Almost 1 million women are incarcerated or under community supervision in the United States. Women more often enter the criminal legal system for reasons related to past victimization, trauma, and co-occurring mental health and substance use issues than men do. Women of color in particular are disproportionately represented at every stage of the criminal legal system, from arrest to incarceration—making up about half the population of women in prisons and jails. These racial disparities are the result of systemic and social inequities that, compounded over multiple stages in the legal process, produce disproportionately negative outcomes for Black and brown Americans.

Although studies have examined living conditions for pregnant people in custody, no state or national data are regularly collected. The criminalization of otherwise legal or nonprosecutable behavior (including attempting suicide, smoking cigarettes, using prescribed medication, or drinking alcohol) because a person is, was, or is suspected to be pregnant appears to have risen over recent years. Regular data collection would help researchers and practitioners build knowledge about the experience of pregnancy during system involvement, especially when comparing arrest, prosecution, and conviction rates.

With support from the Catalyst Grant Program, RestoreHER, a Georgia-based policy advocacy reentry organization, initially planned to assess the criminalization of behavior during pregnancy in one county in Georgia, with the idea that these data might be indicative of national trends and might have implications for constitutionally protected pregnancy outcomes across the United States. RestoreHER researchers planned to evaluate the rates of prosecution of pregnant people and the prosecution of people for pregnancy-related charges. Pregnancy-related charges were defined as charges that are brought forth because a person is pregnant that would not have been filed otherwise, such as the charge of child abuse for using drugs while pregnant. RestoreHER researchers also planned to compare the cases prosecutors pursued with the corresponding charges from law enforcement within a specified time frame, stratifying by race. Through this project, RestoreHER researchers planned to regularly track data to identify trends over time and across policy change and assess the needs of this marginalized population in sentencing and policy reform.

Uncovering the Hurdles to Data Access

When this project was proposed, Roe v. Wade (1973) was still intact; shortly before the start of data collection, however, the Supreme Court overturned Roe in its Dobbs v. Jackson (2022) decision, leaving abortion legislation at the discretion of individual states. In light of the Dobbs decision, RestoreHER researchers were hesitant to conduct or advocate for increased data collection on pregnancy outcomes in the target county, especially within the criminal legal system in Georgia, which, like many states, passed legislation restricting abortion shortly after Dobbs. Their concerns about compiling a list or surveying pregnant system-involved people included the risk of additional legal system involvement; for example, increased monitoring could enable states to prosecute someone for seeking or obtaining an abortion.

Ultimately, the RestoreHER team moved their Catalyst project forward without pressing for new data collection. They gained insights into the barriers to data transparency with respect to the experiences and outcomes of pregnant system-involved people. To discover what data exist and the processes to access them, the researchers sent requests for records of public court case filings and law enforcement files through the Freedom of Information Act and more informal channels. They learned that the county of interest does not have established policies for accessing data, in line with many other counties nationally. Numerous government officials were unaware of the processes for obtaining access or who might be aware. Of note, the researchers were attempting to access police and court records, not hospital or other medical data, meaning the data are not protected under the Health Insurance Portability and Accountability Act (HIPAA).

A primary limitation for RestoreHER researchers was the lack of direct or indirect evidence about pregnancy status. In the United States, unlike information on sex, age, and race and ethnicity, information related to pregnancy is not routinely collected by law enforcement and other criminal legal system entities (from arrest through prosecution and incarceration). As mentioned above, however, the Dobbs decision necessitates thoughtful consideration before making efforts to uniformly collect these data. Further challenges for RestoreHER researchers included

• lack of standardization in data across organizations (government entities, health/medical providers, service/community organizations),
• an inability to access data from former service providers, and
• obtaining authorization to receive available data.

Lessons Learned

We cannot fix what we cannot measure, and we cannot measure without access to data. Increasing the transparency of data about the experiences and legal rights of pregnant people will help us hold our public systems accountable and highlight and reduce system harms. Based on their experiences with this project, the RestoreHER research team provided several recommendations for those doing research in this area.

Tailor the research approach to existing processes in the systems of interest. At the outset of this project, the RestoreHER research team developed relationships with officials in the jail system to learn about data availability and procedures, inform the study design, and establish rapport.

Learn how and when data are collected, whether and how collection is standardized across years and reproductive care providers, and whether a jail or system’s current provider has access to past data. The research team recommends the explicit collection of these data in states where protections of reproductive care, specifically abortion access, are enshrined in the state constitution. During this project, RestoreHER researchers found that the jail’s current care provider could neither easily access nor interpret data collected by the previous provider.

Use an intersectional focus across race and gender to reveal trends in potential targeting, arresting, and incarcerating of pregnant people.

Develop relationships with the following:

• Local criminal legal system actors: Though time-consuming, building trust with on-the-ground data managers and health care practitioners working in the criminal legal system is critical for understanding the content and context of the data (see the previous recommendation). Health care providers can know what data on pregnancy exist and can be used to begin the data-sharing and -authorization processes, while preserving the privacy between patient and provider. Because of the many layers of approval involved, and because some systems have not yet established data-sharing processes, navigating these mechanisms with the assistance of on-the-ground staff can be vital to a project’s success.
• Police departments: Police departments often have a wealth of data, including on charges, dates, and arrest locations. The sex and race of the arrested person can also be available, although not all jurisdictions track this information consistently. These data are especially important when comparing records with those from prosecutors’ offices to understand under what circumstances and for whom charges are not pursued.
• Prosecutors’ offices: To understand charging and sentencing patterns, data from prosecutors’ offices can be compared with arrest data from police departments. Police department data do not include outcomes (e.g., whether a person was charged, the sentence, additional charges). Prosecutors’ office records will only show people whom district attorneys decided to charge. With access to both sets of records, researchers can discern patterns between arrest and prosecution.
• Public defenders’ offices: Building relationships with public defenders' offices and developing data-sharing agreements enable the collection of pregnancy information without relying on systems that could bring harm or prosecution to vulnerable people over their health decisions. It is important to note that these data would not include people who retain private defense attorneys or had charges dropped, so supplemental data would still need to be collected.
• Reentry and direct service organizations: Relationships with direct service organizations can enable researchers to connect with people involved in the system and can help researchers access those organizations’ own quantitative and qualitative data. With their experiences serving system-involved clients, these organizations can help contextualize and substantiate quantitative records and directly connect researchers to local criminal legal system actors or system-involved people. Relationships with reentry and direct service organizations and, by extension, the voices of their communities, are instrumental in holistically understanding the experience of being pregnant while navigating the criminal legal system.

Looking Forward

RestoreHER furthered this work by tackling the issues of transparency and access to pregnancy-related data in extensive reports that will be published on the RestoreHER website and shared broadly, bringing attention to the importance of these data and pregnant people in the criminal legal system.

Since the 2022 Catalyst grant period ended, another organization, the Marshall Project, investigated another facet of this issue by tracking prosecutions for pregnancy loss and, through an extreme effort searching hundreds of documents, has begun constructing a database on such prosecutions. Even though this database was not the result of a jurisdiction seeking to advance its own transparency, we hope that increased interest in such projects speaks to a decreased tolerance for data obscurity. As we push jurisdictions to expand their transparency efforts, we can better understand and serve the needs of people involved in the criminal legal system.

The Catalyst Grant Program helps nonprofit organizations use data and technology to advance racial equity and reform in the criminal legal system. Visit the Catalyst Grant Program Insights page for more resources and stories about the grantees.