But in the years since Roe v. Wade, the legal landscape has changed. More and more, the U.S. has punished women for actions that may be perceived as endangering their pregnancies. “The blueprint already exists to bring these cases,” Dana Sussman, the acting executive director of the National Advocates for Pregnant Women, told me. In the past few decades, the fetal-personhood movement—which advocates the idea that a fetus has the same rights as a person already born—has gained a foothold in certain state legislatures. Many have passed laws recognizing fetuses as potential crime victims. About 38 states have feticide statutes, which criminalize killing a fetus. These laws, ostensibly written to protect pregnant women from violence by others, were passed as part of a strategic campaign by anti-abortion activists. Many feticide laws currently make exceptions for a woman getting a legal abortion; in some states with newly enacted abortion bans, Sussman predicted that the exemption would likely disappear. “Even with what we consider quite explicit language around not using those laws to prosecute pregnant women, they are used with some regularity against pregnant women already,” she said.

For instance, the National Advocates for Pregnant Women has tracked more than 1,700 cases from 1973 to 2020 in which individuals were investigated, arrested, otherwise detained, or forced to undergo medical intervention by the state for actions that were interpreted as harmful to their own pregnancies. Those cases included allegedly intentionally falling down the stairs (which the woman denied; the state never pressed charges), using drugs, and attempting suicide. Dozens involve women who self-induced abortions, though the exact number is still being tallied, a spokesperson for the organization told me.