In November of 2023, a local news story gained traction nationwide: “Woman’s miscarriage leads to ‘abuse of corpse’ case before grand jury.”^[6] In the case, the Prosecutor’s Office in Warren, Ohio, charged Brittany Watts with felony “abuse of a corpse” after she had a “miscarriage delivery” while using the restroom.^[6] While the grand jury declined to indict Ms. Watts on January 11, 2024, the story still reflects a worrying trend: more pregnant people* may face criminal charges related to their pregnancies.^[1] This story was particularly striking because it demonstrates how pregnancy criminalization may affect those who experience any form of pregnancy loss, even those who did not seek an abortion. Pregnancy loss is an umbrella term for any pregnancy that does not result in a live birth such as miscarriage, stillbirth, or abortion.^[20] Even if the majority of those who experience pregnancy loss may not face legal liability for the loss, this trend will likely have a chilling effect on pregnant individuals seeking healthcare. 

Background

There has been a stark increase in the number of criminal cases brought against pregnant and postpartum individuals in recent years.^[9] Because pregnancy is an essential element to these charges, “the state has constructed a status through which a unique set of criminal penalties applies to pregnant [people] and to no one else.”^[15] Pregnancy Justice has found that there were over 400 cases against pregnant individuals in the thirty-two year period from 1973 to 2005.^[16] In the sixteen year period from 2006 to 2022, however, there were about 1,400 cases.^[9] This increase is due, in large part, to the Personhood Movement and its targeted efforts to recognize fertilized eggs, embryos, and fetuses as “persons” with their own rights under the law.^[9,21] While these efforts largely seek to delegitimize and abolish the right to abortion, they also have consequences on all reproductive choices. The push for fetal personhood^** impacts all pregnant people regardless of whether they intend to carry their pregnancy to term because it inherently requires consideration of the fetus’ rights against the pregnant person’s rights. Concerns for fetal rights cause increased surveillance of pregnant people’s bodies and actions. After the majority in Dobbs v. Jackson Women’s Health Organization declared that there is no constitutional right to abortion, many people who menstruate deleted their period tracking applications amid fears that the data from the applications could be used against them in future criminal cases in states where abortion has become illegal.^[3,5] These fears may extend to those who experience miscarriages since lawmakers and other government actors conflate miscarriages with abortions.^[20] Even though the cause of miscarriages is largely unknown even after evaluation, prosecutors continue to hold pregnant individuals responsible for these pregnancy losses due to this conflation and due to misunderstandings about what causes miscarriages.^[20] 

The Personhood Movement and Criminalization

In the U.S., the Personhood Movement gained traction after the Supreme Court issued its landmark decision legalizing abortion in Roe v. Wade in 1973.^[11] While there were proponents of the Personhood Movement prior to Roe, the Supreme Court’s decision thrust abortion to the forefront of American consciousness and made abortion “emphatically a public and moral issue of nationwide concern.”^[10] The decision came as a shock to many pro-life Americans because they assumed that all people believed life starts at conception.^[10] Personhood activists utilized Justice Blackmun’s language in Roe as the foundation of the movement: “If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the [14th] Amendment.”^[11,18] 

Personhood activists quickly sought to enshrine fetal personhood in federal law through a Human Life Amendment.^[11] When this failed, the Personhood Movement shifted focus toward state efforts to undermine Roe.^[11] In 1986, Minnesota became the first stage to pass a “fetal homicide”(also called feticide) law which criminalized causing pregnancy loss.^[11] Currently, thirty-eight states have laws which allow homicide charges for causing pregnancy loss (although the actual charges for pregnancy loss vary state-by-state).^[19] Even though thirty of these states include language that either explicitly or implicitly precludes charging pregnant people with respect to their own pregnancy losses, prosecutors have still brought feticide or similar charges against pregnant individuals.^[4] In addition to fetal homicide laws, states began expanding the definitions of “child” to include fetuses in their child abuse, neglect, or endangerment statutes.^[9] After the Dobbs, many states were poised to enact explicit abortion restrictions.^[3,13] As of January 2024, twenty-one states have either enacted full abortion bans or restrictions on abortion.^[12] 

Criminalization of Pregnancy Loss and Surveillance 

In pursuing charges against pregnant people, law enforcement officials and prosecutors have placed the rights of the embryo or fetus over the rights of the pregnant person. There are two broad categories in which officials pursue charges:

1) The pregnant person allegedly caused or was about to cause harm to the embryo or fetus.

2) The pregnant person did not treat the pregnancy loss like the death of a person. For the first category, law enforcement brought charges against pregnant people regardless of birth outcome, meaning that the individuals were charged even if they had a live birth of a healthy baby.^[9] 

The majority of charges include alleged harm caused to the embryo or fetus by substance use. Even though unbiased research indicates that prenatal exposure to criminalized substances such as methamphetamine, cannabis, and cocaine do not cause specific or unique harms, pregnant people continue to be arrested for substance use.^[17] Of the 1,396 criminal arrests examined, the overwhelming majority (95.5%) included substance use as at least one ground for arrest.^[9] For 92% of criminal child neglect or endangerment cases, law enforcement officials used substance use as grounds for the charges.^[9] Substances not only included criminalized substances such as methamphetamine, cannabis, and cocaine, but also legal substances such as prescription opiates, nicotine, and alcohol.^[9] As Ocen indicates, “The expansive use of criminal law to regulate pregnant [people] . . . has extended beyond drug use to legal conduct that is believed to be harmful to fetal life.”^[15]

Some law enforcement officials charged people who experienced pregnancy loss, had pregnancy-related complications, or had an abortion with attempted or completed feticide, murder, or manslaughter.^[9] Since these charges require an element of intent or an examination of the accused’s actions, investigation into a pregnant person’s life follows. “These prosecutions place all pregnant women at risk for criminalization if they engage in behavior that does not assure optimal fetal health…”^[15] Anything from going against a doctor’s recommendations to eating unhealthy food while pregnant could be cited as intent to harm the fetus.^[15] Among cases with charge information, 1.2% involved a charge for unsanctioned abortion.^[9] 

Charges that allege the pregnant person did not treat the pregnancy loss like the death of a person, require pregnancy loss as a precursor to the charge. Among cases with charge information, 2.0% involved pregnant people who were charged with tampering with remains or abuse of a corpse.^[9] Pregnant people were charged both when they brought fetal remains to a medical provider and when they disposed of the fetal remains themselves, as both were seen as evidence of tampering.^[9] In other cases with charge information, 1.0% were charged with failing to report a birth or a death.^[9] The majority of the criminal laws used in these cases were never meant to apply to pregnancy, yet government actors brought charges against pregnant people.^[9] Based on the cases, pregnant people were at risk of being charged regardless of whether or not they reported a pregnancy loss.^[9] In such cases, it appears that pregnant people are punished for the pregnancy loss itself because they were punished regardless of whether they reported the pregnancy loss. 

The criminalization of pregnancy loss frames pregnancy loss as a personal failure even though pregnancy loss is often outside the individual’s control.^[20] The implications of increased surveillance on pregnancies include the added scrutiny on the decisions of pregnant people. Fears of prosecution may deter pregnant people from seeking medical care which, in turn, will cause negative health outcomes for both the pregnant person and the fetus. When there is discretion in reporting and charging pregnant people, discrimination is often embedded in the determinations.^[22] For example, communities that are historically marginalized are more reluctant to seek healthcare for fear of discrimination.^[7] In addition, criminalization does not address systemic failures that lead to negative health outcomes. For example, many poor people do not have access to healthcare because they often lack health insurance. Those who do not seek prenatal care may be charged with neglect or with a feticide charge if they experience a pregnancy loss. Charging the poor individuals does not remedy the fact that they do not have access to healthcare and further exacerbates the issue by making the individuals incur legal fees to address the criminal charges.^[8] As a result, the most vulnerable populations (in this case, poor people) are most affected.^[9] 

Miscarriage Stigmatization 

Pregnancy loss charges stemming from miscarriage may stem from prevailing misconceptions surrounding miscarriage. Miscarriages are often misunderstood because they are often discussed in imprecise terms and because they are still a taboo topic. When miscarriages are criminalized, it furthers stigmatization which then contributes to further criminalization.

A miscarriage is defined as a pregnancy loss before 20 weeks.^[9] Pregnancy loss that occurs after 20 weeks is considered a stillbirth.^[20] The broader public may still confuse the terms miscarriage and stillbirth as many journalists use miscarriage to describe pregnancy loss at any stage of pregnancy.^[20] Miscarriages and stillbirths are distinct from the elective termination of pregnancy, or abortion.^[20] Despite this, lawmakers often conflate miscarriages and abortions which furthers misconceptions of the two.^[20] For example, lawmakers have used “induced miscarriage” or “procuring a miscarriage” to describe intentional attempts to terminate a pregnancy.^[20] Such language contributes to the belief that miscarriages are the fault of the pregnant person and garners suspicion of those experiencing pregnancy loss. There is also added confusion because Misoprostol and Mifepristone are used for abortions as well as miscarriage treatment.^[20] There are cases where criminal investigations or arrests were made for alleged self-managed abortions, but it is unclear how many were actually found to be abortions versus pregnancy losses.^[20] 

About 10 to 20% of confirmed pregnancies result in a miscarriage.^[20] This percentage is likely higher, however, because many miscarriages take place before a person knows they are pregnant.^[20] Even though they are very common, miscarriages are not talked about because there is shame and blame placed on the pregnant person.^[14] Many people refrain from disclosing their miscarriages because of social norms and societal feelings of discomfort around the subject.^[14] For instance, pregnancy announcements are usually delayed until after the first trimester (when pregnancy losses are less likely) to avoid talking about miscarriages altogether.^[14] Commonly, “the cause of a pregnancy loss is unknown even after thorough evaluation.”^[20] In the majority of miscarriages that have a suspected cause, 50 to 70% are attributed to genetic abnormalities.^[20] While there are risk factors for pregnancy loss (such as diabetes, tobacco use, the pregnant person is over the age of 35, etc.), risk factors do not cause pregnancy loss.^[20] Pregnant people should therefore not be faulted for a pregnancy loss even if they have one or more risk factors.^[20] 

Pregnancy loss like miscarriage is in and of itself devastating to the people who want to carry their pregnancies to full term and criminalization only causes pregnant individuals more trauma and distrust of healthcare providers. 

Conclusion

Historically and in recency, the criminalization of abortion implicates the surveillance of pregnant peoples “bodies, decisions, and conduct, no matter who states have chosen to investigate and prosecute.”^[2] As the 2023 Pregnancy Justice report asserts, “pregnancy criminalization perpetuates medical misinformation and intensifies the inequities that make pregnant people vulnerable to arrest in the first place.^[9] The stigmatization of miscarriage contributes to and reinforces criminalization of miscarriage. If legislators are truly concerned about the health outcomes of pregnant people, embryos, and fetuses, then lawmakers should refrain from utilizing personhood language. Lawmakers should instead focus on using accurate language when describing pregnancy loss and carve out explicit exemptions for pregnant people in fetal homicide laws. Including personhood language in the law only lends itself to more criminalization of and reluctance to seek care by the most vulnerable population of pregnant people – poor individuals. Given the data from Pre-Dobbs cases, the Post-Dobbs era will likely bound pregnant people to unwanted pregnancies or imprison them for failing to bring the pregnancy to term.

For a complete report on pregnancy criminalization please refer to The Rise of Pregnancy Criminalization: A Pregnancy Justice Report.