“Fetal Personhood” and Family Separation in South Carolina

November 29, 2023

Something terrible is happening in South Carolina. So-called “fetal personhood” laws are facilitating the criminalization of pregnant people for “child neglect,” and “endangerment.” This legal fiction – that pregnant people can neglect or endanger a child who has yet to be born – has a devastating impact for families across the state, particularly families of color.

The disproportionate impact of this function of fetal personhood laws on families of color is decidedly not because they are more likely to engage in activities that supposedly amount to neglect or endangerment. Rather, it is because racism, particularly anti-Black racism, leads to disproportionate surveillance of pregnant people of color. For example, evidence shows that Black pregnant people are 60% more likely to receive urine drug tests than white pregnant people.

Lauren Smith, a Black mother in Greenville, South Carolina, is one of the many Black mothers who has experienced the consequences of racist drug testing firsthand. For the past four years, she has been awaiting trial for felony “child neglect” charges simply because at some point in her pregnancy, she used marijuana. The Department of Social Services informed her that her positive test for THC meant that she couldn’t take her baby home. Smith recalls, “I didn’t feel like a mother, or a person who just had a baby. I didn’t feel like a victim. I felt like a criminal.” She said goodbye to her baby hours after giving birth.

Perversely, in the name of child safety and without any concrete evidence that a child is unsafe, South Carolina is ripping babies like Smith’s away from their families. This harrowing reality is a reminder that fetal personhood laws don’t just influence abortion access; they contribute to a world in which people face dire consequences for a vast array of decisions they make while pregnant.

We at the Woodhull Freedom Foundation recognize fetal personhood laws for what they are: attacks on our fundamental right to sexual freedom, which is inextricable from our right to reproductive justice. We unequivocally stand with Obstetricians for Reproductive Justice’s Dr. Heather, who notes that if states with such laws “truly cared about family systems, health, and prosperity – they would be investing better in social programs, schools, universal health care, and providing prenatal care for these people.”