Access to high quality, unbiased reproductive health care that includes abortion, prenatal and contraceptive services, as well as fertility treatment, is core to self-determination and dignity, principles endorsed by the National Association of Social Workers’ Code of Ethics. However, health care and social welfare structures, which have historically promoted and implemented eugenic practices, continue to differentially surveil, regulate and criminalize the fertility of people whose reproduction is devalued by society. Pregnancy criminalization, or state intervention in a pregnant individual’s life that aims to restrict their bodily autonomy and/or freedom because of their pregnant status, includes criminalization of substance use during pregnancy and of attempts to self-manage abortion. Further, the extent to which social workers can exercise informed decision making and discretion that advances reproductive autonomy and justice is restricted by the lack of training in social work education focused on reproductive health.
We reviewed relevant policies and conducted a landscape analysis of social welfare research on pregnancy criminalization to provide an overview of the role of social workers in such cases. Using Street-Level Bureaucracy Theory, we examine how the role of discretion, a necessary aspect of social work decision making, impacts the ways in which policies around pregnancy criminalization are implemented in practice.
Pregnancy criminalization often occurs when policies that aim to protect children are applied to fetuses, and in some states, embryos. For example, 23 states and D.C. consider substance use during pregnancy to be child abuse. Additionally, criminalization results from laws developed with the intention of regulating behavior during pregnancy (e.g., fetal homicide statutes in 38 states; in Iowa such a law led to the arrest of a pregnant woman who was reported to the police for attempted feticide after she fell down the stairs and sought treatment in a hospital). The role of law in pregnancy criminalization is mediated by the level of discretion afforded to social workers and medical providers who implement policy on the ground. Despite this context, there is a dearth of social welfare research on pregnancy criminalization. However, drawing from other disciplines, we identified that social workers are involved with pregnancy criminalization in roles that are hospital-based, within county child welfare programs, and through involvement in pregnancy surveillance in publicly funded prenatal care programs. This analysis identified important gaps in social work scholarship and education that are critical for cultivating social work’s role in advancing reproductive justice rather than perpetuating reproductive oppression.
Conclusions and Implications:
Surveillance and criminalization of people’s behaviors during pregnancy, including state-level punitive policies around substance use during pregnancy and any action the state interprets as an attempt to self-induce abortion, is proliferating. Given the role of social work in pregnancy criminalization, it is critical to examine if social workers are prepared to use discretion to support or undermine people’s reproductive self-determination and dignity. Additional research is needed to address the ways that health care, welfare and law differentially surveil and criminalize pregnant people based on assumptions and biases about race and socioeconomic status.