Editor's note: America has a long history of treating the poor like criminals, from legislation banning the transportation of poor people across state lines to anti-vagrancy laws that could land you in jail if you didn't have a job or a home. We've come to rely on the criminal justice system to deal with the poor, even as more and more Americans fall into poverty. The following article is part of a series that looks at the diverse ways our country criminalizes poverty, including laws targeting the homeless, the surveillance of welfare recipients, the re-emergence of debtor prisons, and extreme policing tactics like stop-and-frisk.

After suffering a stillbirth in South Carolina, 21-year-old Regina McKnight was arrested and charged with murdering her fetus because she used cocaine while pregnant. McKnight served eight years in prison for a loss that, as it turned out, she did not even cause. In 2008, with four years of her sentence left to serve, the South Carolina Supreme Court said the state used “outdated” research to make its case and overturned McNight’s conviction.

While prosecutors had claimed McKnight’s cocaine use caused her stillbirth, the Court said McKnight’s attorneys failed to secure testimony from experts who would have explained how “recent studies show[ed] that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor.”

McKnight’s case is not unusual. A recent study examining the outcome of pro-life policies since Roe v. Wade through 2005 identified more than 400 pregnant women who were arrested, incarcerated or forced into health “treatment” they did not want or need. As the data make clear, drug war stigma and racism were central to such prosecutions: 84 percent of these cases alleged that the woman, “in addition to continuing her pregnancy, had used an illegal drug,” particularly cocaine. Fifty-two percent of the women targeted are black.

Legal Rights for Fetuses

The cases do not necessarily include the death of a fetus, as in McKnight’s case. A woman who uses drugs can be punished for the assumption that she has harmed her fetus, even if her drug use is the only evidence against her. In states where feticide or “personhood” measures define an egg, embryo or fetus as a child, "child abuse" can occur in the womb.

In South Dakota, a 12-weeks pregnant, homeless, 28-year-old Native American woman, Martina Greywind, was charged with “reckless endangerment” for using inhalants during her pregnancy. After two weeks in jail, she was able to obtain a release for a medical appointment where she received an abortion. Her case was dismissed, with the state noting that her pregnancy’s termination made her charges “no longer ripe for litigation,” while the prosecutor told media it was “no longer worth the time or expense to prosecute her.”

Lynn Paltrow of the National Advocates for Pregnant Woman, lead author of the pro-life policies study, says that cases targeting women who become pregnant, go to term, and use an illicit drug or alcohol are part of the larger effort to create separate legal rights for fertilized eggs and embryos. One such precedent was established last month in the Alabama Supreme Court, which ruled that “the crime of chemical endangerment” — exposing a child to a controlled substance or the environment in which it was produced — applies to a fetus in a womb. The concurring opinion defined a fetus as a child, noting that the state has the responsibility to “protect life.” In these cases, the pro-life rhetoric works with equally flawed drug war stigma to criminalize women for crimes against an “unborn child.” While the Alabama ruling rests firmly on the belief that a fetus is a child, it also stems from the notion that exposing infants to methamphetamine is so damaging it should be labeled a crime. Studies have repeatedly found that the developmental effects of prenatal exposure to methamphetamine are not clear. According to the American College of Obstetrics and Gynecology’s special information sheet about meth exposure in-utero, "the effects of maternal methamphetamine use cannot be separated from other factors," and there "is no syndrome or disorder that can specifically be identified for babies who were exposed in utero to methamphetamine."

Child Services

On February 7, the New Jersey Supreme Court ruled that a positive drug test does not prove parental neglect and that the state’s child protection services do not have jurisdiction over pregnant women. “The court’s decision protects the rights of all pregnant women and in so doing actually protects maternal, fetal, and child health,” Lynn Paltrow said.

While the Alabama ruling interpreted a criminal statute, the New Jersey law interpreted a civil statute. The former provides for a criminal case and prosecution, while the latter turns the matter over to child protective services, which is not always as benign as it sounds.