Imagine dealing with the trauma of losing a pregnancy and facing a police investigation and criminal charges in the midst of your grief and devastation.
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It seems like a dystopian nightmare. Why would a woman who is already physically and emotionally wrecked be put through this kind of cruelty by the state?
It’s been happening more often than most people realize.
The nonprofit Pregnancy Justice found that pregnancy-related criminal arrests of 1,379 people took place between Jan. 1, 2006, and June 23, 2022 -- the day before the Supreme Court’s Dobbs ruling, which overturned Roe. That's a span of 16.5 years. Contrast those findings with the group's 2013 study, which reported only 413 cases during the 33-year period from 1973 to 2005.
That's a startling increase: over three times as many cases in half as many years.
In one recent case out of Warren, Ohio, prosecutors charged Brittany Watts, 33, with felony abuse of a corpse after she miscarried and delivered a stillborn, 22-week-old fetus at home on the toilet. The prosecutors in her case seem unaware of how exceedingly common miscarriages are, as well as what they usually entail.
A miscarriage often causes cramping, severe pain and heavy bleeding -- copious blood loss, mixed with tissue and clots. Many women, especially those sent home from hospitals reluctant to treat them unless they are in imminent danger of dying, will endure the pain and bleeding in their bathrooms.
Where did these prosecutors expect Watts to deliver when she was sent home from the hospital after her water broke? Did they expect her to sift through the blood-filled toilet and collect the remains of her stillborn child in the aftermath of the trauma she just endured?
It seems inconceivable that instead of having compassion, they chose to charge her with a crime.
This kind of treatment may be what the future holds for a growing number of women as abortion foes and lawmakers push to establish the personhood of a fetus. Soon, even an embryo may have legal rights outweighing those of the woman carrying it.
Farah Diaz-Tello is the senior counsel and legal director at If/When/How, a nonprofit that trains and mobilizes lawyers and law students who support reproductive justice. She says the threat of pregnancy criminalization is a growing national problem.
“No one should be criminalized or punished because of their pregnancy, but prosecutors twist the laws to punish people for the circumstances or outcomes of their pregnancies,” Diaz-Tello said.
Research by If/When/How found that people are often criminalized when medical providers report their patients to the police when they seek emergency care. Charges may relate to the disposal of fetal remains -- which people experiencing a pregnancy loss have to do, in the midst of trauma, without support -- or they may even allege a homicide if someone who had considered an abortion later experiences a stillbirth.
The risks of pregnancy-related charges are higher for people who are already targeted for surveillance and criminalization, including people of color, young people and women in poverty.
Watts is Black.
“Cases like this show us that, depending on your identity, the state treats some losses as tragedies and some losses as crimes,” Diaz-Tello said.
The issue of women being arrested or convicted for losing a pregnancy has implications beyond the loss of abortion rights. The larger question is: Do women deserve to be treated as fully human?
When anti-abortion advocates push to establish a fetus as a person, the woman carrying the fetus becomes less of one. Her well-being -- physical and mental -- is such a lower priority that she can be imprisoned for anything perceived as harmful to the fetus, even if it is no longer viable.
“The trend of criminalizing pregnancy has been accelerating as abortion bans have proliferated,” said Dana Sussman, deputy executive director of Pregnancy Justice. She points out that there is no guide or playbook as to how one is supposed to react or respond after having such a loss.
Additionally, there is no established rule on the proper way to dispose of fetal remains. Her organization has documented cases in which women who have buried fetal remains have been prosecuted. There are also cases in which a woman brings fetal remains to the hospital and is arrested and investigated.
Fundamentally, these cases are about using the criminal legal system to create fear and uncertainty around controlling one’s own body. It also reveals an obvious lack of understanding of science and medicine.
“There’s the false idea that your individual choices can control your pregnancy outcomes,” Sussman said. Sadly, it's just not true: A woman who desperately wants a baby and tries to make every healthy choice can still lose the pregnancy. And yet, there are cases in which a woman suffers a stillbirth and is charged with murder.
“It’s not medically sound, and it’s inhumane on so many levels,” Sussman said.