SC files more criminal charges involving pregnancy than any other state, report finds

COLUMBIA — South Carolina charged at least 381 women with crimes related to their pregnancy over the past three years, far more than any other state, a national advocacy nonprofit found in a report released this week.

While the report focused on the aftermath of the U.S. Supreme Court’s 2022 ruling on abortion, almost all of the cases documented in South Carolina involved allegations of drug and alcohol abuse during pregnancy, not an abortion, the Pregnancy Justice report found.

The 381 women charged in South Carolina represent more than one-third of the 902 cases researchers found nationwide. Oklahoma ranks second with 222 cases.

The true nationwide total is almost certainly higher, the national advocacy group said. The report is a precursor to a more complete study set for release in 2028, so the numbers will likely continue to rise as researchers discover more cases, said Wendy Bach, who co-led the study.

South Carolina stands out partly because court information was easier to access here, she said.

Substance abuse and abortion laws

U.S. Supreme Court’s June 2022 ruling that the U.S. Constitution does not guarantee a right to an abortion overturned a nearly half-century precedent established by Roe v. Wade and returned the legality of abortions to states to decide, resulting in a hodgepodge of laws nationwide.

In South Carolina, most abortions are illegal after six weeks of pregnancy under a law that took effect with a state Supreme Court ruling in August 2023. In pregnancies due to rape or incest, abortions are legal through the 12th week. Other exceptions to the ban are medical complications that threaten the pregnant woman’s life or anomalies in the fetus so severe they’re unsurvivable after birth.

That law does not allow criminal penalties for women who seek or obtain abortions.

South Carolina’s high number of cases is likely the result of a nearly 30-year-old court ruling, said Bach, who is also a law professor at the University of Tennessee-Knoxville.

In 1997, the South Carolina Supreme Court ruled a fetus counts as a child, allowing prosecutors to charge pregnant women under child abuse laws. The two other states with similar rulings, Oklahoma and Alabama, had the second- and third-highest numbers of cases.

While other states have used those charges as well, the numbers are higher in places with court precedent “because it’s been explicitly blessed by the Supreme Court as a legal theory that you can use to prosecute someone,” said Madalyn Wasilczuk, an associate professor at the University of South Carolina who co-led the study.

“What really strikes me is how normalized these kinds of prosecutions have become in our state,” Wasilczuk said.

Nationwide, most of the charges found by researchers involved women using drugs and alcohol during pregnancy. That was true in South Carolina as well, where 377 of 381 cases involved substance abuse, though some may have involved other charges as well, according to the nonprofit.

Thirteen of the 902 cases documented across the country stem directly from getting or trying to get an abortion. The nonprofit declined to say how many, if any, of those 13 women were South Carolinians, citing concerns about identifying them.

Data questions

The difficulty in tracking down data in other states likely contributed to South Carolina’s lopsided total, Bach said.

In the Palmetto State, researchers were able to get county-by-county breakdowns of charges involving pregnancy. Getting similar data from court systems in other states was much more difficult. Researchers relied instead on news reports and tips from advocates, Bach said.

If direct comparisons were possible, South Carolina would likely still be among the nation’s highest for pregnancy-related charges due to the legal precedent, Bach and Wasilczuk said.

How much the true numbers differ is unclear.

“I think we both believe that there are more cases in South Carolina than in some other states, but also, we know that there are states that we just can’t get data for,” Wasilczuk said.

The data collection methods also left some questions in the report’s findings.

The numbers aren’t comparable to previous studies from the nonprofit because researchers used different methods, which produced different results, Bach said. That means the data can’t show whether the number of cases increased over previous years.

And researchers didn’t track the outcomes of cases, making it impossible to say how many women were actually found guilty of the charges or sent to prison.

Takeaways

The report’s findings point to “an increasing dedication to the idea that the fetus can be the victim of a crime that the pregnant individual commits,” Bach said.

“So, the body of the pregnant person can be a crime scene, and the fetus is the victim of that crime,” she said.

The report found 70 cases nationwide involving the loss of a fetus, whether through an abortion or a miscarriage, Bach said. That seems to be on the rise after the Dobbs decision, likely because of anti-abortion laws, she said.

She was accused of murder after losing her pregnancy. SC woman now tells her story.

“The level of suspicion and criminal investigation of pregnancy loss that is happening across the nation after Dobbs is striking and disturbing,” Bach said.

One prominent case involving a pregnancy loss came out of South Carolina. In 2023, before the state’s abortion ban took effect, a college junior was charged with homicide by child abuse after unexpectedly giving premature birth in the toilet of her apartment.

A grand jury later declined to indict her, clearing her of the charges. The charges came from the woman leaving the baby in the toilet, not the premature birth itself, KFF Health News reported.

When prosecutors charge pregnant women under child abuse laws, they are usually trying to protect children and families, Bach said. But criminal charges might do the opposite, she said.

A pregnant woman struggling with addiction who hears she could lose custody of her baby or get sent to prison probably won’t tell a doctor she needs help, Bach said.

In 360 of South Carolina’s reported 381 cases, court filings suggest evidence came directly from doctors and nurses, who are mandated to report crimes, Bach said. At the same time, though, that could erode trust between a woman who needs help and the doctor who could provide it, she said.

“They know, ‘If I am struggling with substance use disorder and I am pregnant, and I go to my doctor, and I tell them that, these guys are going to hand that information over to the family policing system, and/or to the cops,’” Bach said. “Why would anyone in their right mind seek care?”