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Policing and Overcriminalization of Pregnancy

As a national leader against overcriminalization, NACDL equips the defense bar to meet the growing legal challenges stemming from post-Roe prosecutions. We support attorneys handling a wide range of cases—from pregnancy outcomes to abortion-related charges—against individuals including seekers, providers, and others swept up under broad criminal statutes. While taking no position on abortion itself, NACDL firmly opposes criminalization as a response.

Across the United States, pregnant people—particularly those from marginalized communities—are increasingly subjected to criminal investigation, prosecution, and surveillance for their pregnancy outcomes or health-related behavior during pregnancy. This alarming trend is fueled by punitive policies, racial and socioeconomic disparities, and the expanded reach of the criminal legal system into private medical decisions.

Criminal defense attorneys are now encountering cases in which individuals face charges such as child endangerment, drug delivery to a minor, manslaughter, unauthorized practice of medicine, or murder for actions taken during pregnancy or following pregnancy loss. These cases often arise from healthcare interactions, where clinicians, under pressure from state mandates or institutional policies, refer patients to law enforcement instead of providing trauma-informed care.

The Issues:

This expansion of police and prosecutorial authority in the realm of reproductive healthcare has resulted in:

  • Warrantless surveillance and arrests based on urine toxicology, medical records, or anonymous reports.
  • Involuntary interrogation of patients during moments of medical crisis, such as miscarriage or stillbirth.
  • Disproportionate targeting of Black, Indigenous, and low-income women, who are more likely to face structural barriers to healthcare and are overrepresented in the criminal legal system.
  • Criminalization of behavior during pregnancy (e.g., substance use, refusal of medical procedures, or seeking self-managed abortion) that would be legal or constitutionally protected outside of pregnancy.

Defense attorneys are tasked with challenging these prosecutions in a legal landscape where medical science is often distorted, evidentiary standards are unevenly applied, and outdated forensic tools are still admissible. As state actors increasingly frame pregnancy outcomes as matters of criminal intent, defenders must be prepared to counteract prosecutorial overreach, ensure access to medical expertise, and advocate for systemic reform.

 

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Reference Library

Tools to assist defense lawyers in representing clients facing pregnancy-related charges, including training videos and materials, legal reference documents, and pleadings. Topics include conspiracy, RICO, and accomplice Liability; digital data and privacy; forensic pathology, healthcare privacy and medical records, and more. 

To access the reference library, users must create an account to affirm they work in criminal defense. NACDL membership is not required. 

Explore the Reference Library 

 

Featured Resource


NACDL and the NACDL Foundation for Criminal Justice (NFCJ) recently published Defending Abortion-Related Prosecutions: Litigation Manual Volume 1, a free resource which represents a critical step toward the goal of ensuring that NACDL members and all defenders are fully prepared to defend abortion-related prosecutions.

Access the Manual

Supported by NFCJ

Funding for this work was made possible by contributions made to the NACDL Foundation for Criminal Justice and from the Evelyn D. Reimer Fund at the NFCJ. You too can support this work by making a tax-deductible donation.

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Events


NACDL conducts in-person and virtual trainings to prepare defenders to tackle the complex challenges of representing clients charged with pregnancy-related crimes. Learn more and register for upcoming events.


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Media Inquires


Media inquiries should be directed to Jessie Diamond at jdiamond@nacdl.org or (202)-465-7647.

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