Pressure from advocates for incarcerated people and investigative reporting pushed California officials to take action in recent years. In 2021 state lawmakers passed a reparations program to provide $35,000 to each person who was involuntarily sterilized while in state custody. 

But that program has compensated only a fraction of the around 800 women identified by a state audit who underwent procedures that could have resulted in sterilization while imprisoned between 2005 and 2013; that state audit also found that prison doctors regularly violated the consent process for such procedures during that time. As of June, the California Victim Compensation Board (CVCB), the body tasked with determining who gets reparations under the program, has approved compensation for roughly 120 of those survivors, according to documents from the board.

The board has denied more than 430 of the 549 applications it reviewed, rejecting about 4 in 5 people who sought compensation, according to documents from the board. The board told Bolts in a statement that more than 200 of the applications it denied came from “currently incarcerated male inmates.”

Advocates helping people seek redress for being involuntarily sterilized in state custody say the high denial rate is a result of the board’s narrow definition of sterilization. For instance, until recently, the board rejected cases of women subjected without consent to endometrial ablations—a procedure that, while not clinically defined as sterilization, greatly reduces the chances of pregnancy and leads to much more dangerous pregnancies for people who can still become pregnant.

This summer, the state compensation board was forced to reconsider an application from Geynna Buffington, who underwent an ablation procedure in prison without her consent that made her unable to get pregnant. The board had denied Buffington’s application four times before she sued and an Alameda County Superior Court judge ordered the board to reconsider, ruling that she was wrongfully denied compensation. The board approved her application about two months later.

After the June court ruling, California lawmakers passed a law that gave people who had previously been denied up until Jan. 1, 2025 to appeal their rejections and ordered the board to reconsider those cases. A board spokesperson told Bolts in a statement that it sent letters to applicants who had previously been denied telling them they could still appeal. 

John Moore, an Oakland attorney who represented Buffington, says her case should force the board to approve other people who sought compensation for ablations. But he’s also worried that, with just weeks to go until the January deadline, many victims still don’t understand that the board will now reconsider a previous rejection. 

Moore also says the extended deadline to appeal rejections won’t help women who experienced forced or involuntary sterilizations in prison who never applied in the first place because of the compensation board’s narrow approach. The board stopped receiving new applications at the end of 2023. And while the board conducted outreach to victims when it was receiving applications, Moore says those efforts overlooked people who didn’t fit their limited standards for sterilization procedures.   

“I think there’s a whole population of hundreds of other women who didn’t even know about the benefit program because they never got the notice that the state was required to send, because the state determined that if you had an ablation you didn’t qualify for benefits,” Moore told Bolts.

Advocates say the state’s compensation program created another burden that retraumatized those who already experienced an injustice by the state. Jennifer James, associate professor at the Institute for Health & Aging at the University of California, San Francisco, had been working with incarcerated women who were sterilized with an ablation procedure and said it seemed like many have given up on seeking restitution.

“For some people who were denied, they just feel like once again, no one cares, and that’s incredibly heartbreaking,” James said. “I think that it felt to some people like it was more of a fight than it should have.”

California’s shameful history of involuntarily sterilizing people goes back to the early 1900s, when about 20,000 Californians were forcibly sterilized in state-run facilities, mostly mental institutions, from 1909 to 1963 to rid society of people labeled “feeble-minded” or “defectives.” California was such a leader in eugenics that historians say the Nazis sought the state’s advice for their own sterilization program in the 1930s.

News about the forced sterilizations in California’s state-run prisons came to light in 2013 with an exposé by the Center for Investigative Reporting, which uncovered that doctors under contract with the state prison system sterilized nearly 150 women without the required approvals between 2006 and 2010. 

The news outlet also interviewed an OB-GYN at Valley State Prison, James Heinrich, who claimed he was providing an important service to poor women. “Over a 10-year period, that isn’t a huge amount of money compared to what you save in welfare paying for those unwanted children—as they procreated more,” he said in 2013.  

In 2014, the California State Auditor found many violations of the consent process leading up to the sterilization procedures, including physicians failing to sign documents certifying that the women “appeared mentally competent and understood the lasting effects of the procedure.” They also found that the sterilizations were not always reported if they were conducted alongside another procedure, such as a woman giving birth.

The audit also found that the majority of women who were sterilized were between the ages of 26 and 35, and most had a high school reading level. Of the women who received a tubal ligation procedure, which blocks or removes fallopian tubes to prevent pregnancy (one of the only procedures the compensation board previously deemed eligible for reparations), between 2005 and 2013, 50 were white, 47 were Hispanic, and 35 were Black. For most, it was their first time being incarcerated.

The report led California to enact a law in 2014 that explicitly prohibits prisons and jails from performing sterilization procedures for the purpose of birth control. Through organized workshops, letters, emails, and social media posts, advocates had raised awareness about the forced sterilizations and fought for more protections.

“Pressuring a vulnerable population into making permanent reproductive choices without informed consent is unacceptable, and violates our most basic human rights,” said the bill’s author, state Senator Hannah-Beth Jackson, in a statement following its passing.

James said that there may be even more women who experienced involuntary sterilizations in prisons who might not have realized it happened to them. Some were told they were having minor procedures like a biopsy only to end up undergoing a full hysterectomy. James says women often underwent sterilization procedures for non-legitimate reasons. 

“They were told they had cancer but they didn’t have cancer, and they were told the only option was a hysterectomy and not offered anything else,” James said. “We will never know how many of those 800 people just from 2005 to 2012, their sterilization happened with proper informed consent and with medical necessity and without any infringements upon people’s autonomy, any coercion.”

Following the law banning sterilization as birth control in prisons, advocates began rallying for reparations for those who already experienced forced and involuntary sterilizations. The California Coalition for Women Prisoners and Justice Now were among some of the advocacy groups that pushed for a compensation program during multiple legislative sessions before it finally passed in 2021. The California Victim Compensation Board (CVCB) began hearing applications in 2022. 

The board is a three-member body currently comprised of Contra Costa County District Attorney Diana Becton, who was selected for the board by Governor Gavin Newsom in 2021, State Controller Malia Cohen, who was first elected to her office in November 2022, and Secretary of Government Operations Amy Tong, a Newsom appointee who has led the state agency that oversees the board since early 2022. 

Advocates say they quickly found that the board’s process excluded many women based on the type of sterilization procedure they experienced. 

“They didn’t believe that ablation was part of sterilization,” said Chyrl Lamar, an organizer with the California Coalition for Women Prisoners who has been helping some of these women appeal their denials. “This is not fair. Some people had gotten out and were trying to have kids with zero results. They can’t have kids.”

Moore, who represented Buffington in her appeals, said the board’s narrow approach made it difficult for many victims to make claims because prison doctors had used several different procedures to sterilize women besides the ones approved by the board as eligible for compensation. Moore said that advocates and lawmakers explicitly left the definition of a “sterilization procedure” open because of this history. He said they “didn’t want women who were entitled to benefits to be frustrated by the state doing exactly what the state did, which is to say, ‘Well, you had an ablation procedure, but that’s not sterilization.’”

According to CVCB documents, 104 of the 431 people who were denied compensation for their sterilization tried to appeal their denial before the court overturned Buffington’s rejection this summer. Of those appeals, only one was found eligible and the rest of the denials were upheld. 

Since this summer’s court decision, advocates like James and Lamar have been trying to reach currently and formerly incarcerated people to let them know that they have until Jan. 1 to file a letter with the compensation board asking them to consider their case.

Lamar says she regularly receives letters from incarcerated women asking questions about sterilization procedures that they didn’t realize they underwent or confused by the procedure they were coerced into that stripped them of their reproductive freedom. She uses a Global Tel-Link account to message women who have reached out about their sterilizations, and helps them work on their appeals. She said that outside of the women who reach out, it can be difficult to identify others who could benefit from the compensation program and help them.

“The problem is a lot of people have parole, go home, change prisons, so I can only really reach the people that are inside,” Lamar said. “Some of the people have given up.”

James said that she has heard women who experienced sterilizations in prison talk about how traumatizing it is, and the process of having to apply and appeal can add to that pain. She said that many have become discouraged or given up.

“There’s no amount of money that’s enough to compensate for having your organs taken away,” James said, “But I think that for folks who have been able to be compensated, there’s a feeling of legitimation, like this did happen, like this was a harm, and that is really meaningful, in addition to the money being a huge help to folks.”

(This story was updated Dec. 20, 2024 after further comment from California’s victim compensation board.)

The post For Survivors of Forced Sterilization in California Prisons, a Rushed Shot at Justice appeared first on Bolts.

Cynthia Mendoza’s first pregnancy, in the free world, was a time of enveloping love and anticipation. But in 2006, six months into her second pregnancy, Mendoza was arrested and jailed pre-trial in a Lynwood facility overseen by the Los Angeles County Sheriff’s Department. Once there, she was sent to solitary confinement, where every good thing she remembered about pregnancy became a horror. “I had nobody to talk to, I had nobody to comfort me,” she told me. Cut off from human contact and the warmth of the sun, Mendoza’s mental health quickly deteriorated. Her access to proper nutrition was so poor that her hair started falling out.

Mendoza gave birth shackled to a hospital bed, and she only got to spend three days with her newborn son. On the third day, jail officials handed him off to her father. Then, already suffering from postpartum depression, she was sent back to solitary confinement. “It felt like I was just stuck in this black cloud, and I could not see a foot in front of me,” she said. She would remain there for nearly three more years—all while she was still innocent in the eyes of the law. 

Some 16 years later, in 2022, a broad coalition of organizers in California introduced an ambitious bill to limit the use of solitary confinement in the state’s prisons, jails, and detention centers—and outlaw it entirely for pregnant people, as well as a few other categories of vulnerable individuals. They called it the Mandela Act after the South African leader, who was held in solitary confinement for at least six of the 27 years he spent jailed. “Solitary confinement, if done a certain way, drift[s] into the area of torture—and these are correctional facilities, not torture camps,” California Assembly Member Chris Holden, the bill’s sponsor, told me. 

Mendoza watched the bill’s progress with excitement. If it passed, she thought, no one else would have to go through what she did. No other children would have to grow up, like her son had, grappling with the realization that the time they spent in their mother’s womb had been, for her, a time of total deprivation and isolation. 

In 2022, the Mandela Act was passed by the state legislature, but California Governor Gavin Newsom vetoed it. In 2023, organizers negotiated with the governor’s office to try to come up with a compromise of the Mandela Act that he would consider signing into law. Then, this year, a different organization picked up the Mandela Act’s provision banning solitary for pregnant people and included it in a separate bill focused on improving nutritional standards for pregnant and postpartum women in custody.  

While the Mandela Act stayed stuck this year, this new, narrower bill was adopted by lawmakers in August and signed into law by Newsom in September. But by then, it had grown so unrecognizable to its original community sponsor that they withdrew their endorsement.

The initial bill would have banned solitary confinement for anyone who is pregnant in a California jail, detention facility, or state prison. The version that became law no longer applies to local jails and detention centers, meaning that someone like Mendoza wouldn’t be covered. 

And instead of outright banning solitary confinement, it capped the number of days it can be used. But the result is that the new law expressly allows prison officials to put pregnant women in isolation for up to five days at a time in certain cases. Advocates are alarmed that, for the first time, the legislation has codified in California law that it is permissible to use solitary confinement against pregnant women.

The divergent fate of the two bills is a tidy illustration of what can happen to grassroots efforts to change criminal legal policy in the face of two powerful forces: the California prison system, which enjoys great influence over the state’s elected leaders and tends to resist efforts to impose limits on its authority; and Newsom, whose efforts to style himself as a national leader on prison reform have often involved letting that system guide how and when it wants to change. 

Keramet Reiter, a law professor at UC Irvine who wrote a book on the rise of solitary confinement in California, was frank in her assessment of the new law. “This is an abomination,” she told me. “There are categories of people who unequivocally never, ever should be in solitary confinement, and one of them is pregnant women.”

The debate over solitary confinement in California has been a multi-decade battle between the California Department of Corrections and Rehabilitation (CDCR) on one side, and the prisoners it puts in solitary confinement on the other, alongside survivors of the practice and their family members and supporters. In 2013, a historic prisoner hunger strike organized by four men in solitary confinement at Pelican Bay led to a lawsuit and eventual settlement, Ashker v. Governor of California, that was meant to lead to significant changes, including an end to the practice of indefinite isolation, which left people languishing in solitary for years on end with little recourse.

But in 2022, when Holden introduced the Mandela Act, he told me that the bill was partially a response to CDCR’s failure to abide by the reforms laid out in Ashker. “CDCR, you have been told by the courts to change how this solitary confinement process works and how it’s being utilized—and to no avail. So we write a bill to say, ‘Okay, we’re just asking you to do what the courts ask you to do,’” he said.

In California, 10 percent of all state employees work in corrections, and their union, CCPOA, has a great deal of lobbying power in Sacramento. The association regularly flexes its muscle via political donations, but its spending on Newsom has been especially notable: the union sunk $1 million into TV ads promoting his gubernatorial run in 2018, and they have more recently spent $1.75 million opposing the recall effort and $1 million on Proposition 1, Newsom’s marquee mental health treatment plan. The latter two expenditures alone represent nearly a third of all CCPOA’s political donations since 2001, according to a recent Cal Matters analysis. 

Newsom has championed some aspects of prison reform during his nearly six years as governor, moving to shut down some facilities and placing a moratorium on the state’s use of the death penalty. But he has also overseen raises and perks for prison guards that even California’s office of legislative analysis found unwarranted. And after the same office determined that five more prisons could be shut down, Newsom declined to implement further closures. (The governor’s office did not respond to a request for comment for this story).

Solitary confinement has remained a cornerstone of prison officials’ strategy for managing incarcerated populations, as they insist that they need to be able to continue to separate people from the general population for safety reasons. And Newsom has repeatedly erred on the side of trusting CDCR’s discretion and allowing the agency leeway to shape its own policy on this issue. (The CCPOA officially opposes the Mandela Act.)

Reiter, however, contends that it’s not an all-or-nothing decision. “Certainly people get in situations in prison where they need to be removed from the rest of the population, but there are ways to do that without restricting their access to natural light, to human contact, to time out of their cell,” she told me. To Reiter, Newsom’s willingness to let CDCR guide its reforms casts doubt on his stated commitment to changing the state’s carceral system. “It raises real questions to me when a governor who claims to be so invested in reform defers again and again in these ways,” she said.

In 2022, after the Mandela Act made it to the governor’s desk, Newsom returned it unsigned. In his veto message, the governor called the bill “overly broad.” He granted that solitary confinement in California was “ripe for reform,” but chose to put the prison system in charge of overseeing that reform, directing CDCR to implement changes to its solitary confinement policies. 
The department waited nearly a full year to do so, until the Mandela Act was once again being debated and nearing the final deadline for Newsom to sign or veto bills. Then, it proposed its own policy changes that would reduce the number of offenses that land someone in solitary and raise the number of hours of mandatory out-of-cell time to 20 per week, meaning that someone in solitary confinement could still be held in their cell for more than 21 hours per day.

At the same time, Newsom’s office was seeking to winnow the Mandela Act into a data collection bill that outlawed solitary only for pregnant women. The Mandela coalition refused these changes, considering them an unacceptable compromise that would allow Newsom to tout a seemingly progressive reform while failing to address the structural problems with prison isolation. Instead, they opted to pause on the legislation in order to keep negotiating with the governor the following year. They already had all the votes they needed in the state Assembly to get it back on Newsom’s desk: “We were simply parked right outside the governor’s door,” coalition member Hamid Yazdan Panah, co-executive director at Immigrant Defense Advocates, told me. 

But come 2024, Newsom wouldn’t engage. The coalition tried to negotiate, but they didn’t get far. In late July, a staffer from the governor’s office emailed the coalition to let them know the door was closed, referencing the recent CDCR changes as justification. “Given CDCR’s relatively recent update to their regulations on the use of [solitary] the [Governor’s office] isn’t comfortable making further changes to [solitary] policy this year,” he wrote.

Meanwhile, organizers with the gender justice organization Essie Justice Center, based in LA and Oakland, were trying to advance separate legislation that would improve the treatment of pregnant people in custody. As initially conceived, Assembly Bill 2527 included a blanket ban on solitary confinement for pregnant women in jails, detention facilities, and prisons across the state. 

Assembly Member Rebecca Bauer-Kahan, the bill’s legislative sponsor, had also supported the Mandela Act, but she told Politico that she wanted to ensure these sorts of protections regardless of whether Mandela made it through. But the bill’s focus on pregnant people happened to resemble the narrowed version of the Mandela Act that Newsom’s office pushed in 2023. “Internally within Sacramento or in the capital, I think this bill was pitted against the California Mandela Act,” Essie policy associate Ellie Virrueta Ortiz told me. Virrueta Ortiz believes that legislators and the governor’s office “wanted this to be the smaller, narrower, much more palatable version.”

This summer, as they worked on drafting the bill, Bauer-Kahan’s office called together policy representatives from Essie as well as CDCR. The prison officials were pushing for an exception to the blanket ban: If the move was for their own protection, pregnant women could still be housed in solitary confinement for up to 10 days at a time. 

When I reached out to CDCR asking why they would advocate for this sort of exception, the department’s press secretary responded: “By moving the person from their housing (often a dormitory environment) to a more protective area, CDCR is allowed a window to determine a safe housing alternative. The bill also includes provisions for CDCR works to ensure the pregnant person is allowed to remain enrolled in their programs.”

Essie’s representatives pushed back. The group’s executive director, Gina Clayton-Johnson, told me that their group wasn’t opposed to amending the legislation, but the exception that CDCR was asking for was a bridge too far. 

“No amount of solitary confinement of a person while they’re pregnant is ever fine,” she said.

Soon after, Bauer-Kahan’s staff informed Essie that they had accepted a version of CDCR’s request: The bill was being amended to allow up to two days of restrictive housing at a time for pregnant people. A subsequent draft of the bill raised the time limit from two to five days. Bauer-Kahan’s office didn’t respond to my request for comment.

When Essie’s members saw the new draft that had been submitted to the Senate Appropriations Committee, they learned that it no longer applied to pregnant women held in jail or immigration detention facilities. 

For Essie, this news was a gut punch. “It was something that really, truly was last minute and was unexpected,” Virrueta Ortiz told me. “We know that the real problem is in the jails.” 

Vanessa Ramos, a community organizer with Disability Rights California and a survivor of solitary herself, didn’t mince her words: “The California legislature is viciously and violently co-opting bills from the community, encouraging folks to take obnoxious amendments that not only water down the bill, they create a false narrative that the California legislature is working with CDCR and county jails, to improve conditions—and they’re not,” she told me. 

When organizers with Essie reached out to the coalition supporting the Mandela Act to ask their advice, a member offered language that would enshrine the sort of provisions Reiter outlined: safe isolation that still allowed out of cell time and proper medical care. Bauer-Kahan’s office didn’t accept these amendments.

Finally, Essie made the difficult decision to withdraw their support for the bill. “So many human rights groups had really called us and said, ‘This is not something that we want to see in the state,’ and we really had to listen to that,” Clayton-Johnson said. Over 80 organizations sent a letter to Bauer-Kahan and Newsom expressing their opposition. They urged the governor to veto the bill. A day of action that was originally intended to galvanize supporters of the Mandela Act but became a protest against AB 2527 instead, where Mendoza spoke about her experience in solitary. “It was the most degrading, inhumane thing that I’ve ever gone through,” she told the crowd, her voice shaking. 

But it was too late. The bill breezed through both chambers. “No one paid attention to it, because everyone thought it was the same bill as before,” Yazdan Panah said. On Sept. 27, Newsom signed it into law, leaving the coalition outraged that California had explicitly enshrined into its statutes the use of solitary confinement for pregnant women.

This development “follows a decades-long pattern of nominal reform in this state where the prison system in particular gets just one millimeter ahead of the bare minimum with their policies,” Reiter said. “It feels like reforms that are calculated to avoid actual reforms.”

For now, the fate of the Mandela Act is uncertain, but organizers vow to continue the fight. Ramos credited the veterans of the fight to end solitary confinement in California for refusing to give in to efforts to water down the bill. “The Mandela Act could have very easily been passed, but the receiving end would have been some fucked up bill,” she said. “The Mandela Act has not passed because of the integrity of the people that are leading these efforts.”

“I don’t see the movement slowing down,” Reiter said. She outlined a number of positive changes that have occurred since the days of the 2013 hunger strike: vastly more public attention on the harms of solitary, policy changes that have ended indeterminate confinement. “But are we still overusing solitary confinement? Is the ultimate winner still the Department of Corrections, who’s shown again and again that they’ll set the policies and the terms and that they control the elected politicians?” she said. “So we have a long way to go.”

Holden, the Mandela Act’s sponsor, is termed out of the state legislature this year. I asked him for his reflections on the bill’s future after three unsuccessful legislative sessions and whether he believes that CDCR can reform solitary confinement by itself. 

“If there’s a system that’s working for some, they don’t think that it really needs to be modified to any great extent, then they’re not going to necessarily have the motivation to see that extended change happen,” Holden said. He also noted that CDCR still has never fully complied with the Ashker settlement requiring extensive changes to the state’s use of solitary confinement—and, as of this January, the settlement is now closed. “I think that CDCR is now able to operate in a lane of making the changes that they see appropriate to make, unless directed by the legislature to do something different,” he said. “And that time has not yet come.”

Cynthia Mendoza’s son is 18 now, but the conditions of his birth linger. “It definitely has affected him,” she told me. He has a hard time talking about it, she said, but lately, “we have been working on his feelings and what he went through, having to be born in jail, and then having to visit his mom in prison.”
It remains a tough subject for Mendoza as well, but she told me that she will continue to speak out about her experience despite the difficulty of revisiting the worst moments of her life. “I will never lose hope that my story can help change the narrative for other women,” she said.

The post On Solitary Confinement, California Officials Side With the Prison System—Again appeared first on Bolts.

Alongside the new bans on abortion, laws have popped up to encourage people to snitch on their neighbors and empower prosecutors to file criminal charges. So-called personhood laws are exposing more people to heightened punishment, plus endangering access to other procedures like IVF. The Republican Party has proposed scaling that up further by codifying ‘personhood’ at the federal level.

But pregnancy was policed long before the Dobbs decision came down. Even under Roe, many women faced arrest and prosecution due to allegations over how they handled their pregnancy.

Grace Howard meticulously lays out this history in her new book The Pregnancy Police: Conceiving Crime, Arresting Personhood. An associate professor of justice studies at San José State University, Howard has studied over 1,000 pregnancy-related arrests since 1973, a period that saw the rapid growth of the war on drugs. Her book reconstructs how legal statutes and surveillance tools were used to punish not just abortions, but also stillbirths and miscarriages.

As part of our “Ask Bolts” series, we invited you to ask Howard any question you had about the policing of pregnancy. And once again, you delivered with many thoughtful questions, touching on everything from landmark court cases to new technology. We narrowed your submissions to just nine reader questions to share with Howard, also throwing in a tenth from our own staff.

Howard replies to your questions below, sharing what gravely worries her about the realities of policing and surveillance today, but also finding advocacy to be hopeful about. We’ve organized your questions under four themes—explore at your leisure:

Decades of policing

The realities of criminalization today

Standards of care

What lies ahead?

Read on to learn more about the most consequential legal cases, new tools of surveillance, and a lot more.

Decades of policing

Dobbs galvanized more attention on reproductive rights, but you began your research on the policing of pregnancy long before that decision. What was happening in the decades that your book covers—what has criminalization looked like, besides restrictions on abortion? And what made you start paying such close attention to it? — Bolts staff

In the decades before Dobbs, there was a lot of action in the courts and in state legislatures carving out fetal personhood beyond the scope of abortion. Fertilized eggs, embryos, and fetuses were defined as legal persons in tort law. Pointing to the reality of homicidal violence against pregnant people, pregnancies were defined as crime victims, independent of the people gestating them. 

After Roe, criminalization began in earnest in the 1980s, as the “War on Drugs” drove punitive approaches to social issues, and the anti-abortion movement became a more organized political force. Panic over crack cocaine led to a focus on impoverished Black women who tested positive for the drug while pregnant. 

Most pregnancy criminalization cases involve a positive drug test, but other arrest cases involve self-harm, car accidents, self-managed abortion or miscarriage, failing to protect a fetus from third party violence, and even failure to take good care of themselves. 

Though I had been very passionate about sexual and reproductive health issues, I actually didn’t realize that the criminalization of pregnancy was happening until grad school. We read Dorothy Roberts’ Killing the Black Body and I was forever changed. I was outraged—that it was happening, that so many people either didn’t know or didn’t care. And, there were some great law review articles on it, but not a lot of data. So, I decided I wanted to do something about that. 

What are some landmark legal cases related to the criminalization of pregnancy that concerned citizens should be aware of, and what were their implications? — Chrissy T.

This issue has only come before the Supreme Court once, in Ferguson v. City of Charleston, a 2001 case. This case began as a lawsuit against the Medical University of South Carolina, which had adopted a policy of drug testing certain pregnant patients and reporting positive tests to law enforcement. By the time the case got to SCOTUS, it wasn’t about whether we could punish pregnant folks for crimes against their pregnancies, it was about illegal searches and seizures: Can you drug test a patient for the purposes of law enforcement activity alone, without reasonable suspicion or a warrant? The court said no, you can’t. 

And yet this hasn’t stopped the practice: The case only ever applied to public medical facilities, and healthcare providers can essentially lie about why a drug test is offered. 

Today, drug testing and reporting of pregnant patients and newborns is common and widespread, though most of the time the reports result in family court cases, not criminal ones. 

Another notable case is ex parte Ankrom (2013), which is when the Alabama Supreme Court said that a 2006 law passed by Alabama to punish the chemical endangerment of a child could also be applied to pregnancy. Despite the law saying nothing about pregnancy, the court basically defined fertilized eggs as “children” and uteruses as contaminated “environments.” Though pregnancy-related arrests started years before Ankrom, the decision emboldened prosecutors and opened the door to further legal developments. 

For example, the Alabama Supreme Court case earlier this year that defined embryos created by IVF as extrauterine children, endangering the procedure in the state, cited Ankrom multiple times as precedent.

What does your research show about the way women of color and low income women have been treated on this front during the period you studied, versus white women and higher income women? — Morgan M., from California

The criminalization of pregnancy is inherently racist. Across the U.S., the drugs that women of color are more likely to use have been treated with more scrutiny and have been uniquely stigmatized than those used by white women, despite comparable rates of substance abuse. 

Alabama has been a somewhat different story, in that the racial composition of the arrest pool is much more comparable to state demographics—although this does not mean that it has a racially egalitarian criminal justice system. Alabama’s criminalization period started in 2006, when the big drug panic was related to home-cooked methamphetamine. This focus on meth, and the drug’s association with impoverished white people, led to a wave of them being targeted. 

In my book, I explore rhetorical connections between the panic over so-called “meth babies,” to the early U.S. eugenics movement’s focus on impoverished white people—a white supremacist attempt to shore up the strength of the “white race” by eliminating the whites on the fringes. While information on income was not available in all of my cases, I was able to see if a defendant qualified for a public defender. Perhaps unsurprisingly, the vast majority of the people who were arrested in my study were impoverished enough to qualify for public defense. 

The realities of criminalization today

When I was pregnant in MA in 2021, I was told that because I had a medical marijuana card prior to being pregnant, I could be drug tested at any point in my pregnancy, even though I reported not using it while pregnant. When I read up on the legality of that, I found out that women testing positive for marijuana during delivery accounted for the largest share of referrals to the Department of Children and Family Services. I would love to know more about how marijuana can be legal in a state but criminalized for pregnant people. — Mae, from Massachusetts

Unfortunately, there are a lot of areas of law where pregnancy knocks a person down a peg, legally. You can lose some of your most fundamental rights, including the right to reject medical treatment, the right to privacy, the right to liberty. And people who are reported to Child Protective Services for using drugs during pregnancy usually lose their children at least temporarily—an inherently traumatizing experience. This has included people who use legally prescribed medications, including marijuana.

A case on this question just came out of Oklahoma. The state’s Court of Criminal Appeals ruled that you cannot be prosecuted for using medical marijuana while pregnant; local prosecutors were trying to charge multiple women with criminal neglect. This does not, however, prevent CPS from getting involved—this would be left up to the discretion of the relevant agency.

I’m in Virginia, the last state in the South with access to abortion, and law enforcement here has advocated for a wide expansion of Automated License Plate Reader (ALPR) technology across the commonwealth. Attorneys general across the country have articulated their desire to access this sort of data to track movements of pregnant people to see if they access abortion care across state lines. What are some of the dangers of expansive surveillance networks, like Flock’s ALPR networks, and how does that apply to access to care? — Shawn W., from Virginia

Some of the key differences between today and the last time abortion was criminalized are that our criminal justice apparatus has expanded considerably, as have our surveillance networks.

All forms of electronic surveillance, from ALPR to credit card transactions can potentially be used as evidence in a pregnancy case. Law enforcement can get clearance to examine your text messages, your search history, your credit card statement, and even GPS data to track your location. I worry that this will frighten people away from using the internet to find safe ways of self-managing pregnancies, to arrange travel out of state, or even to find support in understanding what options and resources are available. This leaves people who need abortions isolated.

That being said, we haven’t found a single case where a person was “caught” because of their digital footprint. Everyone who has been arrested, to date, was found because a person told on them: a neighbor, a boyfriend, a nurse. We need to be cautious about who we talk to.

Is performing an abortion the only situation in which these laws apply criminal liability to men? — Alan M., from Washington

So far, yes, the only situation where cisgender men have faced prosecution is for performing abortions. But some states have also been exploring the criminalization of abortion “helpers.” A new Louisiana law goes into effect on October 1 that will classify abortion pills as “controlled dangerous substances.” Any non-pregnant person found to be in possession of these substances without a prescription has committed a crime–even if that person has secured the medication for their own future use in the event of an unplanned pregnancy.

Meanwhile, in family court, there have been a few cases where men have been targeted; not for using drugs themselves, but for failing to prevent their wives from using drugs. This is reminiscent of the law of coverture, a “olde time” legal doctrine from English common law, that basically treated women like legal dependents of whichever man they were attached to—a father or brother or husband. Men were held responsible for “making” their wives behave.

Standards of care

How do these laws affect women with ectopic pregnancies? My friend had an ectopic pregnancy after her daughter was born; the doctors recommended she have tubal ligation to ensure no additional similar pregnancies. — Kirsten, from Maryland

In case readers don’t know, an ectopic pregnancy is a pregnancy where the fertilized egg has implanted somewhere other than the uterus, most often in the fallopian tube. These pregnancies are never viable, and they are extremely dangerous, as the growing embryo can cause tissues to tear and organs to rupture. These must be treated by ending the pregnancy with surgery or with a medication called methotrexate. 

Ectopic pregnancies have been in the news since the Dobbs case, because these medical emergencies bump up against vague laws banning abortions. Healthcare providers are put into a position where they have to wonder: Will offering this life-saving care result in the loss of my medical license, or even my incarceration? For example, in Texas, healthcare providers face 99 years in prison if a prosecutor decides they have violated the abortion ban. In practice this means that emergency medical care can be dangerously delayed while lawyers try to decide whether or not your doctor is allowed to help you. 

This is what happened to Kelsie Norris-De La Cruz, a 25-year old woman in Texas who was ordered to go home and wait after she was diagnosed with an ectopic pregnancy, as there was a chance the pregnancy was still “alive.” She was unable to receive care until her fallopian tube began to rupture. 

(Editor’s note: A new investigation published this week by the Associated Press identified the cases of 100 pregnant women who were denied emergency service in different states.)

How have healthcare providers become part of this apparatus of criminalization? Are there certain things they have to report if they notice them? — Anonymous | Why doesn’t federal HIPPA protect women from states accessing their medical records? — @cyndtrueme, on X   

Healthcare providers are the primary gatekeepers for this whole thing: Of the over 1,000 pregnancy-related arrest cases that I studied, 75 percent originated by a healthcare provider making a report. 

There are two federal laws to consider: HIPAA and CAPTA. HIPAA is basically a record-sharing law that places some limits on when medical information can be shared. In general, without your permission, information can only be shared when a person thinks a patient is a direct threat to themselves or others. Healthcare providers have made reports based on their belief that a fertilized egg, embryo, or fetus is a child facing imminent harm.

CAPTA (the Child Abuse Prevention and Treatment Act) provides federal funding for the “prevention, assessment, investigation, and treatment” of child abuse. Many healthcare providers assume (or are advised) that CAPTA specifically requires that states define substance use during pregnancy as child abuse, and mandate reports to authorities, but this is incorrect. CAPTA does not require prosecution, drug testing, or filing abuse reports of babies exposed to drugs in utero. 

What lies ahead?

The GOP’s official policy platform adopted at the RNC wants more states to establish ‘fetal personhood’ laws. Can you explain what the impact of this would be? — Anonymous

The GOP platform endorses the idea that the U.S. Constitution defines fertilized eggs, embryos, and fetuses as full legal persons. (Editor’s note: Courts have not recognized this conservative interpretation of the Fourteenth Amendment, but there are signs that several justices are open to it.) I can’t overstate how impactful this would be. Anybody with the capacity for pregnancy, or who even looks like they have the capacity for pregnancy, would be suspect at all times, and lose the right to medical privacy. They would be banned from doing anything considered (rightly or wrongly) unsafe for a pregnancy, from a seemingly endless list of foods and beverages that are off limits, to forms of medical care including abortion. They would lose the right to medical privacy, and we would nullify advance directives (legal documents where a person states their decisions about life-sustaining care should they become incapacitated) during pregnancy. They could be fired from jobs deemed unsafe. Pregnant people who are abused by their partners could be charged for failing to protect their “unborn child.” 

You can’t have fetal personhood and full legal recognition of people with the capacity for pregnancy at the same time: You are a womb before you are a person.

The bulk of the legal action establishing fetal personhood comes from states. One horrifying reality is that homicide is a leading cause of death for pregnant women, usually at the hands of their intimate partners. Instead of focusing on the factors that make pregnant people more vulnerable to homicidal violence, 38 states have responded by defining fertilized eggs, embryos, or fetuses as potential crime victims. The legislation is sometimes inspired by specific cases that get a lot of press coverage and cause public outrage—most often involving a white victim. For those of us who care about intimate partner violence, this might seem like a great solution to a terrible problem. I argue, however, that these laws are trojan horses, establishing fetal personhood in the criminal code under the auspices of protection. In turn, these very laws have been used as precedent to establish fetal personhood elsewhere in state law, and have been used to punish pregnant women deemed to have endangered or harmed their own pregnancies. 

Are there grassroots groups that you see are doing a good job fighting against this? — I’m worried, from Ohio

It is easy to feel overwhelmed when I think about the work that needs to be done. Thankfully, none of us have to do this work alone, and there are many groups and organizations fighting back. There are two legal advocacy organizations worth looking into: Pregnancy Justice provides legal defense, guidance, resources, and education for cases involving pregnancy criminalization and CPS reporting. If/When/How also does amazing work on legal defense in abortion cases, and they operate both a legal help hotline and a Repro Legal Defense Fund to help cover bail and legal fees. 

There are also some local and state-specific groups working on this, including Healthy and Free Tennessee, Sister Reach, and Sister Song, which focuses on the South. One of the most powerful things you can do right now is to get involved with your local abortion fund or practical support network. Not only do they help fund abortions and make arrangements for people who need support, but they also support folks who want to continue their pregnancies, give birth, and parent their children. They are the grassroots backbone of the reproductive justice movement.

The post How Pregnancy is Policed: Your Questions Answered appeared first on Bolts.

After giving birth in 2011, Eboney Ellis says she didn’t get any time to bond with her new son. Ellis, who was incarcerated and in the custody of the California prison system, says her baby was taken away so fast that she could barely even lay eyes on him and didn’t learn the baby’s gender. 

Ellis says she was given prenatal vitamins from the time she first got to prison during her pregnancy but never got access to a personal social worker she could consult if she had a question. For incarcerated women who are pregnant, social workers can be the middle person between them and an intentional start for a newborn, as they often help facilitate things like family finding, information sharing, lactation, and more. She still considered herself lucky because her family was there to pick up her baby, unlike some women whose children are quickly taken by child protective services.

“I was never able to see this child,” Ellis said. “From the moment the child was taken out, it was taken away from me.”

Ellis is now part of a coalition of advocates pushing for more humane treatment of pregnant people in California prisons. This year, they have been rallying behind proposed legislation that would mandate that people get to spend at least three days with newborns after giving birth in state prison custody—an increase from the current one to three days before removing the child and returning them to prison. Advocates say that currently, many women get little to no time with newborns after giving birth, and there is no current standard to protect and expand that time.

The proposed legislation, Assembly Bill 2740, would also codify that prison officials connect pregnant people with social workers within a week of entering prison custody or being identified as pregnant. Additionally, the bill requires prison staff to expedite the visitation process so that incarcerated mothers can have overnight visits with their newborns as soon as possible. It would also require an incarcerated mother to be permitted to breastfeed their newborn and pump breast milk to be stored and provided to the child once they’re separated.

Ellis says she is advocating for AB 2740 because it is her personal story. “It was such a horrific thing,” Ellis said. “It meant everything for me to reach back and do whatever I can to make that situation a little bit more softer, a little bit more personal.”

During a legislative hearing in late May, State Assemblymember Marie Waldron, who introduced AB 2740, said that it “recognizes the fundamental rights and health needs of women and their babies in state custody.” 

“It is undeniable that prenatal and postpartum care are very important,” Waldron said during the hearing. “Reimagining outcomes of infants born in California state prisons will strengthen family bonds and reduce recidivism.”

The bill passed with unanimous approval during a May 22 floor vote in the state Assembly but has yet to clear the state Senate, which is in its final stretch of hearings before this year’s legislative session ends on Aug. 31.

As it stands, care provided to pregnant women in California prisons amounts to little more than prenatal vitamins and OB-GYN appointments, as described by the California Department of Corrections and Rehabilitation Operations Manual. De Anna Pittman, a program manager with the Young Women’s Freedom Center, which is part of the coalition pushing the reform bill, says the state needs to bolster care for people who give birth in CDCR custody. She points to research showing that a lack of bonding time and breastfeeding puts newborns at increased risk of poor health and worse developmental outcomes. 

“The state of care for incarcerated pregnant people in California is not what it should be. There’s no dignity in giving birth in prison,” Pittman said. “There’s just a lot of confusion and honestly a lot of heartbreak. The process of giving birth is already a traumatic process, and to have your baby ripped away from you instantly is terrible.” 

Pittman also emphasized the importance of access to social workers and expedited visitation because she says that many women could still get released while their children are young. Research shows that when incarcerated people have strong family ties, recidivism decreases.

“We want to give parents the tools that they need, so when they get out, they’re not coming back in,” Pittman said.

Just two days after Jonala Vann found out she was pregnant in 2011, she was sent to jail for a nonviolent probation violation. She said the care she was able to obtain while incarcerated at a Riverside County Jail in Southern California paled in comparison to the time she was pregnant with her daughter outside of prison two years prior; Vann said she was not given prenatal vitamins and was only given an ultrasound a handful of times.

Right before she went into labor, Vann had gone to a court hearing to see whether her case would go to trial or be dropped. She hoped a judge would let her go home to have her baby, but instead she was sent back to jail.

“I was really hoping just to have my daughter, even if I had to serve out my time, I just wanted to have her free,” Vann said.

After she gave birth, Vann was only given 16 hours with her baby. She said she did not sleep after childbirth because she didn’t want to miss any moments with the baby and knew they would soon be separated. She stayed up singing “You’ll Be in My Heart” from the Disney movie “Tarzan”, a song she sang to her baby all the time when pregnant, hoping her daughter could recognize her voice.

“[Those 16 hours] were really hard because I knew that I was going to have to give her up,” Vann said. “I was trying to enjoy them but at the same time I couldn’t help but feel really sad and upset that I put myself in the situation.”

It would be about seven months before Vann got to see her daughter again. She remembers the first visit as “the best and the hardest at the same time. It was nice holding my daughter and getting time to bond, but it was difficult when it came down to leaving.”

Research on pregnancy and incarceration estimates that some 55,000 pregnant people are admitted to U.S. jails every year and about 1,400 to U.S. prisons. Carolyn Sufrin, an OB-GYN who started the Pregnancy in Prison Statistics Project to advocate for reproductive justice for incarcerated people, says that treatment of pregnant people typically varies from facility to facility and that there are often barriers to the kind of care pregnant people might expect to get on the outside. 

“You can’t control your own access to health care, you’re completely reliant on the facility for that. Sometimes that works out, but many times it doesn’t,” Sufrin said. 

Being incarcerated while pregnant can also pose health risks. When Martha Torres was pregnant in a Los Angeles County jail, the COVID-19 pandemic was sweeping the country. She said the virus was making its way through the facility, and eventually she contracted it and was worried because she didn’t know how it would affect her pregnancy.

Torres went into jail a month and a half into her pregnancy for a probation violation. She said there were times she was not listened to when she voiced her concerns about the virus and was sometimes not allowed to take walks around the yard. 

Torres was eventually able to enter an alternative incarceration during her pregnancy that allowed her to live with her newborn daughter after she gave birth so that she could bond with and breastfeed her. Torres also had another son at home who was less than a year old when she went to jail, and said it was traumatic to be separated from him and difficult to repair their bond when she got home.

“There’s a huge difference, you miss out on all your milestones, and it’s actually very traumatic for the parent and for the child,” Torres said.

This year, California lawmakers filed a series of bills aimed at improving treatment for pregnant people who are incarcerated and protecting the bonds between newborns and incarcerated mothers. One would prohibit state prisons and county jails from putting people in solitary confinement during pregnancy or for 12 weeks postpartum. Another would encourage judges to consider alternatives to incarceration for pregnant and postpartum women so they could bond with their newborns during their first year. None of the bills have yet to pass as the legislature enters its final days of this year’s session, which ends on Aug. 31.

The effort to pass new protections for pregnant people in jails and prisons follows other policy reforms at the intersection of incarceration and pregnancy in recent years. In 2020, California passed AB 732 mandating new treatment guidelines for people incarcerated in any state or county correctional facility, including transport to a hospital during childbirth and prohibitions on tasing or pepper spraying pregnant people in custody. Before that, in 2012, California passed a bill outlawing the shackling of pregnant incarcerated people, including the use of leg irons and waist chains. 

Other reforms to accommodate pregnant women and new mothers in jails and prisons have hit a wall. In 2022, California Governor Gavin Newsom vetoed the California Healthy Start Act, which would have expanded a program where women in prison could live with their children to include incarcerated women regardless of the conviction type or length of their sentence. The same year, the Dignity for Incarcerated Women Act died in the state Assembly’s Appropriations Committee.

“We want to keep that mother and that baby bonded together for life so they actually get to be raised by their mothers, instead of having to believe in the system or by a grandparent,” said Tyrique Shipp, a policy fellow with the Anti-Recidivism Coalition.

Shipp pointed out the lack of oversight standards to ensure consistent physical and emotional care for the complexities of incarcerated pregnant women. Even if legislation passes that sets better baseline standards for treatment of incarcerated people during pregnancy, Shipp says more oversight is needed to ensure consistent physical and emotional care for incarcerated pregnant women, mothers and infants. 

“A prison cell is no place for somebody who is pregnant or somebody after pregnancy — it’s not safe, it’s not clean — and so the focus is just trying to make sure that we can create a safe environment for these women,” Shipp said.

The post “There’s No Dignity in Giving Birth in Prison”: New Bills Would Improve Care Behind Bars appeared first on Bolts.

Ever since the Arizona Supreme Court upheld a near-total abortion ban this month, pro-choice advocates have rushed to reverse it. They’ve pushed the GOP-run legislature to repeal the law, to no avail so far. They’ve defended the Democratic governor’s order blocking enforcement of the ban from legal pushback. And now they’re close to placing a constitutional amendment protecting abortion on the November ballot. 

If these statewide solutions fail, though, they’re at least eying Arizona’s local prosecutors as the backstop to an outcome they dread: the prospect of people facing criminal charges—and prison terms—over abortions.

“The least our county attorneys can do is commit that they would not prosecute those cases,” said State Representative Analise Ortiz, a Democrat whose district covers parts of Maricopa County. “They absolutely should do that to bring relief to the millions of people who are scared by this decision.”

Whether such a backstop materializes in Maricopa County—a giant jurisdiction home to more than four million residents in Phoenix and its surrounding areas—is going to come down to November’s prosecutor race.

Maricopa County Attorney Rachel Mitchell, a Republican who is up for reelection this year, reacted to the ruling with a statement vowing that women would not be “prosecuted for receiving an abortion,” and especially calls out that she would not prosecute abortions that stem from rape, incest, or molestation. The statement did not, however, address whether she would prosecute doctors who provide abortions. Just days prior, Mitchell had said she’d enforce Arizona’s abortion law “whatever that law is.” She has also denounced as unlawful a gubernatorial order barring county attorneys like herself from prosecuting abortion. 

Mitchell’s only Democratic challenger, Tamika Wooten, promises she won’t pursue such prosecutions if she becomes county attorney. 

“I will not prosecute a woman for her personal health care decisions, nor will I prosecute the medical provider who performs that,” Wooten, a former local prosecutor and defense attorney, told Bolts. “That is a very serious and personal decision that a person must have with themselves and with their health care provider, and it’s not my business.”

Mitchell’s office on Monday declined to answer questions from Bolts about whether she would prosecute doctors that provide abortion, only referring Bolts to her April 9 statement that does not mention medical providers. “That statement, in its entirety, is the information being provided at this time,” said a spokesperson for the office. 

Arizona’s revived ban, which dates back to 1864, mandates two to five years in prison for doctors who provide an abortion except when it’s to save a patient’s life.

In 2022, the GOP passed a separate law banning abortions after 15 weeks; that law also makes it a felony for doctors to violate those restrictions. 

Even if Arizona repeals the 1864 law, that would still leave in place this 15-week ban and its share of criminal penalties.

Wooten criticized Mitchell for not ruling out charges against medical professionals. “If you say you’re not going to prosecute the woman but you’re not quite sure if you’re going to prosecute the medical professional, licensed medical professionals are going to be wary of that,” Wooten said. “That’s gonna force a woman to go to a back alley. Now we’re subjecting women to all kinds of unsafe, unsanitary procedures… because our licensed professionals are afraid that they’re going to be prosecuted.” 

Wooten added, “We need to make sure that the people who are licensed and able to perform these can do it confidently without fearing felony prosecution or prison.”

In the GOP primary in August, Mitchell first faces a rematch against Gina Godbehere, a conservative who used to work as a prosecutor in the county attorney’s office; Godbehere did not reply to Bolts but has echoed Mitchell’s position on abortion in the past. 

Arizona’s 14 other counties also elect their chief prosecutor this year, but a statewide analysis by Bolts found that most of these races aren’t even contested, and among those that are, Maricopa County is unique in featuring a stark contrast on the issue of criminalizing abortion. It’s the only Arizona county where there’ll be at least one candidate on the ballot this year pledging to not prosecute abortion, and at least one candidate who hasn’t made that assurance. 

This single race, though, will have outsized resonance, since it’s playing out in the county that by itself is home to most of the state’s abortion clinics and the majority of Arizona’s population.

Mitchell was just a line prosecutor in the Maricopa County prosecutor’s office in 2018, when she was tapped by U.S. Senate Republicans to interrogate Christine Blasey Ford during Brett Kavanaugh’s Supreme Court confirmation hearings. In 2022, the same year Kavanaugh voted to strike down federal protections for abortion in the Dobbs decision, Mitchell was appointed Maricopa county attorney after her predecessor’s surprise resignation.

Mitchell then prevailed in a 2022 special election that closely mirrored the upcoming election. In the immediate aftermath of the Dobbs ruling, she defeated Godbehere in the Republican primary and then beat another pro-choice Democrat by six percentage points.

The state supreme court’s shock decision this month to trigger Arizona’s Civil War-era abortion ban has once again underscored the stakes of who occupies the local county attorney offices with a hand in enforcing it. Still, the exact role these county attorneys will play in either protecting or prosecuting abortion remains unsettled.

Statewide Democratic officials are currently trying to block county attorneys from targeting abortion. Governor Katie Hobbs issued an executive order last year that transferred all abortion cases to Attorney General Kris Mayes, who has pledged to never prosecute them. Combined with Mayes’ promise, Hobbs’ executive order moots the threat of criminal prosecutions for abortion—at least on paper.

But this guardrail is far from ironclad. Hobbs and Myers, who each won very narrow races in 2022, are both up for reelection in 2026. Were they to lose to anti-abortion Republicans in the future, their replacements could revert these cases to county attorneys or bring charges.

More urgently, many county attorneys, including Mitchell, are arguing that Hobbs’ order is invalid and say the governor lacks the legal power to give their cases to the attorney general. 

“It is a substantial overreach to suggest the governor may strip away prosecutorial discretion from local, elected officials,” Mitchell wrote in a letter to Hobbs last year. Jeanine L’Ecuyer, chief of communications for her office, reasserted Mitchell’s position this week, telling Bolts that county attorneys “are not supervised, nor do they report to, the attorney general.” (Wooten, her Democratic challenger, told Bolts she disagrees with Mitchell, and approves of Hobbs’ order.)

If a county attorney challenged or ignored Hobbs’ order, it would trigger a legal showdown—and the state supreme court may be the final arbiter, again. Aadika Singh, a senior attorney at the Public Rights Project, a national organization that was involved in the recent case against Arizona’s abortion ban, told Bolts this uncertainty will deter abortion care providers.

“The promises from the governor and her executive order, the attorney general’s statements, don’t help that doctor feel confident that she won’t be prosecuted by some rogue local prosecutor,” Singh said. 

Such a case could emerge from Yavapai County, home to Prescott and Sedona. Republican County Attorney Daniel McGrane jumped into the recent litigation to ask the state supreme court to revive the 1864 ban and has signaled his interest in prosecuting people for abortion.

When Bolts contacted the Yavapai county attorney’s office with questions about their policies, an employee told Bolts to contact the Alliance Defending Freedom, a religious organization opposed to abortion that represented the office in court during the litigation over the 1864 ban. When Bolts clarified that it had questions about what McGrane would do in light of the court’s decision, and not just about the litigation, his executive assistant replied in an email, “I understand your request, and I have been directed to refer all inquires [sic] to the ADF.” 

The Alliance Defending Freedom did not answer Bolts’ question on how they were advising the Yavapai county attorney’s office, though they did share a generic statement celebrating the court’s ruling.

Asked about the Yavapai office deferring to the Alliance Defending Freedom, Singh told Bolts, “I think it’s very troubling when governments delegate their positions, their jobs, to ideological antichoice groups.” 

Singh’s organization is now fighting to get Arizona courts to delay the implementation of the 1864 ban; the attorney general said last week that the law would not be in effect until June 8 at the earliest. 

In the meantime, Democratic lawmakers made some progress toward repealing the ban altogether in the Senate last week despite Republicans’ narrow majority, but the odds of repeal are even lower in the House. Speaker Ben Toma, a Republican who controls what the chamber votes on and opposes repeal, said on the floor last week, “I would ask everyone in this chamber to respect the fact that some of us believe abortion is the murder of children.” 

Organizers are also championing a constitutional amendment that may end up on the ballot in November; in securing broader abortion rights in Arizona, the measure would overturn both the 1864 and 2022 bans.

“That is the most durable protection we can have here in our state,” said Chris Love, a spokesperson for Arizona for Abortion Access, the organization that’s pushing for an initiative to be voted on in November. The organization has already collected well above the required number of citizen signatures to qualify the measure, and they’re continuing to gather signatures to be safe. 

Obstacles remain, however. Proponents of the measure worry, for instance, that state courts may step in and strike down the initiative even if it passes, as happened a few years back with a state ballot measure to raise taxes to boost education funding. 

The composition of the state supreme court is not set in stone, though. Two of the justices who ruled to uphold the abortion ban this month, Clint Bolick and Kathryn King, are up for retention elections this fall; these races will decide whether they still sit on the bench next year to hear any challenge to the constitutional amendment if it passes. 

A progressive organization on Monday launched a campaign to urge Arizonans to vote “no” on retaining Bolick and King, the Arizona Republic reported, saying it would raise money toward that goal.

Arizona voters have never ousted a supreme court justice before, and several progressive Arizonans told Bolts last week that they were still unsure of how much attention these races would get. Ortiz, the Democratic lawmaker from Maricopa County, says these judicial races could double as a referendum on abortion rights. “If voters take that power to reject these judges, they’re going to send a really strong message,” Ortiz said. “I do think that it would be a worthwhile effort.” 

If the November measure protecting the right to abortion fails or is struck down, or if a court overturns Hobbs’ order preventing prosecutions, the state’s 15 county attorneys would inherit the authority to go after abortion providers within their jurisdiction. Twelve of the 15 current officeholders joined the letter opposing the governor’s executive order last year, though many have also dodged questions about whether they’d enforce the 1864 ban since the supreme court revived it. 

And while all county offices will be on the ballot this year, in most places, voters will have little choice on offer: Just four counties besides Maricopa even drew multiple candidates for prosecutor—Coconino (Flagstaff), Pima (Tucson), Pinal, and Yavapai counties, all of which will be resolved in the August primaries. 

In Coconino and Pima counties, all four candidates are Democrats—deputy prosecutor Ammon Barker and public defender Gary Pearlmutter in Coconino, incumbent Laura Conover and former deputy prosecutor Mike Jette in Pima—and all four told Bolts they would not prosecute abortion cases against either patients or doctors.

“The threat of prosecution will have a chilling effect on the medical administration of this state unless prosecutors in this state can give women and their medical providers clear assurance that this law will not affect them,” said Barker. Pearlmutter added that he also wants to shield “organizations who perform or assist a woman in receiving an abortion,” as well as “a family member or friend who assists a woman in transporting or obtaining an abortion.”

It’s the mirror image in the other two contested races, Pinal and Yavapai counties. Those only drew GOP candidates. 

Pinal County Attorney Kent Volkmer and his primary challenger Brad Miller did not respond to Bolts’ questions. Volkmer’s office also dodged questions by the Arizona Republic. Miller is a staunch conservative who describes himself as pro-life on his website.

David Stringer, a Republican running in Yavapai County against McGrane, said he was “disappointed” in the court’s decision to uphold the 1864 abortion ban, sharply breaking from McGrane, who championed the ruling. Stringer, a former state lawmaker who resigned in 2019 over scrutiny into racist remarks, told Bolts that people should have access to an abortion “in the very early stage of pregnancy.” But he did not rule out prosecutions for abortion. “I would want to see how my colleagues in other county’s handle this very sensitive issue,” he said via email. 

Stringer suggested that it may breach a prosecutor’s duty to refuse to enforce a law that’s in the books, telling Bolts, “A County Attorney is sworn to uphold the law—even laws they may not like.”

Ortiz, the Democratic lawmaker, insists that it does fall within county attorneys’ purview to refuse to prosecute abortion. She points out adultery is a crime under Arizona law and yet prosecutors aren’t going around hounding cheating spouses with criminal charges. 

“Prosecutors have the full discretion to determine which cases they’re going to file charges on and which cases are going to be dismissed, and they make those decisions every single day,” Ortiz said. “It is fully within their authority to say, ‘I am not going to prosecute cases that involve abortion under this unjust law.’”

Still, abortion rights advocates also warn that this emerging patchwork of policies—with some counties open to prosecuting abortion while others are not—is insufficient to protect abortion access even in places with favorable prosecutors. What happens in one county is bound to bleed into the rest of the state, they say, which is why their priorities are amending the constitution and defending Hobbs’ statewide prohibition on enforcement.

“If a few county attorneys decide to aggressively prosecute, it could result in doctors and other providers in other counties deciding not to provide abortion services, due to the lack of statewide consistency in how reproductive health services should be provided,” said Pearlmutter, the Coconino candidate, to explain why he supports the governor’s effort to block a “fractured approach” to enforcement.

In some states led by Republican executives, the drive for statewide consistency has gone the other way. GOP officials have cracked down on prosecutors who refuse to enforce abortion bans, exposing them to heavy retaliation. In 2022, Florida Governor Ron DeSantis went so far as to remove Tampa’s elected prosecutor from his job, ostensibly over such a pledge. 

Some prosecutors working under a broader ethos of criminal justice reform have also announced they won’t file criminal charges against a larger array of behaviors than just abortion—an approach known as declination. They have said these offenses are a matter for public health professionals, rather than for courts. For instance Julie Gunnigle, Democrats’ unsuccessful nominee in Maricopa County in 2020 and 2022, had pledged to not prosecute low-level drug possession and sex work.

Maricopa Democrats’ candidate this year, Wooten, did not name any type of charge besides abortion that she would decline to prosecute during an interview with Bolts, though she said she wanted to increase alternatives to incarceration for people with addiction or mental health issues in order to “address the underlying issue, as opposed to just throwing everybody in prison.” 

But Wooten drew a line in the sand against enforcing a law that is about “taking constitutional rights away from women.” She invoked Rosa Parks and the civil rights movement’s legacy of civil disobedience.

“Sometimes you may have to bend the rules in order to make a greater good for America,” she said.

The post Arizona Will Elect County Prosecutors in Shadow of Abortion Ban appeared first on Bolts.

After the Supreme Court removed federal protections for abortion in its Dobbs decision last June, the state’s attorney general immediately petitioned a federal judge to enforce a 2019 law that banned abortion after six weeks. It included an exception for when the mother’s life is at stake but not for instances of rape or incest. The six-week ban remained in effect for nearly three months, until a lawsuit brought by abortion providers led to an indefinite stay of the law. During that 82-day window, the costs associated with abortion care skyrocketed, and people were forced to cross state lines to seek the procedure—including, notoriously, a ten-year-old whose heartbreaking story became embroiled in a national controversy. 

The Abortion Fund of Ohio jumped into action, helping hundreds of Ohioans seek care elsewhere, in states where they could access abortion. The fund helped reroute them “out of state to be able to get the care that they were entitled to,” recalls Maggie Scotece, a doula and attorney who is currently serving as the organization’s interim executive director. (The organization is part of the coalition supporting Issue 1.)

But the organization, which helps people fund and access abortions, also received confused calls from, or on behalf of, people who could not travel: minors in group homes or juvenile justice centers, and people on probation and parole. 

Hundreds of thousands of Ohioans have their freedom of movement greatly restricted because they’re under some form of state supervision, and the stakes of Issue 1 may be highest for them. 

 According to data collected by the Prison Policy Initiative, Ohio ranks fourth nationally in the share of its population under any form of carceral control (this includes prisons, jails, probation, and parole), behind Idaho, Arkansas, and Georgia—“and that’s largely due to the massive number of people who are on probation,” said Wanda Bertram, a communications strategist at PPI.

A 2023 PPI report found that, at any time, some 191,000 state residents are on probation, which is an alternative to incarceration that comes with heavy restrictions and surveillance, while around 22,000 more are on parole, a form of post-release supervision that in Ohio is baked into prison sentences. “Probation is handed out like candy here in Hamilton County,” said Sean Vicente, a Hamilton County (Cincinnati) public defender. 

Abortion is currently legal up to 21 weeks and 6 days in Ohio because of the legal dispute over the 2019 law. Meanwhile the campaign to pass Issue 1 and permanently codify abortion rights has raised millions of dollars and gained traction; recent polls have found that between 52 percent and 58 percent of prospective voters supported the measure. 

But Issue 1 has also garnered many opponents, especially among the state’s Republican leadership. If it fails, Scotece predicted that the state supreme court, which has a GOP majority, will “almost certainly” reinstate the six-week ban. 

If that happens, people on probation or parole would face an impossible choice, Vicente said: “Do I travel out of state to take care of that health care issue and possibly get locked up? Or do I have an unplanned pregnancy? Do I have an ectopic pregnancy? Do I have a child via rape?” 

“It’s going to put poor people in a really tough spot where they have to truly decide between health care and liberty,” he told Bolts. 

Parole and probation are often conceived of as alternatives to incarceration that can keep more people in their communities. But both systems are so full of delays, requirements, and catch-22s that Vicente says he and his fellow public defenders often fear they are “setting up our clients to fail.” 

“The restrictions that are placed on people—and the ban on traveling out of state, which is common, is one of these—are often so onerous that people say that they would just rather be in prison,” Bertram said. 

At any given time, 39 percent of the people in Ohio’s jails are being detained because they violated the terms of their probation or parole, according to the PPI report. That’s double the national average of 20 percent. 

“I can understand it being that high, because anything can get you [violated],” said Malika Kidd, who helps women navigate reentry as the Program Director for the Lutheran Metropolitan Ministry in Akron and Cleveland. “You can be around another person that was in prison and you can get violated, just in the same area with them. Somebody in your family can have a gun with them and you’re around it, you could be violated. If you get a traffic ticket and don’t let them know, you can be violated.”

Though women are generally proportionally underrepresented within the criminal legal system, they are far more likely to be on probation than under other forms of correctional control, and both parole and probation compliance present special challenges for women. “Women are more likely to be the primary caregivers of children—all of the requirements that supervision imposes that get in the way of childcare are going to fall harder on women,” Bertram said. “That takes a huge amount of time out of your day.” There are fewer reentry programs serving women, who are more likely to be homeless upon their release—another factor that would make it difficult to comply with the often onerous requirements that accompany supervision. “It’s a combination of a lot of stuff that can overwhelm anybody,” said Kidd. 

Kidd is, in many ways, the face of women’s reentry in Ohio, but her experience with parole there illustrates how arbitrary and burdensome the system can be—and how it restricts people’s freedom of movement. In 2001, after police found cocaine in her car on a trip from Chicago to Cleveland, she was sent to prison for drug trafficking. Her son was just three years old; by the time she got out, he was 17. 

As part of her mandatory minimum sentence, Kidd was given a 5-year “post-control release” term. From the beginning, she says, her parole officer seemed biased against her and determined to make her life harder. The woman upped her risk level, calling her a flight risk because she is originally from Illinois, and forced her to wear an ankle bracelet, which tracked her movements and prohibited her from leaving Ohio. Some people on probation cannot even leave their county of residence without permission. 

Moreover, Kidd says her parole officer exacerbated the already toilsome process with delays in processing her requests for permission to travel outside the state. Ironically, some of Kidd’s requests were in order to speak at conferences about the myriad barriers associated with reentry. Her work was understanding about her spending hours at the parole office waiting for approval, she said, but “I’m sure there were plenty of other employers that weren’t as flexible as mine,” which could leave people to choose between potentially losing their job—a violation of parole conditions in itself—or giving up on the travel request. 

If abortion were once again banned in Ohio, people on parole or probation might be forced to choose between lying to the officer or judge assigned to their case about their reasons for travel, going out of state without permission, or being honest. The former two options both carry the risk of violating your supervision terms and being reincarcerated. 

Vicente said he couldn’t fathom any judges signing off on a travel request that involved going out of state to do something that would violate the law if done within state borders. 

He said, “You’re petitioning the court to say, ‘Hey, I know this is against the law here in Ohio, but I need my client to travel up to Michigan to get the care she needs. Judge, are you willing to allow her to travel out of state to break the law that’s currently in effect in Ohio?’ That I doubt any judges would sign off on.” 

“I think there’s gonna be a lot of frenzied and panicked calls, and it’s gonna put us in a tight spot as well,” Vicente added, wondering how his fellow public defenders would begin to advise their clients under such circumstances. 

An unexpected and unwanted pregnancy—and the stress, exhaustion, physical and hormonal changes, and increased number of health check-ups that tend to follow in its wake—could also make it harder to comply with the terms of supervision. “The medical needs are going to take priority over visiting the probation officer, which puts you in further jeopardy,” Vicente said. More people being forced to carry to term a pregnancy that they don’t want and can’t handle could ultimately contribute to the already high percentage of Ohioans jailed for violating the terms of their supervision.

With polling showing public support for abortion and other reproductive health rights, Ohio Governor Mike DeWine recently proposed to soften Ohio’s six-week ban if it were to come back into effect and to allow some exceptions, for example in the case of rape. But other Republican lawmakers have already resisted such changes. 

Republicans also tried to change the rules of the initiative process in Ohio to undermine this abortion rights measure, which was petitioned onto the ballot by organizers who collected hundreds of thousands of signatures. GOP lawmakers called a special election in August asking voters to raise the threshold to pass a constitutional amendment from a simple majority to 60 percent. That proposal failed by a wide margin in August.

The GOP’s proposal to change the rules in August was also called Issue 1, which has led to concerns of voter confusion as abortion rights proponents who fought the summer’s Issue 1 are now campaigning for people to approve the new Issue 1. 

If Issue 1 fails, it would add to the existing barriers that preventOhioans from accessing reproductive care. 

Even though abortion is currently legal up to nearly 22 weeks on paper, access is extremely limited in practice, Scotece of the Abortion Fund of Ohio said. While Ohio had more than 40 clinics in the ‘90s, anti-abortion groups have been “incredibly successful” in seeking to close them down, she told Bolts. The state now has just nine clinics concentrated in Ohio’s big cities, only three of which perform abortions up until the legal limit. 

Meanwhile, Scotece stressed that Ohio is already one of the leading states for the criminalization of pregnancy, whether it be arrests and prosecutions for self-managed abortions or the use of narcotics while pregnant. A 2021 study done by researchers at the University of California San Francisco that surveyed people who searched for abortion care via Google showed that intensifying abortion restrictions in the U.S. have led to an increase in self-managed abortions, including by attempting to hurt oneself or ingest drugs and alcohol—which would likely further expose people to criminalization. 

“We already know that folks who are low income, folks that are already under state scrutiny, whether it’s for parole or the family policing system, are more likely to be criminalized for pregnancy and pregnancy outcomes regardless of whether or not that is related to abortion,” Scotece said. 

Codifying the right to abortion and other reproductive care, and creating legal protections for people and organizations that assist others in accessing abortions, won’t solve all of these problems, Scotece added. But it will create a new test that Ohio courts must use when considering the constitutionality of a law that restricts or criminalizes abortion in the state. 

Kidd is not actively campaigning for Issue 1, but told Bolts she supports it. “It’s a woman’s right and I think these good old boys should not decide what a woman should do with her body.”

Correction (Nov. 1): An earlier version of this article misstated a quote from the Abortion Fund of Ohio, and inaccurately stated the number of Ohioans who sought out-of-state care when the six-week ban was enacted.

The post If Abortion Measure Fails, Ohioans on Parole And Probation Could Face Graver Restrictions appeared first on Bolts.

Editor’s note: Governor Gavin Newsom signed Assembly Bill 2223 into law on Sept. 27.

On the night of December 30, 2017, a teary 29-year-old Adora Perez gave birth to a stillborn boy at Adventist Medical Center in Hanford, California. After Perez tested positive for methamphetamine, she admitted that she had relapsed while pregnant. A nurse wrote that Perez and her boyfriend were extremely upset, calling her “emotional” and “tearful” while saying that he “appeared to have been crying and was solemn.” 

Shortly after Perez gave birth, her son was taken away and tested for illegal drugs. While she slept, a nurse called child protective services, according to documents her lawyers later shared with CalMatters. Police arrived at the hospital to question her the very next day. A doctor told police that the stillbirth was caused by complications related to “extensive drug use by the mother.”

On the morning of January 1, 2018, Perez was released from the hospital and then immediately arrested and taken to jail. Kings County District Attorney Keith Fagundes, who is running for his third term in office this week, charged her with murder, which he argued was justified under California law. 

A few months later, Perez pleaded guilty to manslaughter in exchange for an 11-year prison sentence. According to Perez, her defense attorney, a private lawyer appointed by a judge and not a public defender, did not investigate her case.

Perez might have served that whole decade-plus sentence had Fagundes not charged 26-year-old Chelsea Becker with murder less than two years later under similar circumstances, which drew increased attention to his prosecution of pregnant women. California TV stations posted Becker’s photo and news that police were searching for a “troubled” young woman wanted for the “murder of her unborn baby.” A Kings County judge dismissed Becker’s charges last year, after she had already spent 16 months in jail, but stopped short of ruling that her charge was not permitted under state law, as her attorneys had argued. 

Community activism and legal advocacy, including from California Attorney General Rob Bonta, eventually convinced a judge to reopen Perez’s case and vacate her conviction earlier this year, ruling in an opinion, “There is no crime in California of manslaughter of a fetus.” 

Bonta has also issued a “legal alert” to all California prosecutors, police chiefs and sheriffs saying that state law should not be contorted to “punish people who suffer the loss of their pregnancy” and called the prosecutions of Perez and Becker “improper and unjust,” stating in a press conference: “In California, we do not criminalize pregnancy loss, we do not criminalize miscarriages, we do not criminalize stillbirths.” 

Fagundes eventually dropped the charge against Perez but claimed he would refile it. He is believed to be the only prosecutor in the state who has charged people over pregnancy loss in the last 30 years. Fagundes, who would not agree to an interview, has even said he tried to prosecute whoever gave Becker and Perez drugs, but they would not cooperate. 

California lawmakers are now trying to pass legislation reducing the chances of law enforcement involvement in someone’s pregnancy loss. Assembly Bill 2223, introduced this session by Assembly Member Buffy Wicks, a Democrat from Oakland, is a legislative attempt to codify Bonta’s guidance by preventing coroners, who often double as law enforcement officials in the state, from investigating pregnant people for stillbirths or miscarriages. It also includes a provision that would allow people criminalized for pregnancy outcomes to sue law enforcement civilly. Anti-abortion groups in California who oppose the bill have staged a public campaign falsely claiming it “decriminalizes infanticide.” 

Fagundes has insisted that AB 2223 would “invite murder constantly,” disparaged Bonta’s memo to state law enforcement, and defended his prosecution of pregnant women, turning pregnancy-related criminal matters into grist for his re-election campaign. “The fact that other DAs across the state are too weak to stand up to Rob Bonta and the liberal machine who want to kill our babies is not my problem. I’m gonna do what’s right and do what’s right here,” he said in a May debate, in which he set himself up as a bulkwalk against progressive Democrats like Bonta. “If you are going to be a puppet and a weak milquetoast person … if you want Rob Bonta to be your district attorney, then vote for the opponent. Rob Bonta is a liberal who doesn’t believe in our values.” 

Fagundes faces off this week against Sarah Hacker, a one-time prosecutor and defense lawyer. Hacker is a self-described conservative, which makes sense for a candidate running in one of California’s most staunchly Republican counties. She told Bolts that she doesn’t support AB 2223 because it would curtail law enforcement discretion.

But Hacker is also making the case that Fagundes has twisted the law to fit his personal beliefs and ignited a totally unnecessary legislative and political maelstrom in the state. In a recent debate, Hacker said Fagundes “has illegally prosecuted women for stillborn deaths, knowing his actions are against the law.” 

Hacker, who even attended a local rally to protest Perez’s conviction, told Bolts that she doesn’t want to prosecute people for pregnancy outcomes. She also worries that Fagundes’ actions will keep victims of abuse or assault from seeking help from prosecutors. “When there is a sexual assault victim, I want them to feel comfortable coming forward,” she said.

The Kings County prosecutions for pregnancy loss speak to the ways that pregnancy is already policed, even in a blue state like California. An array of local officials, from DAs to sheriffs and coroners, have long enjoyed the power to target pregnancy outcomes with criminal charges.

Last year the organization National Advocates for Pregnant Women compiled at least 1,700 cases across the country since 1973 where women have been criminally punished for reasons related to pregnancy. Samantha Lee, a staff attorney for the group, says the criminal legal system treats pregnant people fundamentally different from others. 

“Society reduces pregnant people to vessels without their own rights and lives, so criminalizing them for behavior people incorrectly think is harmful to a fetus is an unfortunate progression that creates inequities and leads to the misapplication of laws,” Lee said. “These women would not have been charged if they had not been pregnant.”

In 1999, South Carolina police arrested and charged a woman with homicide by child abuse after she had a still birth. In 2008, a New York state prosecutor charged a woman with manslaughter for her failure to wear a seatbelt while pregnant. In 2015, Georgia prosecutors charged a young mother with murder for taking misoprostol, commonly used for self-managed abortions. In 2020, an Oklahoma prosecutor charged a woman with manslaughter when she had a miscarriage at around 15 weeks, well before the third trimester. In April, a young woman near the Texas-Mexico border was charged with murder because she sought medical care after an alleged self-managed abortion. Others have been criminally charged for falling down stairs, contracting HIV, or delaying a cesarean section.

Like in Kings County, many charges against pregnant people are linked to the failed “war on drugs,” attempts to punish substance use during pregnancy despite a distinct lack of evidence that they cause fetal harm and contrary to the recommendations of medical professionals, who fear pregnant people will resist prenatal care if they think it will draw police attention. 

Some states have taken this approach even further. Tennessee, for example, enacted a “fetal assault” law under which prosecutors charged at least 100 pregnant women for using illegal drugs. (The law has since expired.) Alabama has prosecuted at least 500 women between 2006 and 2015 under its “chemical endangerment law,” which includes criminalizing exposing a fetus at any age to any amount of a controlled substance, even legal ones like Valium. 

In many cases, prosecutors admitted the goal was to coerce pregnant people into rehab. As with most prosecutions, most of the defendants have come from marginalized groups at greater risk of both poor pregnancy outcomes and criminalization: poor people, people of color, LGBTQ people, and immigrants. 

“Unfortunately, the reality we see across the country is that health care providers, coroners, police, and sheriffs believe the misinformation that controlled substances cause pregnancy losses,” said Lee, a staff attorney with the National Advocates for Pregnant Women. “In addition to being inaccurate, this type of policing very clearly deters pregnant people from getting the health care they need—and from bringing their children in for health care—because they are afraid of being policed.”

The “fetal murder” law Fagundes used to justify Perez’s manslaughter charge dates to 1970, after the California Supreme Court held that the homicide statute in place at the time did not apply to a fetus. In response, lawmakers revised the statute to criminalize intentional injuries to a fetus as a form of homicide. The same law was used in 2003 to charge Scott Peterson for both the death of his wife Laci and that of her unborn son. The law was not intended to criminalize the outcomes of one’s own pregnancy, and prior attempts by prosecutors to do so have been dismissed by trial courts.

In addition to legislative attempts to limit policing of pregnancy, prosecutors across California have pledged not to prosecute women for pregnancy outcomes, as have DAs across the country, in states red and blue. California Governor Gavin Newsom has also reiterated his support for abortion rights and promised new legislation protecting abortion access. 

Still, if the Supreme Court overturns Roe v. Wade, as a leaked draft opinion has suggested it will, efforts to criminalize pregnancy outcomes will almost certainly intensify around the country, says Farah Diaz-Tello, senior counsel and legal director at If/ When/ How, which is pushing for AB 2223’s passage in California. If Roe falls, 26 states are prepared to outlaw abortion entirely. Some states are considering additional criminal laws that would impose penalties on women for abortions, for seeking care after an attempted abortion or miscarriage, or for stillbirths. 

Advocates for pregnant people fear that this will lead to an increase in criminal charges filed against people across the country for all sorts of pregnancy outcomes, including stillbirths, miscarriages, and treatment for dangerous or unviable pregnancies.

“We’re likely to see an escalation of criminalization and arrests of people who have ended their pregnancies, and to create additional stigma that makes it more likely that people will be entangled in criminalization, irrespective of what the law says,” Diaz-Tello said. “Situations like what’s happening in California, I think, are more likely to proliferate.”

To a large extent, the debate over AB 2223 is centered in Kings County, located in the heart of California’s Central Valley with a population of 150,000, including three state prisons. The conservative county voted to recall Governor Newsom last year, 64 to 36 percent, while the state at large overwhelmingly opted to keep him. The San Francisco Chronicle recently dubbed the area “the anti-San Francisco.” 

Fagundes, whose actions inspired the legislation, has deep roots in the county (his father sits on the Kings County Board of Supervisors) and switched parties to Republican when he first ran for office in 2014. In a recent debate, he accused both women he prosecuted for stillbirths of “murder,” drawing vigorous cheers and applause from the crowd. 

Hacker, Fagundes’s challenger, also points to scandals on his watch, including a sexual harassment lawsuit filed by a chief investigator in his office alleging that the DA sent him his sexually inappropriate videos, texts, and photos; the lawsuit also accused Fagundes of keeping “blackmail folders” and abused his power by interfering with cases to be unfairly tough or lenient on people he knew. (Fagundes has denied the allegations and filed a lawsuit of his own against the county in a spat over his legal representation in the case.)

Fagundes isn’t alone in objecting to AB 2223 and spreading misinformation about it. During an April legislative hearing in Sacramento, groups of anti-abortion activists testified noisily in objection to the bill. Many were from groups like the People’s Convoy and Freedom Angels, which have tapped into an anti-government conservatism that is growing in parts of California, opposing COVID-related lockdowns and supporting the effort recall Newsom. 

A number of people objecting to AB 2223 came from Calvary Chapel Church, an Evangelical congregation led by Pastor Jack Hibbs, who also sells a booklet called “Countdown: All Eyes on God’s Ultimate Endgame.” Hibbs has been outspoken in his opposition to the bill and held an impromptu religious service on the capitol steps during the recent hearing.

Hibbs also recently brought Riverside County Sheriff Chad Bianco onto one of his weekly talk shows to discuss the bill, introducing the sheriff by calling him an example of “law and order and a passion for life.” Bianco, a former dues-paying member of the Oath Keepers, an anti-government militia group involved in January 6 attack in Washington, D.C., called AB 2223 “anti-public safety,” suggested it would prevent him from doing his job, and linked the bill to other criminal justice reform measures that he has opposed in the past: “[I]t doesn’t matter how many people you kill; there is no consequences for it.”

Bianco is also up for re-election this week and faces Michael Lujan, a retired sheriff’s captain, in the June 7 election. Hibbs is among the right-wing anti-abortion, anti-lockdown leaders—including Pastor Tim Thompson, who hosted Marjorie Taylor Greene at his church—supporting Bianco in the race. Both Fagundes and Bianco have benefitted from the rise of far-right politics in California that supported the recall campaign against Newsom and launched massive protests against COVID-related business closures and restrictions.

As sheriff, Bianco also serves as the county’s coroner, which is the case for most counties across California. Under AB 2223, coroners would be explicitly barred from investigating mothers for stillborn deaths. Other legislation under consideration this year, AB 1608, would separate the office of coroner from sheriff entirely to assure that deaths in police custody get an independent inquiry. 

Both Bianco and Fagundes follow the lead of a certain subset of Christian leaders in California who, like other political figures relying on a sense of religious fervor, argue against AB2223 as a tenet of faith and a way for the right to push back against the left in the state. The bill is still in motion for now. 

But still, when Fagundes told the debate audience that he would follow his faith over the law and accused the pregnant women he prosecuted of “murder,” applause thundered through the room.

Diaz-Tello says that the debate emerging over AB 2223, and the criminal prosecutions of pregnant women that triggered the legislation in the first place, illustrate how policing and criminalizing pregnancy is nationwide issue, not one reserved for red states: “I would not want people to be lulled into a false sense of security that, just because it isn’t The Handmaid’s Tale on day one, that that’s not the ultimate direction.”

The post California Prosecutions for Pregnancy Loss Spark Outrage, and a Bill to Stop Future Investigations appeared first on Bolts.

State Representatives John Jacob and Curt Nisly were among a large slate of far-right candidates running on Tuesday in Indiana, as part of a confrontation between the already-conservative GOP establishment and advocates who were angry at COVID-19 regulations and what they saw as an insufficiently aggressive approach to transforming the state into a conservative haven.

Nearly all non-incumbent candidates who ran as part of this far-right takeover effort lost as well, alongside Jacob and Nisly.

But the results do not shake hardline conservatives’ hold on the mainstream of GOP politics. The Indiana legislature, which is run by the Republican leaders who clashed with Jacob and Nisly, appears likely to adopt new anti-abortion bills in months ahead. Pro-choice activists rallied on behalf of reproductive rights in front of the federal building and courthouse in Indianapolis yesterday.

A similar dynamic played out in Ohio. Former Republican lawmaker John Adams, who ran for secretary of state by touting the Big Lie, the false claim that the 2020 presidential election was stolen from former President Donald Trump, lost by a large margin on Tuesday to incumbent Secretary of State Frank LaRose, who pushed back against Trump in the immediate aftermath of the 2020 election. This was the first secretary of state election this year featuring a Big Lie candidate, though Adams never caught fire like some of his counterparts in other states.

But LaRose’s victory hardly reflects a last stand by moderate forces. He has himself ramped up talk of voter fraud over the past year, and his tenure has included numerous clashes with voting rights groups over restrictions to ballot access. 

Indiana and Ohio’s GOP primaries on Tuesday show that the party’s establishment can still secure wins over an emboldened far-right. But it also signals just how aggressively the party’s mainstream is taking aim at civil rights. The night was headlined, after all, by the U.S. Senate victory of the Trump-endorsed J.D. Vance over far-right candidate Josh Mandel. 

Jacob and Nisly’s ousters in Indiana are still significant setbacks for the state’s far right, which lost two of its most visible figures. 

Jacob and Nisly joined forces in January 2021 as the main sponsors of House Bill 1539, which sought to ban abortion in Indiana; Jacob was already known for protesting abortion rights at the statehouse wearing red-stained medical scrubs and a partially dismembered child’s doll prior to his election in 2020. Both lawmakers lost one day after Politico reported that a majority of the U.S. Supreme Court had voted to overturn Roe vs. Wade.

Also in January 2021, in the aftermath of Trump’s false claims about the 2020 election, Jacob and Nisly also introduced a bill to extensively review voting machines and introduce new restrictions on how elections are run. 

Jacob also has a history of staunchly discriminatory comments, including public remarks disparaging Catholics and Muslims.

While neither of Jacob and Nisly’s bills has advanced, new laws that curtail reproductive rights in Indiana could pass later this year. 

The legislature’s GOP leaders have said that, if the court rules against Roe, they would likely meet in a special session to advance anti-abortion laws. Republican Governor Eric Holcomb has not said whether he will call a special session, and observers say the 2022 elections could shape what final legislation looks like. But Holcomb has signed many laws that restrict abortion during his tenure, including in 2018, 2021, and 2022.

Indiana lawmakers have also passed staunchly conservative legislation recently, including a bill targeting young transgender athletes; Holcomb vetoed that bill in March, but the legislature could override his veto. 

Still, conservative activists in Indiana have claimed that the state is too hostile to their views. And they have called for passing the kind of abortion ban that Jacob and Nisly authored. (Twenty-two states have “trigger laws” on the books that would immediately ban abortion if the Supreme Court overturns Roe vs. Wade, but Indiana is not among them.) 

“Defy Roe. Abolish Abortion,” Jacob wrote in December in a Facebook post that also shared the address of a Planned Parenthood clinic. Jacob also attacked the governor for not closing abortion clinics during the pandemic.

The founder of Hoosiers for Life, an anti-abortion group in Indiana, created the Liberty Defense PAC, with the goal of moving the Indiana legislature even further to the right. Besides demanding a quick ban on abortion, Holcomb’s COVID-19 regulations were among the group’s chief targets. The PAC endorsed 23 state House candidates it dubbed “liberty defenders;” many of whom ran against incumbent lawmakers. 

This far-right slate had a very bad night on Tuesday. Twenty of its endorsed candidates lost; only two won. (The final district remains too close to call as of publication, though the “liberty” candidate leads narrowly.) Jacob and Nisly were the only incumbents on the “liberty” slate; Nisly faced a fellow lawmaker after their districts were combined due to redistricting.

Traditional conservatives also held the line further up the ballot in a key congressional election: Erin Houchin, a former lawmaker, won the Republican primary for Indiana’s deeply red Ninth Congressional District. Houchin ran as a staunch conservative, but the far-right Freedom Caucus rallied behind the candidacy of former congressmember Mike Sodrel.

In Ohio, a Republican candidate who attended the January 6 “Stop the Steal” rally in D.C. emerged victorious in the GOP primary for the Ninth Congressional District. J.R. Majewski will now face Democratic Rep. Marcy Kaptur, a longtime incumbent whose district was just redrawn by Republicans to favor their party.

LaRose’s win in the secretary of state primary will at least prevent a candidate who had vowed to “fight back” against a purportedly stolen election to become Ohio’s chief elections official.

But LaRose himself had mirrored Trump’s rhetoric against mail voting in 2020 when he restricted each county to only having one drop box location for mail ballots. This year, LaRose indicated that he would back calls to impeach the state’s GOP chief justice because she voted to strike down his party’s gerrymander, and he also defended Trump’s false claims that voter fraud is a widespread problem, which triggered a worried rebuke from the editorial board of the Cleveland Plain Dealer.

LaRose’s efforts earned him Trump’s endorsement in late April, one week before the primary.

In November, LaRose will face Democrat Chelsea Clark, who this week seized on the news that the Supreme Court was poised to overturn Roe. “I’ll do everything in my power when elected to ensure that Ohioans know their Secretary of State will continue to advocate for their reproductive freedom,” she tweeted yesterday. 

The post Indiana Lawmakers Who Introduced Full Abortion Ban Lose GOP Primaries appeared first on Bolts.

A Supreme Court majority has signed on to a draft opinion that would end federal protections for abortion rights, Politico reported last night. “We hold that Roe and Casey must be overruled,” Justice Samuel Alito wrote, saying it was time to “return the issue of abortion to the people’s elected representatives.” If issued in coming weeks, such a ruling would immediately criminalize abortion in states like Michigan that already have anti-abortion laws on the books, with other states sure to follow.

The end of Roe would spark conflicts in all 50 states, with governors and legislatures newly empowered to set their state’s course on reproductive freedom. But even within each state, county officials would end up with a great deal of discretion, sparking an uneven patchwork of policies that would vary from one locality to the next.

In states with newly-enforceable laws criminalizing abortion, prosecutors would decide how harshly to target people who provide or receive an abortion, and in some cases local officials have already shown their eagerness to use the criminal code to go after reproductive rights. But prosecutors could also draw a protective line in the sand and refuse to bring abortion-related charges. 

From Michigan to Texas, some prosecutors are already vowing that they will not prosecute abortion. And similar questions may quickly reverberate across prosecutors’ offices nationwide, including some like Arizona or Tennessee that have both “trigger laws” on the books and prosecutors’ races this fall.

Eli Savit, prosecuting attorney of Michigan’s Washtenaw County (home to Ann Arbor and nearly 400,000 people) is among the prosecutors already vowing to not prosecute abortion in a state that could soon criminalize it. A progressive who first won in 2020, Savit joined six other prosecutors last month promising to support reproductive freedom and declaring that Michigan’s 1931 law making abortion a felony—a so-called trigger law that’s on the books in some form or another in 21 other states— is unconstitutional. 

Bolts talked to Savit about the importance of prosecutors when it comes to abortion rights—and also the limits of their power as those rights are under threat.

You signed a letter just a few weeks ago, alongside six other prosecutors, stating that you “cannot and will not support criminalizing reproductive freedom.” What concrete policy would your office adopt if Roe is overturned? Would you ever bring charges under Michigan’s 1931 anti-abortion law if it goes back into effect?

I can’t speak for the other prosecutors, but I’ve been very clear about this. Categorically, we’re not prosecuting abortion in Washtenaw County. We’re not prosecuting people that obtain abortions. We’re not prosecuting doctors. We’re not prosecuting medical providers. We’re not prosecuting under that law. 

What leads you to take this position?

A prosecutor’s job should be to protect the health and welfare of people in their communities. And what we know is that the potential overruling of Roe vs. Wade, and in Michigan the recriminalization of abortion, will set the health and welfare of our community back a great deal. 

I do not want to be presiding over a prosecutor’s office that has anything whatsoever to do with criminalizing people for exercising reproductive freedom, with criminalizing doctors for providing abortion, with reviving the days in which abortion was done in the shadows without proper health and safety techniques being utilized. People died regularly from abortion before Roe vs. Wade. To not take the stand that we did, to not say very clearly that we will not prosecute abortion, there could be blood on our hands. That’s something that I don’t find acceptable in any way, shape or form.

If Michigan’s 1931 law takes effect, who could face criminal charges where prosecutors choose to enforce it?

It is not exactly clear at this point. Very obviously, the law would criminalize providers; the law has archaic language relating to inducing a miscarriage. Is there a criminal liability potentially under that law for women, for people that are seeking abortions? Potentially. My understanding is that that’s an open question but the threat is there. And the very ambiguity in the law makes it in some ways even more pernicious, because there’s so much uncertainty about what it means if the Supreme Court overrules Roe.

As the Supreme Court stated in Casey, “liberty finds no refuge in a jurisprudence of doubt.” By the same token, nobody in my community should have any doubt as to whether they’ll be facing criminal charges as a result of an abortion. 

A prosecutor in a neighboring county criticized your letter, saying it’s beyond the role of a prosecutor to say they will not apply a law. You have taken the similarly categorical stance of declining categories of charges on other issues, such as sex work. What is your response to that type of criticism, and why do you think it is the role of a prosecutor to take the stand you are taking?

If people think that categorical declination to enforce an archaic law somehow violates the oath of office, then they’ve got problems with prosecutors across this state for not prosecuting adultery. That is still a law on the books in Michigan; there’s a law that criminalizes adultery, and not a single prosecutor is spending any time and any resources prosecuting people for cheating on their spouses. I think there’s virtually unanimous consensus that whatever you might think about infidelity, it’s not something that is the proper provenance of the criminal legal system. 

Prosecutors do this all the time. We elect prosecutors precisely to exercise their discretion in line with the community’s values and in line with their views as to the health and safety of the community. That’s what I’m doing here. 

Certainly, I think that the [1931 anti-abortion] law needs to be overturned—we have ballot amendments here in Michigan that would do that, there’s litigation going on—because a prosecutor’s discretion is only good until the next election. And if people don’t like it, I’m answerable at the ballot box. But right now I’m doing what I believe is in the best interest of my community, what the people of Washtenaw County elected me to do, and that’s what prosecutors do day in and day out. 

As long as Michigan’s law stands, are you concerned about other law enforcement or state government preempting your discretion? 

I do think it’s important to be honest about the limits of my authority. ounty prosecutors exercising their discretion not to charge abortion is great. But discretion only goes so far. So long as our 1931 abortion ban remains on the books, law enforcement could investigate and even arrest people for abortion—notwithstanding what the prosecutor ultimately does with charging. Similarly, Michigan law already allows the attorney general to prosecute any state-level case in Michigan, so there’s already the theoretical possibility that a state-level prosecutor will step in. Our current AG, [Democrat] Dana Nessel, has made it abundantly clear that she won’t prosecute abortion, either. But it’s a structural concern here in Michigan.

That’s why this is really an all-hands-on-deck approach. That’s why I’m strongly supporting the ballot initiative in Michigan to amend the state constitution to expressly protect abortion. It’s why I’m supportive of both the governor and Planned Parenthood’s lawsuits seeking to strike down the 1931 law under the Michigan Constitution. And it’s one of many reasons why we need to elect pro-choice majorities in the Michigan Legislature, and re-elect our pro-choice state-level officials.

What would you say to prosecutors around the country who may have pro-choice views? How should they respond to Roe being overturned?

Every jurisdiction is different, and I don’t purport to tell other prosecutors what to do. But every prosecutor I know wants to do what they can to keep their communities safe, and to ensure that people feel safe and secure.

People are scared right now—scared that a fundamental right that’s been expressly recognized for nearly 50 years is about to be swept away, scared they’ll no longer have full control over their own bodies or their decision whether to have a child, scared that they may be investigated, arrested, and prosecuted for exercising a right they believed was sacrosanct. So, for me, the position was an easy one. I’ll be damned if I’m going to prosecute anyone for exercising a right that I believe is fundamental. And I think it’s important to let my constituents know that, in no uncertain terms.

This interview has been edited for length and clarity.

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