Whatsjust presents Critical Conversations

Pregnancy on Trial: The Criminalization of Reproduction with Lourdes A. Rivera

• Season 5 • Episode 4

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In this episode, I’m joined by Lourdes A. Rivera, President of Pregnancy Justice and a leading voice in the fight to ensure that no one loses their rights because of pregnancy. Lourdes has spent over three decades advancing reproductive freedom, gender justice, and human rights through her work in law, philanthropy, and advocacy.

Together, we unpack what it means to live in a country where pregnancy itself can lead to punishment, and what that reveals about our broader criminal and political systems.

We dive into:

  • Why and how pregnancy is being criminalized across the U.S.
  • What it really means to be “pro-choice” in today’s legal and cultural landscape
  • The impact of criminalizing substance use during pregnancy
  • The realities of being pregnant behind bars
  • What we can all do to protect reproductive freedom and dignity

This conversation will challenge the way you think about rights, justice, and the politics of care, reminding you of what’s at stake when we criminalize bodies instead of supporting them.

Chapters

00:00 Introduction to Lourdes A. Rivera and Pregnancy Justice
02:54 Personal Journey into Reproductive Justice
04:13 Defining Fetal Personhood
07:01 The Conflict of Rights in Pregnancy
10:53 Debunking the Crack Baby Myth
14:35 Public Health vs. Criminalization
18:31 Pregnancy in Jails and Prisons
21:55 The Criminalization of Pregnancy Loss
23:05 The Broader Implications of Reproductive Rights
23:48 Reproductive Justice vs. Pro-Choice
26:31 Impact of Ideology on Healthcare Access
28:33 Consequences of Criminalization on Families
30:18 Social Determinants of Health and Reproductive Justice
31:43 Criminalization of Pregnancy and Healthcare Needs
36:12 Legal Consequences of Pregnancy Criminalization
38:49 Community Action and Advocacy for Change
42:58 Challenging Pro-Life Narratives
44:56 Prioritizing Care Over Criminalization
48:59 Lourdes Outro.mp3

Credits:

Created and hosted by Abbie Henson
Edited by Isabelle Kerby-Mcgowan
Website by Sarah Lords

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 Please listen carefully. 

Hi everyone, and welcome to Critical Conversations. I'm your host, Abby Henson, a criminologist and researcher who believes that learning to think critically is one of the most powerful things we can do for ourselves and for each other. This podcast is a space to ask hard questions, listen deeply, and explore how we can build a more just and compassionate world.

One conversation at a time. Today's guest is Lourdes, a Rivera President of Pregnancy Justice, where she leads efforts to ensure no one loses their rights because of pregnancy. She oversees advocacy and defense for people facing pregnancy related criminalization, combats post Roe v. Wade, threats and Champions, the full personhood and rights of all pregnant people.

Lordes previously served as the Senior Vice President of US programs at the Center for Reproductive Rights, overseeing comprehensive litigation policy advocacy and partnership strategies. Prior to that, she was the senior program officer at the Ford Foundation, developing and implementing a US and global grant making strategy in sexuality, reproductive health and rights.

Lordes is a co-founder of California, Latinas. For reproductive justice and at the Groundswell Fund, she has served on the board of the National Health Law Program and as board president of the Brush Foundation for three years. She also served an American Bar Association Presidential appointment to the ABAs Coalition on Racial and Ethnic.

Jeff. She earned a JD from Yale Law School and a BA from Yale University. Today's episode explores several important questions, including how come we're criminalizing reproductive rights? What does being pro-choice even mean? Who do abortion laws impact? Should we criminalize substance use during pregnancy?

What is it like to be pregnant in prison and what can we do about all of this? So I hope that you enjoy this critical conversation and feel expanded through its content. Let's get into it. 

First of all, thank you for having me. I'm delighted to be here. So Pregnancy Justice is a legal national organization.

We've been around for close to a quarter century, and we've been fighting for the rights and dignity of pregnant people, no matter if they give birth experience, pregnancy loss, or have an abortion. And this is because we have a very simple belief. That no one should lose their rights because of pregnancy.

And we accomplish our mission by providing criminal legal defense. We advocate for legal and policy change. We publish cutting edge research and we equip our partners in the field with analysis and narrative framing that's pregnancy justice and how we do this work. 

So first, what, just what brought you into this work?

What impassioned you about this? 

My goodness. I would say a, a couple of things. One is my entry point into reproductive justice work is because my community, which is a Puerto Rican community, was targeted for sterilization abuse and then also the experimentation on the bodies of, of Puerto Rican women to develop the the birth control pill.

And so one third of my mother's generation. Was sterilized without informed consent. And that was very present in my growing up here in Brooklyn that was just kind of in the ethos where there was even a term for it called LA the operation. And everybody knew what that meant. And later I learned that was a common experience for other women of color in the South.

Fannie Lou Hamer, um, you know, called it the Mississippi Appendectomy. Women on the West Coast, particularly Mexican American and indigenous women. Also experienced this in the LA County hospital system. So that was my entry point into this work. 

I think so many people don't even realize that. And one of the things that I was reading about when I was looking at your organization was the history of especially fetal personhood.

I'm wondering if you can first define what fetal personhood is and kind of touch on some of the history around that. 

Oh, absolutely. So Freedom Tourism Hood is, is this radical idea that once was fringe, um, that fertilized eggs, embryos, and fetuses should have separate legal rights from the actual person who is carrying the pregnancy.

And as you can imagine, there's no way that two people can occupy the same body without disastrous effects to one of them. And it this is with the intentional effect to diminish the very personhood and rights of the person who is pregnant. To make them less. Of a person in society and in law, and our research shows that at least 17 states have specifically established field rights by statute or judicial decision to apply to criminal law or both criminal and civil laws beyond these 17 states.

This has been a really stealth and. Pervasive strategy. Um, and it's not always about what's on the books as a straight up fetal person at law, virtually every US state and territory has either a law or a judicial decision that defines or interprets terms like person or child to include a fetus or in the case of Alabama and embryo, um, in different areas of law like Roswell death, us in the states.

And you know, there's been like a loosen push. To require child support payments, um, for, for embryos. And if you want to really get a, a good overview of the history of this, how it came about, I, I really recommend the book written by Mary Ziegler, who's a legal historian, her book Personhood, the New Civil War.

Reproduction provides a really great documentation of this 

many questions right now. Well, I think some people just get caught up like, what is an embryo and what is a fetus? What is the difference? Can you just start there? 

Sure. Well, first of all, I, I just say I'm a lawyer, not a doctor. So there are like very precise definitions of what these terms mean.

You know, when, when people say from the moment of conception, you know, that's when the sperm fertilizes the egg, right? And so depending on the number of weeks, you know, in a pregnancy, it eventually becomes a phoenix. So, so what that's what that means is just, you know, the, the progression of a pregnancy and depending on where you are in the pregnancy.

You said something really poignant, which I haven't thought. Different rights for two people, or you know, quote unquote people in the same body. Is there an example you can provide that demonstrates how the rights within one body for these two units conflict? 

Oh, I mean, absolutely. Well, let me, I think I should.

Take a step back and talk about, um, how this came about because yeah, I think within that history, it just really illustrates this. So, uh, you know, as I mentioned, little personhood or, or this idea that, um, fertilized eggs, embryos, and fetuses should have, um, separate legal rights. This started to come about, um, in the 1960s, um, in response to states decriminalizing abortion and then fuller force.

1973 versus Wade was decided by the Supreme Court granting abortion rights across the country. And in response to these things, there have been attempts to push federal law or even to get a constitutional amendment to recognize fetuses as persons with legal rights. They didn't get very far then, and so the pivot was to embed this in state law.

And again, this was a pretty radical ideology. And then the war on drugs starting under Nixon, which itself was a strategy. Against the Civil Rights Movement and the anti-war movements and the, and it continued into the late sixties and early nineties, not only drove mass incarceration of communities of color for both men and women, but it also created this opportunity for the anti-abortion movement to begin embedding this ideology and state law.

They targeted black and brown pregnant women as criminals who were committing drug crimes against their own fetuses. And supposedly creating a generation of so-called crack babies, which then also intersected with this whole welfare queen trope, right? And here I would also recommend Professor Michelle Goodwin's book, policing the Womb, um, gives a really good account of that, but it was clearly a racist attack on poor women of color, a disparagement of a whole generation of black and brown children that served to dismantle.

The social safety net target communities of color with surveillance and incarceration, but also to build this idea in state law that fetuses. Have a distinct identity and therefore could be considered separate crime victims. So black women in particular started getting drug tested in hospitals, then reported to child welfare that we call the family policing System, um, and to law enforcement.

And they started getting prosecuted for felony child abuse and neglect for testing, positive for substance use during pregnancy. And, um, I, I just wanna underscore one thing here, that under these laws that are being used by prosecutors that were never intended to be used in the context of pregnancy.

Mm-hmm. 

There's no proof of harm that's required. It's just exposure. That's enough to bring charges to remove one's children or to bring criminal charges. And of course, this theory of crack babies has been completely debunked. But not before, causing enormous harm to black and brown pregnant women, um, and communities at large.

And these same arguments are now, you know, they, they were developed on the backs of black women, um, and brown women. And now they're being applied under the context of the current drug crisis to poor white women predominantly. So these, these really detrimental legal frames don't stay still. 

Mm-hmm. 

So.

They get developed on really vulnerable people and, but then they start affecting people more widely. 

Right. So can you speak to how the concept of crack babies has been debunked and some of the ways in which criminalization of substance use during pregnancy is actually really detrimental to the lives of both the future baby and the mother?

Absolutely. Well, I mean. As I said there, there were all these claims being made because during the time people were using crack that it would have this long-term effects on children, right? That never materialized. It just never materialized. Um, to the point where the New York Times, which was one of the outlets that helped to.

You tell this story, promote about crack babies. Yeah. Pr they promoted this narrative, but later they, they basically apologized for, and then, and, and wrote another story saying that this never was proven and it was not, was not materialized. What we do know, what actually is evidence-based is if you criminalize substance use during pregnancy, if you don't allow people to get the healthcare, they're need, they need in a confidential manner, they will not go to healthcare.

They get driven away from healthcare and it makes matters worse. And we, we had a, we had like a good experiment. About this. In Tennessee, there was a law, there was a fetal assault law that was specifically passed to address this scenario, and during that time, maternal and infant health actually got worse.

Those indicators became worse. And then the lost sunset and those in indicators normalized again. So we know that this is just not good policy. It is not good public health. Criminalizing drug use during pregnancy is opposed by all the major medical associations like American Medical Association, American College of Obstetricians and Gynecologists, the American Public Health Association, and others, because it's just not good medicine.

You want people. To get into healthcare. Driving people away from healthcare because like your doctor's gonna call the cops on you is, is just really, is counterproductive. 

Yeah. One of the things that people get caught up on is they think that without criminalization we're saying that it's okay. Or that it's something condoned.

And I think that there's a difference between recognizing that if there is abuse, right? Like if there is substance abuse and if someone is really struggling in this way, it's not to say that there shouldn't be help provided and attempts to better the lives of those mothers and their future children, but it is.

To recognize that punishing for these situations really does nothing to benefit society or the families, and I think people need to really sit with that because I think they get really caught up in this idea that if we're not criminalizing, then. You know, then we're just saying like, go ahead, go off, you know, do all these things, and there is some level of human autonomy that we have to recognize, right?

I've had Carl Hart on the podcast who has this book, drug Use for Grownups, and he writes about. Personal autonomy and agency and our ability to do what we want with our bodies. And so there's that element. But also recognizing that when we take a public health approach, if the concern is really about the fetus, if the concern is really about the future life of this child, then the criminalization of the mother is only going to create.

A harder life for that child. And I think people really have a hard time internalizing that. So what are some of the narratives that you all promote so that people can start to recognize and understand, um, the approach? 

Well, a a couple of things. One is we can either be morally right, right. Or we can be effective.

We, we can provide, you know, the, the. The evidence-based approaches that we know helps. Now, the, the other thing is I have yet to meet the person that became pregnant and then decided. To use substances. Um, this substance use disorder is a mental health condition that needs to be met with health services and mental health services.

We wouldn't punish somebody for having diabetes while pregnant. We have to recognize this for what it is, which is, um, a health condition that needs appropriate care and services. And the sad thing is the investments are just so upside down. Because there's still a dearth of appropriate drug treatment programs and training for OBGYNs to treat patients with substance use disorder.

That's where we should be focusing our resources. Right. I mean there, there's this expectation that once you become pregnant that everything that you're dealing with in your life is supposed to be magically going away when you're pregnant. It's still the same complex person that you were before you, you became pregnant.

And I think we have to recognize that people have, there ups their downs there complications. And you know, this is not about being a quote unquote, stereotypical good mommy. What's happening is that people are being punished. For not being completely self-sacrificing, for not being a good mommy. And that's a stereotype, that's a gender stereotype.

Um, and often there's an overlay, as we saw with the war on drugs and how black women in particular were affected by that. There's also a race stereotype that's overlaid with this, and so we have to base. Societal and budgetary investments in what actually helps people and what helps and supports communities.

And this has been. Extremely destructive, and we see that over and over again. It's destructive to families, it's destructive to communities. Anytime you meet a public health need with the criminal justice system, rather than investing in our public health system, we're saying that jail or prison is going to take care of it.

And that's exactly the opposite. 

That is such a great point. I love the point you just made, that we expect as soon as someone gets pregnant, all of the issues they were dealing with would just dissipate. And if anything, it further exacerbates it, especially with the pending potential of criminalization.

And to think about, yeah, the self-sacrificing that you're talking about, if that concept, the idea that everything is to dissipate once you find out you're pregnant, if that were to be true. The amount of resources necessary for that to come to fruition is further demonstration of these stereotypes you're talking about, and of the gap in privilege and resources across, um, different groups for their maternal experience.

So I love. The way you put that, I think it's a really important framing for people to recognize that the lack of resources, the lack of healthcare, the, you know, generational trauma, none of that goes away simply because you became pregnant by choice or not. So I think that's a really. Really important thing to hold onto.

You mentioned at the end the idea of expecting prisons and jails to do a good job of addressing these issues, and so I'm wondering if you can speak specifically to the experience of being pregnant in jail or prison and what that means for both the mother and the child. 

Absolutely. Jails and prisons are not awesome places for.

Individuals who are pregnant, they don't get prenatal care in the way they should. They don't even get food in the way they should, and certainly not the support, the supportive environment for a healthy labor and delivery. We've been representing a client in Alabama who was brutally treated in in prison, in a county jail, I should say.

When it came to her to deliver her baby, she did it by herself in a prison shower. And, you know, she passed out and when she woke up, the prison staff were taking selfies with her baby while she was lying on the floor. It, it is brutal. Right? And, and we're seeing this with how brutally pregnant, immigrant women and migrant women are being treated in ICE detention facilities.

Those women are losing their pregnancies. So this is just pure hypocrisy. This is not about care. This is about punishment and control. You know, punishing and controlling people who are not quote unquote, behaving in the way they should, or belonging, um, to groups that are being marginalized or discriminated against.

Or targeted in some way. But the, you know, the other piece I just, I just want to say is that this should concern us all right? Because this is not contained just pregnant people who have substance use disorders. This is any pregnant person whose conduct by some authority is determined to be harmful to one's fetus, is a potential criminal.

Um. And I had a second pregnancy when my daughter was two years old. I had a miscarriage after I did a cross country work trip. My doctor, when I, you know, when I got home, gave me a pill to empty my uterus, I wouldn't have an infection. And sent me home to finish my miscarriage on my toilet. Right. Millions and millions of millions of women have done that today or in another state that could be a criminal act.

Right. West Virginia Prosecutor recently warned that, and some of his colleagues would expect people to call law enforcement to report their miscarriage and, and then they would be interviewed. That's the nice way of saying it. Around the circumstances to see if they did anything to cause the miscarriage and also to observe their demeanor.

When I had my miscarriage, I was very stoic. I told people I was fine. Well, that could have been something that was used against me, so. I think this is something that should concern everyone. M see loss is increasingly being treated as potentially criminally suspect. You know, in, in a, in a country where we have a million miscarriages per year, another 20,000 still births per year.

Anybody who has this experience could be treated as criminally suspect, and that should concern us all. 

It's so horrifying to think that, I mean, I know several of my friends who have experienced miscarriages and the deep sense of loss and pain, and then to be layered with blame and shame. Just, I can't even imagine why.

Why do you think this is becoming so prevalent? Why are we entering into a society where potentially going on a road trip or wanting to place blame on a miscarriage, like what is happening in your opinion? 

Well look, the anti-abortion agenda is not just to ban abortion nationally. It serves to impose very scripted gender roles on women to punish anybody who's not behaving in a, uh, in a good mommy way to erase L-G-B-T-Q people, you know, and it, and it's, and it's like.

Part of this agenda to push women back into the house, or certain women to push them back in the house to have more babies and, you know, punish everybody else. So, um, so I think this is the environment that we're currently in and that we need to fight back against because we shouldn't just give up all the progress that we've made, um, you know, as, as, as women and as as a society, as a diverse society.

And of course, the irony is. That this is at the same time that 14th Amendment rights are being attacked for communities of color, the civil rights schemes that we have all made, and even birthrights citizenship for actual people who were born in this country are being attacked while this movement is trying to obtain 14th amendment rights for fetuses.

Right. So there are layers of patriarchy and layers of white supremacy, sounds like. 

Absolutely. 

Yeah. In this regard, could you give definitions of what pro-choice means really? 

I mean, I don't use that term pro-choice. You know, it, it never resonated with me given how I became involved in, in this movement, the framework that I'm most comfortable.

Um, is reproductive justice, which is a framework that was developed by black women, um, to really reflect the full spectrum of reproductive injustices, um, experienced by black women and women of color and reproductive justice is. The right to bodily autonomy. The right to not only not have a child, but also the right to have a child and the right to be able to raise our children in safe and sustainable communities.

And the reproductive justice frame has also evolved because of the maternal mortality that's experienced by black women, um, and, and the horrible experiences that they have when they go to give birth. Right. So it's, it's also evolved to include birth justice, which is the right to have the birthing experiences that, you know, pregnant people want with safety, dignity, and respect.

So it's all of those things. 

Yeah. Other than for solidarity and the goodness of humanity. Can you rope in? Why? Men should care about this, why white women should care about this. How is this impacting beyond those more marginalized and oppressed communities? 

Well, I, I think, you know, as, as I mentioned, the largest number of women who are now being affected by pregnancy criminalization is poor white women.

Um, because the, you know, the, the drug crisis has, has moved from. Urban areas to rural areas, and its, and its meth and, and fentanyl and so forth. So the nature of the drug crisis has changed and those are the communities that are being affected. And these are the same legal frameworks that are being applied to poor white women as well.

I mean, women of color and black women are still being impacted, but just in sheer numbers, it. Poor white women, but also this framework affects access to contraception because if, if a fertilized egg is a, is a person, and there's some arguments, again, not necessarily evidence-based, but there's some arguments being made that some contraceptives are.

Abort of patients, right? So there goes access to contraception IVF we see can be affected. About a year ago, year and a half ago, there was a case in Alabama where the state Supreme Court said that for a wrongful death statute for wrongful death claim, that came about because there was some negligence that happened at.

Uh, um, an IVF facility in a hospital where some embryos were lost, that the people who own those embryos could sue for wrongful death of a child because those embryos are extra uterine children being kept in frozen nurseries. And, and that just halted IVF in the state until the legislature acted.

Alabama also has a constitutional amendment called the. Same city of life amendment, which voters understood to be like a value statement, but I think IBF is vulnerable in the state if somebody else files a different kind of claim under the state constitution. So, um. So it affects IVF contraception. It affects the ability of pregnant women and, and pregnant people who are experiencing obstetric emergencies from getting needed emergency care.

There's a federal law called the Emergency Medical Treatment and Active Labor Act that basically requires this, you know, anybody that goes to the emergency room should be able to get stabilizing care so that their health does not deteriorate. 

Mm-hmm. 

Because of this ideology and because of abortion bans.

For example, in Idaho, Idaho who has been challenging the application of, of this federal statute, there are people who have died, right? There are people who have to go to the brink of death. And get sepsis before they are entitled to get emergency medical treatment or have to be sent by helicopter to another state to get the appropriate medical care.

So we are seeing more and more of these kinds of cases this summer. We saw in the context of end of life care or end of life decision making, where a woman in Georgia was kept on machines after she was declared brain dead because she was pregnant and you know. She didn't have, you know, she had not made a decision about that her family, um, you know, didn't necessarily have input in that.

We saw that in a prior case, Texas, this woman called Marlis Munoz, where against her family's wishes, she was kept on machines. So even in death, you cannot. Be treated with dignity because of this idea that an embryo or fetus has a separate identity from the pregnant person. So the consequences of this ideology are very expansive and everyone should be concerned.

And you raised the question of men well. You know, men lose partners un to maternal death. Men lose partners to imprisonment, men lose custody of their children, or they have to raise their children without their partners. So this is something that should be concerning everybody. 

Mm-hmm. Yeah. When you were touching on the substance abuse piece and the idea of the lack of resources, I was thinking about women who are, uh, prescribed medication for mental health.

The differences between the little legitimizing of prescription medication for dealing with trauma and mental health issues versus the use of other kinds of drugs that maybe aren't prescribed to attend to the same kinds of issues and how we view those so differently because of the framework of the criminal legal system and our, our socially constructed definitions of right.

And wrong and good and bad, and understanding how malleable these terms can be over time. Um, and one of the things that I was reading in one of the reports you all created was the broader social determinants of health and how. Uh, there are things like poverty and housing insecurity, domestic violence and lack of support, stress, education levels, access to care.

All of these things can have even more impact on the mother and the health of the baby than even substance use during pregnancy. And so I think that ties. Really nicely. Back to your idea of reproductive justice and understanding that this is a community level issue and not an individual level issue.

Thinking solely of the mother in a bubble. 

Absolutely. I mean, I think there's an overstating of the impact of. Drug use on pregnancy and understating of all of these other factors on the impact on pregnancy. There's so many reasons why people either miscarry or experience a, a stillbirth. It's multifactorial.

And the point that you made about prescribed drugs versus not prescribed drugs. We have seen cases where people are being. Criminalized for being on prescribed medication under the care of a doctor. So sometimes this distinction is not made. You're supposed to just like suck it up. We see this hope made up controversy around Tylenol, which is one of the, the safer, you know, one of the safe ways of controlling pain when you are pregnant.

Pregnant people are being told, well, if, if you take one of the few avenues or the. Patients that's evidence-based, safe, you know, to control pain that you're gonna be causing autism, which is again, not based in any evidence. And so the expectation that if you're pregnant, you're just supposed to suck it up and be self-sacrificing, not address your own healthcare needs.

It's like you're damned if you do or damned if you don't, because if you're not taking care of your healthcare needs and something supposedly happens, it's your fault. If you are taking care of your healthcare needs and something supposedly happens, it's your fault. So, um, it, it really is dehumanizing to the.

To the person who is pregnant and, um, you know, we, we just have to get beyond this. We, we have to understand that pregnancy is unique to each person. Each person needs their own, uh, needs to be able to make their own healthcare decisions, um, and needs acts confidential. Access to healthcare that does not result in surveillance.

Um, or control, um, or punishment. You know, sadly, one of the, one of the reports that we recently published in September was looking at how many pregnancy criminalization cases we've been able to document since the Dobbs decisions that overturned Roe versus Wade. And we have documented 412 pregnancy related prosecutions across 16 states in the first two years after the loss of roe.

Um, Alabama, Oklahoma, and South Carolina lead the nation with the majority of cases, but we've also documented some cases in places like California, Pennsylvania, and Ohio. Um, just because prosecutors have just enormous amount of discretion. And again, we, we really have to. Question, like, what is the point here?

The only conclusion that we can come to is that this is about punishment and control. 'cause if it really were about concern about health and wellbeing, we would not have the maternal mortality rate that we have in this country. We would not have children being afraid that they would be shot in school.

Um, that we, we would not have, you know, the, the families at the brink of losing SNAP benefits that's paying for food. So let's just be very clear-eyed about what this is about. 

I was thinking about the ways that we're placing blame and shame on this singular individual, and I'm wondering if this is something, it says something about our society that we.

Have done a poor job in cultivating and prioritizing community, recognizing that again, these issues are community level issues. They are not individual level issues. The reason why a mother would be criminalized, right? Some of the underlying reasons that would lead them into a case are often community level.

Issues, right? Access to care, access to mental health. Thinking about intimate partner violence. These things that could lead to criminalization are far more of concern around the community than just, again, this woman living in a bubble. What are some of the outcomes of these 400 plus cases? Is it all leading to prison time?

Like what are, what is actually happening? 

These are just cases. Where people have been charged, and we don't know the outcomes of these cases yet, but we can. But I can tell you from our prior research could, because we've been documenting pregnancy criminalization, going back to 1973, we have seen many, many cases in which people have gotten some serious sentences.

One case that we worked on in Maryland, someone received a sentence of 30 years in prison for having a stillbirth. The supposed evidence that the prosecutor introduced to show that this person like killed her baby was that she didn't get prenatal care. She didn't share information about the fact that she was pregnant and that early in her pregnancy in Maryland where abortion is still quite legal, she researched abortion.

That was the evidence that was introduced for which then she got a 30 year sentence. Luckily, the state Supreme Court agreed with our arguments. That this, that Maryland law does not recognize separate legal rights for fetuses and that the evidence was really, this is not the legal term, but like inflammatory, basically.

Because again, it, it was like this narrative of the bad mommy. It was gender stereotype. So the state Supreme Court did overturn the, the sentence and demanded a new trial. So hopefully she'll be out soon, but, but these are the kinds of cases that we are seeing. People are getting real. Serious jail time, we've been able to intervene, um, and support the legal defense of many of these cases and, and get different outcomes.

And that's one of the lessons that we have learned is that if, if we're able to challenge these cases, you know, get in there early, especially, we can really disrupt this even in, even in states where the law is, is pretty difficult because there's a lot of prosecutorial overreach that is happening in these cases.

Yeah. And. Are the prosecutors representing the state then? Like who is considered the victim here other than the fetus or the embryo? 

Well, I mean that's, that is, that's the whole thing of it. You know, the prosecutors represent the public, but. The victim in, in this, this type of scenario is supposedly the the fetus or the embryo.

That is so interesting. I teach a victimization class and one of the things that I teach my students about endlessly is the cycle of victimization and the. Quote unquote, victim offender overlap. And this understanding that these, uh, labels are again, malleable and dependent upon the power and privilege of those who are part of whatever system is creating the label.

So yeah, it's, it's fascinating to think about. That's 

exactly right. And we even saw that during the, the war on drugs because. We, we know that drug use is pretty consistent across the board, across demographics. Um, but it was, it was crack cocaine that was targeted, not powder cocaine, you know, because during that time, women who were using powder cocaine during pregnancy were not being criminalized in the same way it was being treated as a health issue.

There are different approaches that we can take. Um, and clearly the use of the criminal justice system is really detrimental. It just sets us backwards. Um, one thing that we, we know is that, and again, contributing to the maternal mortality rate of this country, overdose has become a leading cause of death during and shortly after pregnancy.

And if we're driving people away from care that is. A sure fire way of making that worse. 'cause there is no opportunity for medical intervention if people don't trust their doctors. If people are afraid to go to the doctor because they'll either have their children taken away or because they'll end up in jail.

Yeah. Overdose is also. Within the day after release from jail is one of the leading causes of death post-incarceration. So it's the same kind of issues. Yeah, 

it's the same. 

You know, I mean, this feels so dire, and I think people are gonna listen to this and be like, all right, I'm not a lawyer, I'm not a policy maker, I'm not a legislator.

What can I do? What can I do to support the cause? What can I do to make change? You know what? What would you say to someone who's asking those kinds of questions? 

One thing is when people hear reporting on anything that kind of rings as bad, mommy people should be very skeptical. Don't just buy the narrative that initially comes out.

'cause there's always a deeper story that's not sensationalist. So that's the first thing. The second thing is, is demanding. Instead of the use of the Carceral system and the family policing system that policy makers invest in, actually what communities need. Invest in healthcare, invest in treatment programs, and invest in training programs for the healthcare system.

Require informed consent of testing of. Of, of pregnant people. You know, a lot of these, either through interpretation or state law, people are being tested without informed consent, which then generates like a whole chain reaction of bad. Some of the people that we've been intervening with are dealing with the child protective system because they had poppy seeds in their food.

On their way to the hospital for labor and delivery. There needs to be informed consent laws. There has to be stronger privacy protection in the, in the patient provider relationship where information does, does not get shared with law enforcement. So there's a lot that we can do. People can sign up for our newsletter, um, a pregnancy justice us.org to follow these issues and be up to date on calls to action.

So, so there's a lot you can do. 

Yeah. When you say demanding doing X, Y, Z, would that be through signing petitions or calls to action that you all would be putting out? Or what does demanding look like in practice? 

A, a couple things. Um, we work on legislation with state partners, so we inform people about bills are being considered or to reject harmful bills, um, that are being introduced right now in the last legislative session of, um.

2025. There were 15 states that introduced really horrible bills, uh, that would make, um, seeking abortion basically felony, homicide, or murder. And 12 of those states would implicate the death penalty. So you could be involved in. Um, opposing those bills. Um, and again, it's all based on this concept of personhood and built on the backs of people who already have been criminalized.

So these, these issues are very intersecting. And then also just, you know, go to your town halls and talk to your policy makers about what are they doing to invest. In communities to invest resources for healthcare. What are they doing to support childcare? Right? You know, there are all these kinds of things that people can be.

Asking their policymakers to prioritize. That is not the criminal justice system. 

The cycle of harm is so wild in this system where we are punishing for the supposed death of a fetus. Through death. It makes no sense. Like I, I wanna hammer home that this is not just, she should have known better. She should have told people she was pregnant, she should have, get, gotten prenatal care.

It's what, what led that person to not seek those things? When people hold these values supporting the criminalization and supporting the death of women who maybe went on a road trip or didn't go seek. Prenatal healthcare or just Googled about abortion, right? If you're supporting those values, really encourage the self-reflection and interrogation of why, just just without judgment, but really understanding the why.

And I'm curious for you, because you're in this. Space, and I'm sure you are in conversation with people who do hold those values. What is some of the why that you're hearing and what might be some of the curiosities that you can spark in someone to kind of shift that framework? 

Well, the, the, the interesting thing is people actually understand the harm.

If you break it down, like people don't understand a field personhood, quote unquote. Necessarily means, but, um, there's research that we did with the National Women's Law Center where we found that people understood that it's a bad idea to grant separate legal rights to embryos, fertilize eggs and fetuses.

People find that to be absurd because, um, you know, of all the impacts that you've been talking about, but then people understand that there's a difference. Between an actual living, breathing person and, you know, and, and, and a, and a fetus. Um, or, or, or a baby that's born so people understand that distinction and understand why it's a bad idea, um, to create this whole legal regime to protect right, of somebody who's not a person yet that resides in the body of somebody else.

It's, it's just such an absurd idea. Um. And this is like across demographics to understand why this is just not good for pregnant people, why it's not good for society. Why, why it's not good for families and community, and. Like, and, and, and I do think we need to start interrogating, but we're challenging this, this idea or this claim of being pro-life.

What is pro-life about that when it causes so much harm? When it actually causes death, right? Death to the pride in person. And it's actually not good for infant health either. So we really have to start challenging that and really start talking about what. Does actually support health? What does support children, what does support babies and families in a way that is not about gender stereotypes, that is supportive and not destructive?

Yeah. So just to kind of overview, wrap up, put in a pretty little bow, all the horrible things we've been talking about. So we need to prioritize care over criminalization. That is the number one thing. Yes. Especially if we are saying that we want a healthy society. We want healthy babies and healthy families.

If that is the why, we need to prioritize care over criminalization because we know we have evidence. This is so important. We have the data to support that. Criminalization does not. Actually a deter miscarriages. It doesn't deter individuals from engaging in substance abuse because you're not actually getting at the root of these issues through criminalization.

You are when you go through a caring system. So prioritizing care over criminalization need to demand more care. We need to demand the decrease of criminalization, and we can do this. Especially by following the Pregnancy Justice newsletter and following the calls to action to understand what can be done on a community level, we need to be skeptical of the news, understanding, even if it's a trusted, supposedly liberal resource, there could be propaganda still.

So being critical, triangulating data, so looking at multiple news sources to see how they're speaking on these things and really challenging. Our belief systems really turning that, holding a mirror to ourselves and asking why we might hold certain beliefs or value systems about this, and really like every layer.

Why? Every layer? Why? Because they should have known better. Why should they have known better? What leads you to think that again? Well, we want. All babies matter. Yes. Why? And how do, what does that actually look like in practice? You know, thinking about that challenge and not viewing it with defensiveness, viewing it with openness and vulnerability and encouraging conversations around this.

Is there anything you'd wanna 

add? Yeah. And yeah, and, and I, I would, I would say that, um, pregnant people matter. Everyone should have the ability. To make decisions about their own healthcare, about their life decisions, and be treated with dignity and respect. We just don't have the right to make those judgements about people.

So I. I hope we can approach this with compassion and care and not with the desire to judge him and punish, because that's just really counterproductive. 

Yeah. So outside of all of this, I like to close every interview with the three things that have your attention right now outside of. Pregnancy, outside of abortion and miscarriage and law, what are the three things that are just captivating you in this moment, whether it's a book, a show, podcast, an activity, something that is giving you life right now.

Oh my goodness. Okay. Three. I love my gardening, my family and friends, and I'm excited that I'm gonna be going to one of the upcoming dad bunny concerts. 

Fun. That'll be great. Oh, I'm jealous. 

Oh 

my. I missed the one in Puerto Rico. I couldn't go. Couldn. Well, couldn't, that would be amazing. Couldn't go. So, um, I'm really excited.

Great. Well, thank you for speaking to me about this. I know that this is such an important issue for everyone listening and because of the narrative. In the news, there's so much confusion around what this means and the actual implications. So I hope that this brought some clarity and if you would just send me some of the resources that our listeners, yes, you mentioned a couple books, so if there's anything that you think for anyone who wants to learn more about this, I can put it in the show notes.

Okay, great. Yeah, we're happy to do that. 

Great. Well, thank you again. 

Thank you for having me. 

Thank you so much for listening to this critical conversation featuring Lordes a Rivera. The main point that I think is so important made in this conversation is the idea that we expect all of the trauma. All of the things that make us complex, all of our potentially maladaptive coping mechanisms to just dissipate when we become pregnant.

The amount of resources and privilege required to have that be a possibility is immense. And if we think about how we're putting blame and shame on these people who are maybe not able or not willing to make the sacrifices necessary. We have to think about what kind of support is required to benefit and have the most healthy mother and child, and that certainly isn't criminalization.

We have to think about how to provide care. It actually supports life. This isn't about choice. This is about justice. This is about fairness. This is about equity, and while you can disagree with the lifestyles of other people, you can disagree with the concept of abortion. It's important to recognize the context and to encourage critical thought around why we hold certain beliefs.

What is our life experience that has led us to hold certain values? One of the things that she says is, you can either be morally right or effective, and this is that time when we have to lean into efficacy. If we really. Health to be the priority. If you've learned anything from listening to this podcast over the years, you know that the replacement of the healthcare system with the criminal legal system will always result in more victimization.

Therefore, if we actually want a safer and healthier society, we have to provide compassionate care. Some may consider that. Soft on quote unquote crime or letting people off the hook. But we have to recognize that punishing people, especially for their pregnancy outcomes, leads to more death. So if you are supportive of more death, I hope that you can take a second to turn that mirror on yourself and ask why.

Again, my name is Abby Henson. I hope that you enjoyed this. If you did, please leave a review. You can also text me or email. The contact info is in the show notes. I can't wait to hear your feedback.