The Fall of Roe Will Lead to More Women of Color in Jail, Experts Say

In December 2018, Marshae Jones was shot in the stomach and lost her unborn child. But it wasn’t the shooter who was charged with murder. Instead, it was Jones, a Black woman who was pregnant when she was shot, who was indicted for killing her baby.

The grand jury in Alabama said in its indictment the following June that Jones “intentionally” caused the death of her baby “by initiating a fight knowing she was five months pregnant,” AL.com first reported. She faced up to 20 years in prison.

Prosecutors dropped the case a few weeks later, but the damage was already done. Activists decried the incident as punishing women for pregnancy, and highlighted the dangers of a justice system that holds a fetus’ rights over its mother’s. Alabama has long had one of the most restrictive abortion laws in the country.

Now that the Supreme Court has overturned Roe v. Wade, cases like Jones’ will only become more common as more states ban abortion, according to experts. That’s especially the case for women of color, who are already more likely to be charged for manslaughter after having stillbirths, miscarriages, or abortions.

A study of more than 400 such cases from 1973 to 2005 found that 59% of defendants were women of color, most of whom identified as Black. On top of that, 71% could not afford a lawyer, drastically reducing their chances of walking free from court.

The number of cases where women were criminalized for their pregnancies has tripled to 1,300 from 2006 to 2020, according to the National Advocates for Pregnant Women (NAPW), which co-authored the original study.

Recent such cases involved women of color like Lizelle Herrera, who was charged with murder in Texas after hospital staff reported her for a self-induced abortion, or Brittney Poolaw, a Native American woman who was convicted of manslaughter after having a miscarriage in Oklahoma last October. Both were accused of causing the death of their unborn children.

“With the dismantling of Roe v. Wade, Black, brown, and Indigenous communities will carry the burden of the consequences, as well as other marginalized communities like LGBTQ+ and women in poverty,” Christian Nunes, president of the National Organization for Women (NOW), told Insider.

Women of color are more likely to experience stillbirths due to systemic inequities

While the national rate of stillbirths has declined over the past 20 years, the racial gap has not narrowed: Black women are more than twice as likely to have a stillbirth than white women, according to the CDC.

Women of color, and Black women in particular, have higher rates of pregnancy- and labor-related health complications, like uterine bleeding and ectopic pregnancies, medical studies found. They’re also more likely to have pre-existing health conditions, like

high blood pressure

and

diabetes

, that can exacerbate complications during pregnancy.

There are several driving factors behind this disparity, including reduced access to quality healthcare, food, and resources like maternity leave. Doctors are also less likely to believe Black women when they say they’re suffering.

“A lot of Black women and women of color are neglected of a lot of these deserving rights. As a result, they have health conditions that aren’t diagnosed correctly,” Nunes said. “Because of that systematic racism that’s so deeply embedded in our institutions, they’re not honored for what they say they experience. They’re not given the same value.”

The maternal mortality rate for Black women was three times higher than the rate for white women in 2020, according to the CDC.

Marginalized communities are disproportionately targeted by the criminal justice system

Self-induced abortions through methods like abortion pills medically appear the same as stillbirths and miscarriages. Because women of color have higher risks of stillbirths and miscarriages, they could be “falling into the trap” of being falsely charged of having an abortion, according to Purvaja Kavattur, a research and program associate at National Advocates For Pregnant Women (NAPW).

“People were criminalized when Roe was the law of the land. But now, without Roe, law enforcement and prosecutors will still use murder and child abuse codes, and judicial interpretations of them, in ways that ‘allow’ them to criminalize pregnant people,” Kavattur told Insider.

That’s exacerbated by the fact that the criminal justice system already surveils communities of color much more closely.

In 2017, Latice Fisher, a Black mother of three from Mississippi, went to the hospital after she had a stillbirth. The police launched an investigation after medical staff reported that Fisher said she didn’t want more kids because she couldn’t afford it. Prosecutors combed through her phone’s search history and found web searches for abortion pills. Although there was no evidence that Fisher had ever used such medication, she was charged with second-degree murder. The case was eventually dropped, but not until after Fisher had already spent weeks in jail on a $100,000 bond.

The criminal justice system is also quicker to incarcerate women of color. The imprisonment rate for Black women was 1.7 times the rate of imprisonment for white women in 2020, according to The Sentencing Project. Hispanic women were imprisoned at 1.3 times the rate of white women.

The disproportionate incarceration of women has “damaging and devastating” impacts on their lives and their wider communities, Kavattur said. 59% of abortion patients have previously had a child, which means some women who are arrested for having an abortion or miscarriage are taken away from families who need care.

Even when a woman achieves a favorable result in court and has her guilty charges expunged, she’s still been introduced to the criminal legal system, according to Kavattur.

“This war on women, this war on abortion, this war on pregnancy and drugs — they lead to the separation of families, create a chilling effect on healthcare access, and leave women deeply traumatized,” she said.

Experts call for support for local abortion funds, voting, and solidarity

Support for regional abortion funds and providers in states where abortion is still available is crucial, according to NOW’s Nunes. 

“We need to put money into groups that meet people where they are, like Black-led or women of color-led reproductive rights groups, because there’s going to be a level of trust for those women based on mutual understanding,” Nunes said.

With midterm elections coming up, Nunes emphasized the importance of voting.

“These midterm elections are one of the most important elections of our lifetime, because they’re going to be talking about not only reproductive rights, but also voting rights, constitutional equality, and gun violence — all the things that women are directly impacted by,” Nunes told Insider.

A post-Roe world means that healthcare institutions, public institutions, and even people’s homes will become sites for criminalization of abortion, according to Kavattur.

“However, we shouldn’t let that paralyze us. As these sites for criminalization increase, so do the opportunities for potential allyship, collaboration, and solidarity,” Kavattur said. The network doesn’t just include reproductive rights lawyers, but doctors, midwives, public health researchers, social workers, racial justice groups, and groups looking to end mass incarceration, according to Kavattur.

“In realizing all these intersections and how they compound to harm communities, they also serve as places for us to collaborate to disrupt those harms,” Kavattur said.