Pushing Back Against Fetal Personhood Laws

Author(s): Scott Douglas Jacobsen

Publication (Outlet/Website): The Good Men Project

Publication Date (yyyy/mm/dd): 2025/03/07

Pregnancy Justice, a legal advocacy organization, works to protect pregnant individuals from criminalization and state control. Caitlyn Garcia, a staff attorney, discusses how fetal personhood laws assert that embryos or fetuses have legal rights, leading to the criminalization of pregnancy outcomes. These laws restrict abortion, contraception, IVF, and prenatal care while increasing surveillance and prosecution. Garcia highlights the ideological roots of these policies and their role in reinforcing traditional gender roles. She advocates for litigation, legislative reform, and public education to counteract these laws and emphasizes the broader struggle for reproductive justice and autonomy in the U.S.

Scott Douglas Jacobsen: So today, we are here with Caitlyn Garcia, a staff attorney at Pregnancy Justice. To ensure my facts are correct, Pregnancy Justice is a legal advocacy organization dedicated to ensuring that no one loses their rights due to pregnancy or the capacity for pregnancy.

The organization focuses on protecting pregnant individuals, particularly those most vulnerable to state control and criminalization, such as low-income individuals, people of color, and those who use drugs. Through litigation, policy advocacy, and public education, Pregnancy Justice challenges laws and policies that undermine reproductive rights, including fetal personhood laws, the criminalization of pregnancy outcomes, and restrictions on abortion, contraception, and IVF. The organization works to safeguard bodily autonomy and reproductive justice in the post-Dobbs legal landscape. So, in the United States’ legal context, how is fetal personhood defined, and how is this concept used to justify laws that restrict or deny reproductive rights?

Caitlyn Garcia: Fetal personhood is a radical legal doctrine that underlies abortion bans, the criminalization of pregnancy, and certain civil and criminal laws. It is the idea that a fetus or embryo has legal rights that supersede the rights of the pregnant person and therefore requires state protection. We have seen this doctrine applied in numerous cases across the country, as Pregnancy Justice has represented individuals in multiple states.

For example, fetal personhood is the basis of legal arguments seeking to grant frozen embryos legal protections. Because of this, when medical providers dispose of frozen embryos, there is significant legal uncertainty. Could they be held civilly or criminally liable? Fetal personhood is dangerous because it creates ambiguity in the law and generates conflicts between the alleged rights of the embryo or fetus and the rights of the pregnant person—ultimately undermining the rights of the pregnant person.

Jacobsen: Fetal personhood is based on the idea that personhood begins at the moment of conception. However, this is fundamentally a religious and ideological position, not a medical or scientific one. So, how might fetal personhood laws impact access to prenatal care, abortion, IVF, and contraception?

Garcia: Definitely. Because fetal personhood is the foundation of many abortion bans—asserting that the fetus requires legal protection—access to abortion is often severely restricted. This contributes to maternal health care deserts, where individuals lack access to essential reproductive health services. Many states have also passed laws explicitly criminalizing abortion.

As a result, individuals who seek an abortion may face criminal prosecution. Pregnancy Justice released a report, Pregnancy as a Crime, in September 2024. In that report, we documented the highest number of pregnancy-related criminalization cases in a single year since Dobbs v. Jackson Women’s Health Organization. We recorded 210 cases in which people were criminally charged for their pregnancy outcomes. These charges included allegations related to substance use during pregnancy, miscarriage, stillbirth, and abortion. (More info: New Pregnancy Justice Report Shows High Number of Pregnancy-Related Prosecutions in the Year After Dobbs | Pregnancy Justice)

We found that five cases in that report specifically referenced abortion. In those cases, either the individual had an abortion, or merely contemplating an abortion was used against them. I am currently working on a case in which an individual’s past contemplation of abortion is being used against her in a murder case—arguing that because she previously considered having an abortion, it indicates intent to harm a newborn or a living child later. This is extremely dangerous.

However, we cannot focus solely on abortion, as that would overlook the broader issue of pregnancy criminalization, which affects individuals in multiple ways. We need to separate access to reproductive health care from punitive measures, ensuring that people can consider their options without fear that their decisions might later be used against them in a legal case.

Jacobsen: Beyond the laws themselves, how does this lead to increased criminalization and state surveillance of pregnant individuals?

Garcia: Definitely. In many cases, for example, a mother with a substance use disorder may seek care at a hospital or from a doctor, hoping to receive medical support, including prenatal care. However, she may be subjected to drug testing—often without her consent. If she tests positive, she may then be reported to Child Protective Services (CPS), leading to a family court case. In some situations, law enforcement becomes involved, escalating the situation into a criminal case.

This legal entanglement discourages individuals from disclosing critical information to their health care providers—whether about substance use or other medical conditions—out of fear that it may be used against them. Additionally, the collaboration between the medical system, CPS, and law enforcement fosters distrust in health care providers and increases surveillance and intrusion into the lives of pregnant individuals and their families.

Jacobsen: One issue that is not discussed as much is the derivative effects of this atmosphere of criminalization—particularly the psychological toll, stress, and mental health impacts. Do you hear about this from individuals seeking your assistance?

Garcia: Definitely. We see this distrust in the medical system firsthand. Many of our clients feel betrayed after being drug tested without their consent, leading them to avoid medical providers altogether. Some of these cases result in CPS investigations, forcing individuals to endure months of home visits—both scheduled and unannounced.

We have also seen this occur during the COVID-19 pandemic, which was already a period of heightened anxiety. Despite this, individuals were still forced to open their homes for government inspections, adding to their distress.

In addition to criminal and family court cases, we are also witnessing a breakdown of trust within communities. A particularly troubling trend has emerged in cases documented in our Harming Fathersreport, in which fathers are being deemed neglectful if they fail to control their pregnant partner’s behavior. For example, a father may try to support his pregnant partner by helping her access substance use treatment, but if the court determines that his actions were not sufficient, he may still be charged with neglect—on the grounds that he failed to prevent harm to the fetus.

This is another example of fetal personhood being weaponized in the legal system, reinforcing the dangerous notion that a fetus has independent rights that override the rights of the pregnant person.

Jacobsen: But then, there is distrust and a breakdown within families themselves. If one partner is deemed neglectful for not controlling the actions of another partner, how can they rely on or trust one another? This creates tension within families, and it is happening not just in certain states—it is happening in New York as well.

I have conducted interviews with colleagues in Ghana, where we discussed Ghana and Uganda. In both countries, two of the most regressive LGBTQ+ bills in the world were posed. These bills received financing and support primarily from American evangelicals, who influenced the political and legal landscapes in ways that attempted to undermine human rights.

Similarly, in the United States, the origins of fetal personhood laws can also be traced back. There is a clear pattern of ideological and financial backing behind these regressive legal frameworks. Running the clock back here, where do fetal personhood laws originate?

Garcia: We have seen these laws embedded in state legal systems for decades. Alabama is a prime example. In 2013, the Alabama Supreme Court ruled that fetuses are children at any stage of gestation under the state’s criminal and child abuse laws. This decision opened the door to pregnancy-related prosecutions.

More recently, in 2024, an Alabama court ruled that frozen embryos are children or, at the very least, should be legally protected as such. This ruling set a precedent that could be used to further criminalize pregnancy-related decisions.

In states like Alabama, existing laws are being manipulated to criminalize pregnancy. For example:

• Chemical endangerment of a child law: Originally intended to protect children from being exposed to illicit substances in places like meth labs, these laws are now being applied to pregnant individuals. Prosecutors have equated the womb to a drug lab, arguing that pregnancy while using substances constitutes endangerment.
• Mississippi’s aggravated domestic violence laws: Initially designed to protect individuals from harm, these laws have been repurposed to prosecute pregnant individuals who use substances—on the grounds that they are causing harm to their fetuses.

These examples demonstrate how laws that were never originally intended to regulate pregnancy are now weaponized against pregnant individuals. The broader trend of pregnancy criminalization dates back many years, but its use has accelerated in recent times.

Jacobsen: What can be done legally and through policy advocacy? As a Canadian, I recognize that my commentary comes from an external perspective, but there are three possible paths forward: Slow the spread, halt their enforcement, or reverse these laws

Garcia: In legal and policy advocacy, there are key strategies that can be used to fight back:

• Litigation: Civil rights organizations can challenge fetal personhood laws as unconstitutional, arguing that they violate due process and bodily autonomy.
• Legislative advocacy: Advocates can push for state-level protections that explicitly prevent pregnancy criminalization and repeal existing fetal personhood laws.
• Public education and awareness: Raising public awareness about the consequences of these laws can shift public opinion, which in turn pressures lawmakers.
• Intersectional coalition-building: Collaborating with reproductive rights, racial justice, and civil liberties organizations can strengthen opposition efforts.

Ultimately, the fight against fetal personhood laws is part of a larger struggle for reproductive justice. It requires legal, legislative, and grassroots mobilization to ensure that pregnant individuals are not criminalized for their reproductive choices.

We saw an example of positive policy change in Hennepin County, where the prosecutor’s office announced that it would no longer pursue criminal charges against pregnant individuals for substance use. In a sweeping decision, they determined that pregnant individuals need care, maternal health services, and medical assistance, rather than punishment for substance use or seeking treatment. This was a major step toward reversing the harms caused by previous prosecutions. Additionally, the office stated that it would review and address past cases, providing a pathway for individuals previously charged to seek relief.

This demonstrates that prosecutors can take action to reverse past harms caused by pregnancy criminalization. Prosecutors need to recognize that their intentions to “protect” individuals often have the opposite effect, leading to harm instead. This is particularly evident in Mississippi, where aggravated domestic violence laws have been misused against pregnant individuals. Legal professionals must critically assess how existing laws impact communities and consider whether certain legal applications should be abandoned or repealed entirely—as was done in Hennepin County.

Jacobsen: Where do you see the most pushback against efforts to challenge fetal personhood laws?

Garcia: I cannot pinpoint a single location where resistance is strongest because we see pushback in numerous states across a wide range of cases. You might assume that in a state with constitutional protections for reproductive rights, such as Michigan, these types of prosecutions would not happen. However, we have seen cases in Michigan where individuals have been charged with murder after experiencing a stillbirth—despite the state’s legal protections for reproductive freedom.

Much of this resistance stems from a lack of education. Many prosecutors believe they are protecting fetuses, but in reality, their actions harm pregnant individuals and their families instead. Rather than offering protection, these prosecutions traumatize people, criminalize pregnancy outcomes, and worsen already difficult situations.

The pushback often comes from officials who believe they are acting with good intentions but are operating under misinformation, nonfactual legal reasoning, or faulty premises. Unfortunately, these misguided policies cause real harm—even when framed as “protective” measures.

Jacobsen: This pattern of state intervention into private reproductive decisions is not new. For example, under Nicolae Ceaușescu’s regime in Romania, the government enacted Decree 770 in July 1966, which severely restricted abortion in an effort to increase birth rates. The law mandated that women have a minimum number of children, subjected them to routine government inspections, and created a system of surveillance over their reproductive choices.

This is a clear example of how state control over pregnancy can lead to oppressive and long-lasting intergenerational harm. While the American case is distinct in many ways, it is striking how policies around reproductive rights can shift drastically depending on political changes and ideological agendas.

Garcia: Another key issue is that many of these prosecutions are not backed by science. In many cases, there is no medical or scientific support for the claims being made against pregnant individuals. Criminalizing pregnancy outcomes is often based on ideology rather than medical evidence, making these policies even more dangerous. At the end of the day, the legal system should not be punishing people based on pseudoscience or political agendas—especially when it comes to reproductive health.

Jacobsen: I think there’s a strong analogy to be made here. If you look at the creationism and intelligent design cases, there was a clear attempt to bypass scientific review and use the legal system to push religious ideology into high school science classrooms. These efforts were ultimately defeated through lawsuits, including some prominent ones. I think a similar dynamic is at play here.

Garcia: Legal challenges are essential to push back against fetal personhood laws, but litigation is costly. I also want to add some context to your point. If you step back and take a wider lens, it becomes clear that this is about much more than just “protecting fetuses”—even though that is the justification given. When we examine broader legislative trends, we see lawmakers pushing for policies that reinforce traditional gender roles.

For example:

• Some lawmakers are now proposing the elimination of no-fault divorce.
• There has been a rollback of affirmative action and DEI initiatives.
• The pushback against racial and gender equity programs is accelerating.

It is critical to recognize that people of color are not the only beneficiaries of these programs. When you look at the full picture, the underlying agenda becomes clear: there is an effort to push women back into traditional roles—into a subservient position focused on childbearing. 

Jacobsen: This goes beyond just promoting traditional motherhood—it is an idyllicized or romanticized vision of motherhood that ignores reality. This reminds me of Margaret Atwood’s comments about how she incorporated Nicolae Ceaușescu’s policies into The Handmaid’s Tale. Under Ceaușescu’s regime, women were forced to have children, but without state support. This is the same contradiction we see today:

• The state pushes for more births but refuses to invest in health care, education, or family support.

Garcia: This issue is not just about whether women want children or how many children they want—it is about controlling their choices. The long-term effects of these policies are devastating, particularly for low-income individuals and marginalized communities.

The long-term consequences of forced birth policies have been well-documented in other countries and historical contexts. Countries that have restricted reproductive rights without providing adequate social support have seen generations of children born into poverty, with limited access to education, health care, and stable family structures.

Jacobsen: This is not speculation—we have concrete evidence from history that these policies create systemic, intergenerational harm. And the people who suffer the most are those who already lack family wealth, decent income, and access to essential services.

Garcia: You are absolutely right—fetal personhood laws are just one piece of a much larger, coordinated strategy. The regressive policy agenda is multi-pronged, and many people focus only on abortion rights, missing the broader legal shifts happening in parallel. This is why it is essential to connect the dots between:

• Abortion bans
• The criminalization of pregnancy outcomes
• The erosion of protections for women’s autonomy
• Broader legal changes that restrict gender and racial equity initiatives

For decades, the criminalization of pregnant individuals for substance use has been used as a backdoor method to control and punish them. However, every major medical and public health organization opposes these policies because they do not create a safe environment where people can seek care.

These laws discourage pregnant individuals from seeking medical help. Instead of promoting health and safety, they create fear and uncertainty, making it less likely that people will feel safe discussing their medical needs with providers.

At the end of the day, these policies are not rooted in medical science—they are ideological tools designed to enforce a specific social order. That is why the fight against fetal personhood laws must be part of a broader movement for reproductive justice, gender equality, and human rights.

If you are pregnant and struggling with substance use, Suboxone is one of the recommended medications for treatment. But if you cannot access it, what happens? You may avoid seeking care altogether. And when that happens, pregnancy outcomes worsen—not just for the pregnant person, but also for the fetus and newborn. This leads to higher rates of maternal and infant complications.

There is a report you might want to reference called State-Created Harm, which examined the consequences of Tennessee’s fetal assault law. In 2014, Tennessee explicitly criminalized substance use during pregnancy. However, the law was so harmful that it was allowed to sunset after only two years. The data showed an increase in fetal and infant deaths because pregnant individuals were afraid to be honest with their health care providers or avoided medical care entirely.

From a Canadian perspective, this situation is shocking for two reasons:

1. Canada has an integrated public health care system.
   • While there are challenges—such as doctor shortages and immigration-related pressures—there is universal access to medical care.
   • We also have a partially implemented national pharmacare program, which reduces financial barriers to prescription medications. In contrast, the U.S. system creates enormous disparities in access to care.
2. Medical decisions should remain between a physician and their patient.
   • What happens between a trained medical professional and a pregnant individual should be a private medical matter—not something dictated by policy or law.
   • The intrusion of legal and state intervention into these decisions is a serious violation of privacy and autonomy.

Another problem is that hospitals and medical providers are mandated reporters, meaning they believe they are legally required to report certain cases. However, hospital policies themselves can be examined and changed.

For example, we have seen cases where a pregnant individual tested positive for opioids—only for it to be traced back to eating poppy seeds. If the hospital had properly reviewed its testing thresholds, it could have prevented unnecessary harm. Similarly, some patients test positive for a substance they have a valid prescription for, yet the result is still used against them.

Jacobsen: I have interviewed Dr. Gordon Guyatt, one of the most-cited epidemiologists in the world and a co-founder of Evidence-Based Medicine (EBM). In 1991, he co-authored a paper introducing EBM, which has since been widely adopted in medical decision-making.

One key point he has emphasized is that countries with national health care systems prioritize equity in health care access. This is evident in Western Europe and North America—outside of the United States.

In contrast, the United States places greater emphasis on individual privacy or autonomy, which can sometimes come at the expense of equitable health care access. This contradiction—criminalizing pregnancy while also valuing autonomy—reveals deeper issues in U.S. health policy.

The American emphasis on autonomy shifts the focus toward private health care rather than public health care. However, there is little evidence to suggest that private health care systems are more efficient or provide better services than public health care. Additionally, private systems cannot take full advantage of economies of scale in the way that national health care and national pharmacare programs can.

What cultural barriers do you see in challenging fetal personhood laws within the broader American value system? I see this as part of the argument that life begins at conception, which is fundamentally a religious and socially conservative viewpoint. These differences in values and preferences influence health care policy across advanced industrial economies.

So, how do you effectively challenge fetal personhood laws in a context where significant portions of the American population hold a different set of values and preferences compared to other high-income nations?

Garcia: Absolutely. Autonomy and privacy are deeply embedded in American values—particularly in medical privacy and patient confidentiality. However, in many of our cases, we see privacy violations that contradict these values.

For example:

• Hospitals reporting patients to Child Protective Services (CPS) without informing them.
• Medical providers sharing private medical information without consent.
• Pregnant individuals believing their information was confidential, only to face surveillance and legal consequences.

The tension is that this sharing of private medical information is not being used to support families—it is leading to family policing and surveillance. Instead of protecting individuals, it creates additional harm.

This is why many advocates oppose mandated reporting in these contexts. It is not being implemented in a way that helps families—it is being used to criminalize pregnancy outcomes and restrict reproductive autonomy.

There is a societal tension between:

• A desire to “protect” families and fetuses.
• A commitment to respecting autonomy and individual decision-making.

At the end of the day, we must separate punishment from health care. If pregnant individuals fear criminalization, they will avoid seeking medical care—which worsens health outcomes for both them and their families.

Privacy protections, such as HIPAA, should ensure that medical records remain confidential and are not used for surveillance or prosecution. If patients trust that their information will not be shared with law enforcement or CPS, they are more likely to seek care and have better health outcomes.

One of the key contradictions in this debate is the gap between the American ideal of self-determination and the reality of reproductive control.

In theory:

• The United States prides itself on individual freedom and self-determination.
• Americans value privacy, autonomy, and the right to make personal choices.

In practice:

• Pregnant individuals are being criminalized for their medical decisions.
• Mandated reporting is leading to surveillance, not support.
• Reproductive rights are increasingly restricted, contradicting the rhetoric of personal freedom.

This contradiction—claiming to champion autonomy while simultaneously imposing reproductive control—is at the heart of the issue. At the end of the day, privacy should be a tool for protecting individuals, not a selective value used to justify harmful policies.

But then, as soon as a fetus is involved, the entire framework shifts. Suddenly, if you do not have the capacity to be pregnant, these policies no longer apply to you. However, if you are a person of color, low-income, or otherwise marginalized, the state intervenes and dictates what you can and cannot do with your own body.

Another issue at odds with this is the American tendency to rely on the criminal legal system for everything.

• If there is a health emergency, people call 911.
• If someone is experiencing a mental health crisis, people call the police.
• If there is a pregnancy-related issue, the criminal legal system steps in instead of the health care system.

But the police are not trained for these situations. That is not their role—yet, for some reason, they are frequently the default response.

This one-size-fits-all approach is harmful. We should not be using law enforcement as the primary response to:

• Pregnancy and substance use.
• The opioid crisis affecting pregnant individuals.
• Medical conditions that require specialized care—not criminalization.

The increased opioid-related deaths among pregnant individuals are further proof that what is needed is care, not punishment.

We must completely separate medical care, pregnancy and reproductive rights, access to abortion, from the criminal legal system.

Jacobsen: America is an extremely litigious society. As the saying goes—maybe the solution is to just declare war on it. That seems to be the go-to strategy in the U.S. Whether it’s the War on Drugs, the War on Crime, or the War on Poverty, the framing is often about punitive measures.

But as we have seen in the last few weeks, this approach does not work. If anything, the language and framing of these policies matter just as much as their content. So, what should I be asking next?

Garcia: At the end of the day:

• Health care must be separated from punishment.
• Pregnant individuals must be allowed to make decisions for their own bodies and families.
• The state should not be intervening in private medical decisions.
• Autonomy must be protected, not restricted.

We also need to pay attention to what is coming next. The attacks on reproductive rights are not happening in isolation. The same forces targeting pregnant individuals are also targeting trans and nonbinary people, and other marginalized communities This is not just a single issue—it is part of a larger system of control over bodily autonomy.

This is an attack on all of our clients. These issues are deeply interconnected, and that is an important takeaway. This is not just about abortion. This is about reproductive justice as a whole. Pregnancy criminalization is a key part of this broader issue and must be actively fought against That is exactly what we are doing at Pregnancy Justice.

Jacobsen: I want to share a quick anecdote.

Last year, I took an Amtrak trip across the United States, traveling from Montreal to New York, Boston, Atlanta, Charleston, New Orleans, Chicago, Los Angeles, and Seattle—a journey that lasted three weeks.

Along the way, I met a wide range of Americans. One person I met was a cowboy who owned 400 acres of land, which had been gifted to his family by the King of Spain over 400 years ago.

Another person who had my seat, I said, “You can take my seat if you want. I’ll be working in the snack cart on my laptop.” They replied, “Nah, boo. I am Black. I am trans. I am six months pregnant. I don’t want any weirdo sitting next to me.” America is an incredibly diverse place.

It is important to keep in mind that these laws and policies have real, explicit consequences. Organizations must consider not just the legal aspects of these issues, but also the real-world impact on people’s lives. Many of these policies lack scientific evidence, and people often do not reflect deeply enough on the philosophical foundations of their beliefs.

Garcia: Scott, if you have additional questions, I’d be happy to follow up. Thank you so much—it was great having you here today.

Jacobsen: Enjoy your chaotic America and occasional good weather.

Garcia: Haha, thank you! Take care. 

Jacobsen: Ciao.

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