, early 1990s, when I began my career as a law professor, I started in 1988. My very first research project was a project investigating the prosecutions of Black women for being pregnant and using drugs. And this was really the beginning of the criminalization of conduct during pregnancy, or I think a better way of putting it is criminalization of pregnancy for certain kinds of conduct. Before then, it was very rare for pregnant people to be prosecuted for crimes, if at all, based on their pregnancy. And with the combination of the myths that Lourdes has talked about, about crack cocaine, the crack baby myth, the myth of the pregnant crack addict who was deprived of maternal instinct—this was an excuse for prosecutors to begin punishing pregnant people. And it began with targeting Black women. So, I think it's very important to note that it was this intersection of racism and sexism and punishment for drug use that created this opportunity to turn a public health issue into a crime. And it was my looking into this, opposing these prosecutions that led me to discover the racism of the family policing system because not only were Black women being prosecuted for being pregnant and using drugs, many more of them, thousands upon thousands of them were having their newborn babies taken from them. In fact, at the time they were called "border babies" because there was, there was so many taken from there, there weren't enough places to put them, there weren't enough foster homes, so they were just lying in hospitals totally mistreated after being taken from their mothers who were blamed for the medical neglect that actually was being performed by the state against these babies. And I began to look into what is commonly called a child welfare system but discovered that it was a system that was targeting Black mothers and their children. And I began my research in Chicago where nearly all the children taken from their homes were black children. And nationally at that time, in 2000, Black children were the largest group of children in the foster system. Now, even though they were a minority of children in the United States, four times as likely to be removed from their homes as their- as white children. Now, it's interesting you ask about the history of this. Of course, we could do a whole podcast just on the history. But one significant aspect of the history I'd like to highlight is that we can trace both of these practices criminalizing pregnancy and family separation, especially targeting Black people to the institution of slavery. Because during the slavery era, Black women were forced to have children. And of course, their reproductive labor was essential to the institution of slavery because they produced children who were automatically, from the moment of conception, deemed to be owned by the slave holder. And the idea that the law can compel people to give birth, I think originates in this reproductive violence against Black women. And at the same time, because they were deemed to be the property of enslavers, they had no authority over their children. Black people who were enslaved were considered to be under the total authority and supervision of white enslavers so that their families could be separated for any reason to pay off a debt, to punish them, to give a gift of a child to a relative or a friend. Any reason that the enslaver had could be grounds for separating families. And families were routinely separated. So both the compulsion of people to give birth and the separation of families and the criminalization of pregnancy, you know, I begin my book Killing the Black Body with the observation that during the slavery era, Black women were punished, who were pregnant, were punished, often with the slave holder digging a hole in the ground. So, they would lie in the hole to protect the fetus from harm when the mother was beaten. And that, I think also represents, as Lourdes was saying, the punishment of pregnant people for the sake of the fetus, you know, while protecting supposedly the fetus from harm. And all wrapped up in these terrible stereotypes about Black people not really caring for their children, needing supervision of their parenting. I mean, these stereotypes have fueled both unjust reproductive health policies, criminalizing pregnancy, criminalizing abortion, and justifying separation of families. They're all connected, and Dobbs makes them even more connected because of now the idea that there's no protection in the US Constitution for any of these reproductive liberties we should have and erasing at least the limit of viability so that pregnant people are vulnerable to prosecution and other forms of punishment at any point during pregnancy.

Jennie: That's so much to take in. And all I could think of is I think people might not may miss today, like, how prevalent that "crack baby" narrative was back in the day. Like, I was really young when that was happening, and I still remember it getting to me as, like, a very young person and like it was just in the air. It was everywhere having that conversation.

Lourdes: If I can just add to that, I grew up in Bed-Stuy, Brooklyn, which was one of the ground zeros for- not just the crack epidemic, but the police response. So, it was not met with harm reduction, it was met with surveillance and policing and violence. You know, and it was not met with investment in economic opportunity for young people. So, I had, I mean, I remember girls that I went to Girl Scouts with just disappeared from my community overnight, right? So, and as a kid, I didn't understand all of the reasons why my peers were disappearing. It was a way for young people to just disappear from communities, for parents to disappear from communities. And we're seeing it. We're seeing this again. And the irony of this is also that in our research, between Roe and the Dobbs decision, we have found at Pregnancy Justice in our research, 1,800 cases of pregnancy criminalization, the majority of that being in the last 15 years prior to Dobbs. So, triple the amount of cases in the last 15 years as compared to the prior 30 years. So, this has been an accelerating phenomenon. And the irony of this is that the War on Drugs that was visited on black people is still being visited on black people, but it's even being visited even more on poor white people. So, the majority, the overwhelming majority of people who are being criminalized right now in pregnancy or because of pregnancy are poor white women. So, this is a crime of poverty and race. And people really need to realize that, that nobody, nobody is exempt from this. Once the machinery is built, it can be wielded against any vulnerable group. And so, it's really important not to buy into the stereotypes and the justifications of targeting different groups of people with surveillance, punishment and control, because it can come for you as well.

Dorothy: Yeah, I think it's often the case that these punitive machineries begin by targeting the most stigmatized people, which are typically Black women. As I said, the beginning of the prosecutions for being pregnant were targeted against Black women. The majority, in the late 1980s, early 1990s of prosecutions were against Black women. And of course, you know, if we go back to the roots of the ideologies around this, that it is justifiable to control people just because they're pregnant, the roots in slavery. These ideas that are fueled by racism and the very intense stigmatization of Black people then puts into place holdings and acceptance of violence and criminalization against pregnant people that then is as Lourdes is saying, can spread beyond Black women. And so I think it's very important to see how these ideas themselves are so rooted in racism and sexism and the kind, the valuation of impoverished people, people with disabilities, to put into place the kinds of precedents and structures and systems and ways of thinking that can lead to mass criminalization of, as Lourdes says, it could spread to any vulnerable marginalized group. And that's exactly what's happening.

Jennie: So, my next question was actually gonna be focused on the different types of things we're seeing in pregnancy criminalization. Maybe you can work that into the answer a little bit, but I think I actually wanna change it a little bit because it has me thinking about how these people are getting reported. And I think it's in both cases. So, maybe let's start with you, Dorothy, on like, where we're seeing some of these reportings come from, because I think that is really striking in both cases.

Dorothy: Both the criminalization of pregnant people and their involvement in the family policing system—both depend on reporters. In the family policing system, there is a whole network of professionals who come in contact with children called mandated reporters, who are told they must report their suspicions of child maltreatment to state authorities, either the police or child welfare authorities. And this is another connection between criminalization of pregnancy and the family policing system because the child welfare, federal child welfare law requires that states report and look for, identify and report children who are considered to be maltreated because of their exposure to drug use in the womb. This is both a basis for criminalizing them and for investigating them for child maltreatment under the civil child welfare system. And it also is a result of this focus on treating the fetus as an already-born child whose value is above the pregnant person's value. And so, who are these reporters? Well, they are, again, professionals like teachers and doctors, police officers, child welfare workers, and other social workers. One group that we can focus on for both of these are doctors, doctors and nurses and other hospital staff who are deciding who to test, first of all, for drug use, which pregnant people, which newborns and whether they're gonna report it. And here is where, again, racism and classism come together because they are more likely to report Black women to child protection authorities. And they are also much more likely to report impoverished patients than wealthy patients. I often say when people say, well, we have to have mandated reporting, how will we keep children safe? And I point out we really don't have mandated reporting because wealthy white patients are rarely reported, you know, for any reason, including drug use or other substances deemed harmful to a fetus. Rarely reported to either the police or to the child welfare system. So, that's just one area of reporting that we know is discriminatory, biased. And also where hospitals' staff are, and I think we could say this about any professional who is dealing with children, instead of the focus being on providing resources and treatment and care to these people who are patients and clients of the professionals, they're turning them in to state authorities and to systems, carceral systems—which I include the child welfare system as one of them—that are harmful to children. It's really one of the most despicable aspects of these systems is that people who are trained to provide care instead of doing that are becoming agents of surveillance, reporting and punishment in ways that are harmful instead of caring and supportive. So, that's just one piece of it. And Lourdes, I'm sure you have more to say about, about this.

Lourdes: Yeah, I would just like to add that in our research we found that 32 and half percent of the arrests were instigated by a medical professional. So, within those, well, the data, the more recent data set, the 1,400 cases, so close to a third of them were instigated by a medical professional. And then another 43 or so percent were instigated by a family regulation worker. So, what Professor Roberts is saying is absolutely right. And you know, there's this idea that only poor people and only people of color use drugs when we know that is absolutely not the case. But it is absolutely who is being surveilled, who is being tested without informed consent, who is being reported. And it's extremely harmful because if you're, if you're gonna get reported and locked up in your children taken away in a healthcare setting, well, you're gonna avoid that healthcare setting. And of course, the number one mitigating factor for good healthy outcomes is actually to get prenatal care, to get substance use treatment if you have a substance use disorder. And by the way, there are very few and far between substance use disorder treatment programs for pregnant people. And OBGYNs are not appropriately trained. They're not appropriately trained to care for patients with substance use disorders. So, the answer is that the carceral system, which has been the case since the eighties and nineties, there still are insufficient programs and appropriate treatment slots for pregnant and parenting people. That has not changed, but there's been just this continuous investment in the punitive system rather than the harm reduction and treatment system. So, that has not changed. Those are continuous patterns. And then the other way to answer your question about where's the reporting coming from it is in those, the majority of the cases are coming from states where there are particular laws on the books that are being, being interpreted by prosecutors or the top three states are states where the state supreme courts have defined fetuses, embryos, or fertilized eggs as "people," so Alabama leads the way in our dataset. There were over 600 cases coming out of Alabama alone. Two thirds of the cases came out of Alabama, South Carolina, and Oklahoma, because these are the three states where state supreme courts have defined legal personhood to include fetuses, embryos, or fertilized eggs.

Dorothy: Yeah. That idea, which of course is very much connected to bans and restrictions on abortion, you know, this is a unified strategy to make the fetus have the legal status of an already-born child. And that is a way to justify compelled pregnancy, banning or restricting abortions, as well as criminalizing pregnancy and criminalizing pregnant people for pregnancy losses or for risking a fetus, even if they plan to give birth. So, it's such a powerful way of connecting both the restrictions on abortion and the punishment for risking a fetus for pregnancy losses in a, this expanding net of prosecutions. And yes, as Lourdes is saying, where the state has explicitly stated this, it gives more leeway for prosecutors. Although, of course, prosecutors have also brought prosecutions in other places with newfangled ideas that are now supported by the Dobbs decision. I also wanna point out how these ideas about drug use and fetal personhood then come together to make pregnant people vulnerable to prosecution, because they're deemed to have harmed the fetus, but also vulnerable to the family policing system because it's considered a form of child maltreatment. And so, even without any evidence, we should add that the child was harmed at all. So, it's not, you know, it's not about really protecting future children, it's about regulating pregnant people. And it can have an effect then on the family relationship, because there are judges who consider drug use while pregnant to be a form of child maltreatment and a sign that you're not a good parent. You know, child welfare workers, family regulation workers often deem any evidence of drug use as evidence of bad parenting. And so, drug use while pregnant now becomes evidence that you're not a good parent, even to the children who weren't exposed to drugs in utero. And again, none of this requires evidence of any harm to the child, in addition to, as we've both been saying, punishing people is not a good way to protect child welfare. So, all of it is unsupportable, inhumane, but now expanding in this broad net of, you know, this idea that people should be punished for being pregnant and not- being pregnant and not producing...it's not even producing a healthy child because you could produce a healthy child. It's still being punished. It's just, it's just a massive way of regulating and punishing pregnancy, even to the point of destroying families after children are born.

Lourdes: Yeah. And if I can just add to that and really underscore what people are being punished for often is conduct that's not illegal for anybody else.

Dorothy: Right.

Lourdes: So, drug use in most of America, by itself is not a crime. It is a public health issue. And, you know, and, and, and so people are being punished for that conduct. You could fall down the stairs and be punished. You can get into a car accident and be punished. You could eat a poppy seed bagel on your way to, you know, on your way to the hospital for labor and delivery, and you have a positive tox screen and you're punished. You can be taking prescription medicine for a different healthcare issue and be punished. You can be managing your drug use, your substance use disorder under the care of a doctor and still be punished. So, it doesn't matter. And if you have a negative pregnancy outcome, a miscarriage or stillbirth, you become criminally suspect. And let's remember that 15% of pregnancies in the United States end in miscarriage or stillbirth. So, this is about whose pregnancy loss gets picked over by law enforcement. That's the issue. And, you know, and let's look at a state like Alabama, which you can be charged with murder, or you could be charged with felony child abuse and neglect regardless. I mean, if you have a pregnancy loss, right? Certainly murder. But if you, you can have a perfectly healthy baby, and you still be charged with felony child abuse and neglect if you have a positive tox screen. So, this, I mean, this is, this is what we're talking about. In Alabama, the way the law has been interpreted there was a law that was passed basically to prevent children from being exposed to meth labs. The law and the way it's been interpreted now equates a person's womb to a meth lab. So that is, that's what's happening in a state like Alabama. And then of course, now we have seen how this rationale has been extended to frozen embryos.

Dorothy: Yes.

Lourdes: For now, extra uterine children in the state of Alabama. So, embryos are being afforded more rights-

Dorothy: Mm-hmm.

Lourdes: -than even live people, anyone, not just the pregnant person, but any, any living person. So, it really is a dystopia. It's an American dystopia at a time where maternal mortality is increasing. It's already disproportionately high as compared to other industrialized nations, and certainly disproportionately high for Black women and women of color, indigenous women. Pregnant women are not being afforded the standard of care when they're in obstetric crisis in the name of protecting embryos and fetuses where they have to stare death in the face before they can get appropriate medical care. A report that was just issued about Louisiana, where doctors are so fearful of felony charges that instead of providing abortion care during miscarriages, they're performing major surgery C-sections because it doesn't look like abortion. And again, because of this myth of personhood, legal personhood, and this is not about how people feel about their pregnancies. They can feel, "yes, I'm carrying a baby." But what we're talking about is legal personhood, how embryos, fetuses, fertilize eggs are being recognized in law. And because of that, then it's- whose rights matter here? Who's the autonomous rights bearing person in this equation here? And more and more, it's not the pregnant person.

Jennie: So, one of the things you talked about is how the US rates for maternal mortality compared to other countries. I think another thing that's really important to talk about is how with the loss of Dobbs, like, the US has really become out of step with the rest of the world on regressive reproductive rights policies. Like, there are only, like, I think, three or four countries who have regressed in the last 30 years, and we've seen much more an expansion with the Green Wave. And I know Lourdes, that was something that you wanted to touch on a little bit.

Lourdes: Oh, yeah. Well, so the US with the Dobbs decision joined Poland, Nicaragua, and Salvador as regressing on abortion rights once it had been established. And as compared to the rest of the world where 60 plus countries have liberalized their abortion laws. And so, really going counter to the global trend here, including Latin America with the Green Wave of, you know, the movement of activists who have pushed forward to recognize the ability of individuals to make their own reproductive health decisions. But here we are in the US going backwards, and I know there's this narrative that's been going around of, "well, we should have a national 15 week ban so that we can be aligned with Europe and other countries." And that's really misleading because, you know, for, and of course there are, like, nuances across these countries. Some countries within those 15 weeks really facilitate access through their own healthcare systems, for example. Other countries have really broad exceptions beyond the 15 weeks for health for life, but also for social, economic reasons, right? So, it doesn't serve as a ceiling, which is what it would be here, cutting off access beyond 15 weeks in states that protect abortion care. So, and it wouldn't eliminate the bans that exist in the other states. Like, in the whole, you know, that whole swath in the South, it wouldn't liberalize abortion up to those 15 weeks. It would just keep those intact, right? So, it would just basically serve to curtail access in states that have protected abortion care. So, when people hear, "oh, that's just a reasonable compromise." Well, it's not. It is, it really is not. And there's this, you know, the other, this other narrative that's being spoken about. "Oh, you know, we just want abortion up to the moment of birth," which is just ridiculous. That's called labor and delivery. You know, people have babies at the moment of birth, unless there's, like, something medically seriously wrong happening. The result of adopting a law, even though it sounds ridiculous, would be to have to have an authority to pick over people's miscarriages and stillbirths by law enforcement. That's the problem with that.

Jennie: So, Dorothy, I did have a specific question for you too. So, I just finished Torn Apart, which I expect to sit with me for a very, very long time, just like Killing the Black Body did. But as a survivor of intimate partner violence, what stuck with me was the short part on how that can even be, like, you can get caught up in that and have your kids taken away because of surviving intimate partner violence. Do you wanna talk about that for a little bit?

Dorothy: In general, the family policing system is a system that operates on accusing people, especially people from marginalized communities. Black people, Indigenous people are the most likely. And as I mentioned before, almost all are impoverished or low income—very unlikely for wealthy white people to ever get entangled with the system. And after, after accusation, there's investigation, there's supervision, there's taking children away. And the main reason why children are removed from their homes is because of alleged child neglect. So, failing to provide some resource to your children. And in general, it's a form of punishment for people who are vulnerable or experiencing some kind of structural injustice themselves, but instead of dealing with the injustice, the system blames them and takes their children away. So, that's the general way it operates. And that happens to people who are survivors of intimate partner violence as well. It operates that same way with them, which is "you are to blame for the fact that your children are at risk"—because you don't have to find harm, risk is enough—"are at risk for experiencing violence in the home. And so, because you're to blame, we're going to punish you by taking your children from you." Doesn't get to the heart of why the violence is going on in the home. It doesn't even try to regulate or retrain the person who's committing the violence. It's targeting the person who is experiencing the violence and punishing that person by taking their children away, which is also an aspect of the system that it doesn't address. It doesn't provide the resources that people need to help them care for their children. Its main tool is separation. Just to give an example, I spoke to a group called Jane Inc. I'm pretty sure in Massachusetts recently and on this topic. And one of the people who works for this organization told me that she was helping a woman who was in a homeless shelter because she had escaped a violent partner in their home. She had escaped with her children, and they were working on getting her job, finding them housing, all the things that this woman needed to care for her children and stay out of the violent home. Someone reported her to Child Protective Services because either experiencing violence in the home or being houseless are both common reasons why families are reported. And the family policing system came in and took her children from her. Okay, now she's worse off. First of all, she's lost one of the reasons you might get public housing to, you know, you're more likely if you have children. So, she's lost that because she no longer has custody of her children. She's traumatized because her children were taken from her as are her children. She now has to engage in all sorts of mandated, so-called services, like go to parent training classes 'cause the idea is, something is wrong with you if you're in this dangerous situation so you need parent parent training. You need therapy. You know, you don't need concrete resources to help. You need us to "fix" you. And so, she's gotta go to all of these classes and services. And then also, many child welfare agencies will require drug treatment, even if you don't have a drug problem. And if you had one, had a substance use disorder, you get the treatment, which is inadequately provided as Lourdes has pointed out.Oh, well, you might relapse, so now we're gonna keep your children in foster care longer so that you can have the relapse services. I mean, once drug allegations are involved, it can go on forever because of the suspicion that you're a bad person. And so, it's just one example among many, many examples of families that are worse off because this family policing system got involved and makes it even harder in addition to deterring women from getting any help. Studies have pointed this out as well, that women who are survivors of intimate partner violence often do not get help. They don't tell anyone, even because they're afraid their children are gonna be taken from them. And it's a well-grounded fear because this is what routinely happens to mothers, especially who are surviving intimate partner violence. I mentioned in the book of a mother named Angeline Montauban, who is now an abolitionist against the system in New York, who was experiencing intimate partner violence. And she called a domestic violence hotline that she'd seen an ad for in the, in a bus in New York City. And when the worker on the other end of the line heard her mention her son, all of a sudden, all the attention went to the son. They didn't give her any help, Angeline. And that very day, a caseworker showed up at her house to investigate her. Eventually, they took her son away from her. He spent five years in the foster system before she got him back, no help to her or her son. He was traumatized by this experience and five years of family separation without any help at all to the family. So, yes, it's one very chilling and horrifying example of how this system works to punish people for what are actually caused by systemic structural violences against them. And also, how this system then becomes a replacement for actually making structural changes to end child poverty, to end the racist structures that make it hard for many families to get by and thrive and to end violence in the home. It doesn't get to the root of violence and in fact, makes it harder for families to deal and end violence in homes.

Lourdes: Yeah, if I can just add to that, you know, something that I wanted to mention earlier was that 15 major medical and public health associations like the American Medical Association, American College of Obstetricians and Gynecologists, American Academy of Pediatrics, and on and on, including the Maternal Mortality Review commissions of both South Carolina and Alabama, where there's high criminalization, opposed criminalization because it makes pregnancy health outcomes worse. So, they recognize the deterrent effect—people are not gonna go get help if there is help in places where they can get reported or have their children taken away. But the other, the other part of this is that, you know, because of this idea that pregnant women need to be protected against violence because they do, and they absolutely do. One of the responses has been passing what's called "fetal homicide laws." Like, around 38 states have these laws, and what they do is to recognize a separate crime committed against the fetus rather than recognizing the heightened crime being committed against the pregnant person, right? And often these laws one, do absolutely nothing to deter crime against the pregnant person or violence against the pregnant person. And they're often used against the pregnant person themselves. So, and we know that pregnancy itself is a major factor in homicide, in intimate partner violence. And 70% of people who are killed during pregnancy by their intimate partner, it's with a firearm. So, if you wanna actually look at interventions that need to happen, that's where it is. But of course, we're not as a country. That's not being prioritized. In fact, there are, you know, active advocacy against controlling access to firearms. And the other just data point is that the National Domestic Violence Hotline has received a significant uptick in calls since the Dobbs decision. Because if you cannot make your reproductive health decisions and you cannot decide to end a pregnancy when you want to, you are more likely to be stuck with a violent partner. That's making pregnant people more vulnerable to violence, to homicide and these fetal homicide laws, again, do absolutely nothing but the strategies that are actually needed to support people in these situations as Professor Roberts just has described, those are not being invested. And we really have to, you know, the opposition has wrapped itself in this idea of being "pro-life." And that is such a, that is such a false characterization of what is happening here. This is about punishment and control. It is not about anybody's life, frankly, right? Because if there were actual interest in life, then the investment would be on healthcare, on childcare, on education, on housing, and yes, on allowing people to make their own reproductive healthcare decisions.

Dorothy: And yeah, evidence of that also is that the very states that are worse on everything you listed—investment in education, investment in healthcare, investment in true child welfare, you know, what families actually need and-

Lourdes: Right.

Dorothy: -and also, I'm guessing also the most opposed to gun control, I'm pretty sure are the very, and have the highest infant mortality and maternal mortality rates. You know, those states are the very ones that have the most restrictive abortion laws. So, it's absolutely clear.

Lourdes: And highest rates of criminalization of pregnancy.

Dorothy: Highest rates of criminalization of pregnancy. Exactly. So, I agree. It's very clear that this has nothing to do with protecting life or valuing life. It's all about regulation and criminalization. And you can see this clear connection between the devaluation of everybody's life, especially the most marginalized communities, and the regulation of abortion and criminalization of pregnancy.

Lourdes: Yeah. Right? And the criminalization of children, right? So, you know, when do, so there's this narrative of "protecting the innocent child." Well, what about toddlers? What about children in grade school who fear being shot in school? What about children of color who are being, kindergartners who are being arrested because they had a temper tantrum. So, let's really talk about a right to life agenda. A human rights life to-

Dorothy: Exactly, yeah.

Lourdes: -agenda, which is a reproductive justice agenda, which is a right to not just not have a child, but the right to have a child and to be able to raise our children in dignity and respect in safe and sustainable communities. And, and, you know, Black women have really articulated what this agenda looks like.

Dorothy: Yeah. And importantly and significantly, Black women's reproductive justice framework from the very beginning included the human right not to have a child, the human right to have a child, which means your pregnancy should not be criminalized for either, in violation of either one.

Lourdes: That's right.

Dorothy: And the human right to raise your children in safe, sustainable, valued communities. And so, it touches on the violation of compelled pregnancy, restrictions on abortion, on criminalization of pregnancy, punishment for pregnancy loss, for example, as well as coerced family planning, sterilization, which has been targeted at the same communities and also the need to end family policing. So, from the beginning, Black women saw the intersection of these human rights and all of that—the violations of all of them are increasing during this time.

Lourdes: Yeah. And I grew up in a Puerto Rican community in Brooklyn where I learned about one third of my mother's generation in Puerto Rico and in New York being sterilized without informed consent. And so that was my entry point. I later learned that the Young Lords, the Puerto Rican civil rights group of the sixties and seventies, their platform, included the right to abortion and access to healthcare. I mean, one of their big things, one of their big platforms was access to healthcare that resulted in the patient bill of rights for everybody. So, communities of color have made these linkages for decades and decades, and that's what we need to be advocating.

Jennie: So, a couple things to note. One, you talked about domestic violence and guns, how that is, you know, one of the leading causes of death for pregnant people. Well, the Supreme Court is hearing that case, or heard the case this year, will be making a decision about a case that may let domestic- people convicted of domestic violence be able to access guns again, which will put people's lives at risk. And then, too, talking about reproductive justice, I think it's just really important to note that this is a big year for reproductive justice. It's the 30th anniversary of the reproductive justice agenda and it's just really great to see some celebrations being planned around that because it really is the path forward. And as we're talking about a path forward, maybe we could do, like, a couple quick, like...this all feels so overwhelming, right? There are so many things wrong that we've talked about today. What are some things that we can do to fix it? Let's go with Lourdes first.

Lourdes: Well, I mean, I think people being civically engaged, including around the ballot initiatives on the big pushback against Dobbs, has been really important. But I think people also need to focus beyond abortion and make and understand that criminalization of pregnancy, we cannot throw people under the bus because they're pregnant and using drugs because it has a direct impact on all of us. And also, not accept the narratives that are being told by people who may have used drugs, whether they have a substance use disorder or not, because those narratives are just not based in evidence. They're based in judgment and assumptions. And it allows for criminalization and allows for separation of families. And we should be focused on harm reduction. So, advocating for policies that reject creation of personhood legal rights for fetuses and supporting policies that really center the people who are autonomous beings, who should be able to make their own reproductive health decisions, have access to care. And really holding policy makers accountable for claiming the right to life or, or claiming being "pro-life" and doing absolutely nothing to support the lives of people who are actually living and breathing in here, including children, including babies.

Dorothy: I think it's really important, as Lourdes has just suggested, for people to see how these punitive carceral policies are all entangled with each other that the policies banning and restricting abortion are related to the policies criminalizing pregnancy, which are related to the policies regulating and policing families. One positive aspect of seeing how they're all entangled, as we've been talking about this hour, is that you can also see how the movements to abolish these policies and practices are connected to each other. And so, if people who are advocating for the legal right to abortion understand that they should also be collectively organizing with people who are advocating against criminalizing pregnancy. Of course, these are sometimes the same groups, but not always the same groups, but should also be connected to what I think is the hardest for people to see, is that we should be advocating to abolish the family policing system. And if we see those connections, we collectively organize, we learn from each other, we strategize together, I think we have a much better chance of ending these punitive approaches to what are basically the struggles that people have to thrive in a society that does not support people, that does not provide true care. And of course, all of that is related to upholding the autonomy and humanity of everybody, whether they're pregnant or not. So, I think we've talked a lot about how pregnancy itself is seen as an excuse, a justification for violence against people. And understanding that view of pregnancy, along with an understanding of the structural injustices in our society, I think will build a stronger movement. Another aspect of this that comes to mind from our discussion is the way in which not only is the stigmatization of people who use drugs or are perceived to use drugs, you know, the stigmatizing of pregnancy, the stigmatizing of people in marginalized communities, either by race, gender, disability, class, is also the idea that to get care, you have to be subjected to some kind of regulation. There's this very insidious way that the view of people who need some support, especially government support to care for their families, they don't really deserve it. You know, they should be blamed for that situation they're in, and so to get the care they have to be subjected to surveillance and policing and even punishment. We need to get rid of that idea, which I think cuts through everything we've been talking about. And related to that is the idea that—and this is a problem that not just right-wing people have, but many liberal people have—that they should be "saving the children," you know, whether it's fetuses or born children from these communities that are so that they devalue. And that idea that you're saving somebody allows for a lot of regulation and punishment of the people you're supposedly saving. And I think that that cuts through the idea of saving a fetus or saving a child and is related to—and we didn't talk about this, I wish I had mentioned it before—but related to the idea that adoption is the answer to bans on abortion and compelled pregnancy. The idea that these children will be saved if they're forced to be born. And I think everything we've said today shows that they're not being saved at all. They're being pushed more into carceral systems, into the foster system, into the prison system, because they are often going to be born to struggling families who will be punished because of the perception that they don't deserve their children. And this focus on adoption is- the answer is very much related, I think, to the idea of saving children by, you know, from devalued communities, by people who perceive themselves to be, you know, more deserving of care and raising children. So, all of that.

Lourdes: Or this ridiculous idea of, like, red boxes at fire stations where you could just drop your-

Dorothy: Yes. Yes.

Lourdes: -babies off is somehow the answer.

Jennie: I have to say it's interesting you should mention this because the book I finished immediately before yours and had on the podcast, like, I dunno, three or four episodes ago, was Dr. Gretchen Sisson-

Dorothy: Yes.

Jennie: -talking about her new book Relinquished. And as I was reading your book, I was just making all of the connections between the two books of how really, you feel like separate conversations, but again, they were very much in conversation together.

Dorothy: Absolutely, and of course, Justice Amy Coney Barrett, and Justice Alito in the Dobbs decision made that connection because of course, Justice Coney Barrett asked about the safe haven laws as a way of avoiding the harm of compelled pregnancy—of course, which is absurd on its face. But then Justice Alito mentions that in the opinion in a positive way without criticism that, you know, we have "the domestic supply of infants," as he put in a footnote, is insufficient to meet the needs of people who wanna adopt. And that just is false in terms of what happens when someone is compelled by abortion restrictions to give birth. They usually keep their babies. And we know from the Turnaway Study that that often places added burdens on the family in multiple ways. And also, it's just false that adoption is going to solve the problem. Certainly doesn't erase the burden of the nine months of unwanted pregnancy by itself. But also, it completely ignores how the adoption system and foster system work. And so, it's much more likely that these children are not gonna be put up for adoption voluntarily. They're going to be forced into a family policing system from struggling families whose struggles are made harder, made by bans on abortion, as we said, in states that have the most inadequate support for families.

Jennie: Well, Lourdes, Professor Roberts, I could talk to you about this forever, and I have enjoyed this conversation so much, but I wanna be respectful of your time.

Dorothy: Thank you.

Lourdes: This was an honor and a privilege so thank you for having us.

Dorothy: Yeah, it was great to connect with both of you. Thanks so much.

Jennie: Okay y'all, I hope you enjoyed the conversation. I tried to keep my inner fan girl in inside and not let it all out as we were talking. But it was so wonderful to talk to both Lourdes and Professor Roberts. I really- I enjoyed that conversation so much. And I, yeah, still again, read the report on pregnancy criminalization by Pregnancy Justice. And then definitely make sure you read Professor Roberts' books, particularly Killing the Black Body and Torn Apart. Like I said, they will stick with me for a very, very, very long time. And with that, I will see y'all next week. [music outro] If you have any questions, comments, or topics you would like us to cover, always feel free to shoot me an email. You can reach me at jennie@reprosfightback.com or you can find us on social media. We're at @RePROsFightBack on Facebook and Twitter or @reprosfb on Instagram. If you love our podcast and wanna make sure more people find it, take the time to rate and review us on your favorite podcast platform. Or if you wanna make sure to support the podcast, you can also donate on our website at reprofightback.com. Thanks all!