EXECUTIVE SUMMARY
Laws based on the concept of fetal personhood are creating a catch-22 for women who experience pregnancy crises or whom health system staff suspect of having engaged in wrongdoing.
- A woman in Ohio visited a hospital three times during her miscarriage before she finally lost the fetus at home. When she returned to the hospital because of life-threatening hemorrhaging, someone reported her to the police — who tore the toilet out of her house to find the miscarried fetus.
- Hospital staff, police, and prosecutors sometimes suspect women — especially if they are poor and/or women of color — of wrongdoing when their miscarriage or pregnancy is normal, leading to unjust arrests.
- More than eight in 10 people whose pregnancies were criminalized are listed as indigent because they cannot afford a lawyer.
Laws purported to protect fetuses and that define zygotes, embryos, and fetuses as people are used to criminalize what people do during pregnancy.
“Fifteen fetal personhood laws exist, and three states designate fetuses as people,” says Dana Sussman, JD, MPH, the deputy executive director of Pregnancy Justice in New York City.
Personhood laws are not popular among voters but appear to be popular among conservatives and some politicians in states that ban abortion.
For instance, Mississippi voters stopped an amendment that would designate inseminated human eggs as legal persons from the moment of fertilization. When this amendment failed, the backers set up a challenge to Roe v. Wade and ultimately succeeded in overturning nearly 50 years of constitutional protection for pregnant women.1
According to the Guttmacher Institute, states have introduced five bills establishing fetal personhood — and none of them passed a single chamber.2
Legal Jeopardy
Even without fetal personhood explicitly enshrined in law, states and local law enforcement are using that concept to pass laws that criminalize pregnant women for their behavior. For instance, Indiana enacted a law that requires miscarried or aborted fetuses to be interred or cremated. This creates legal jeopardy for anyone having a miscarriage outside of a hospital or clinic setting.3
Even states without this law are sending women to jail for how they handled their miscarriages. In abortion-ban states, this creates a catch-22 for women who watch their pregnancies end badly. Their water breaks too early for the fetus to survive, and they want to receive care in the hospital. However, they are turned away because hospitals do not want to provide miscarriage treatment out of fear that their actions will be criminalized by the state under its anti-abortion law. Women are sent home and left with no answers on how to handle miscarriages or the blood and tissue expelled.
Here is how it can play out: Ohioan Brittany Watts began to experience a miscarriage at 21 weeks and five days of pregnancy. Watts’s physician said there still was a fetal heartbeat, but her water had broken, and the fetus would not survive. The physician advised Watts to seek an abortion to deliver the nonviable fetus and eliminate the risk of death. Watts followed her physician’s advice, making multiple trips to the hospital. She was not helped. When Watts went home, she miscarried into the toilet.4,5
Watts returned to the hospital when her life-threatening bleeding did not stop. Someone in the hospital reported her to law enforcement. Police went to her house and tore out the toilet to look for evidence of the fetus. This was despite the fact that Ohio does not have a law that requires women to bury or cremate the remains of a miscarriage. Once police found the fetus in the bathroom pipes, they arrested Watts, a Black woman, for “abuse of a corpse,” which could land her prison time.4,5
Watts’s attorney, Traci Timko, told the Associated Press what the stakes are for women like her client, who suffer crises during pregnancy. “For rights of people with the capacity for pregnancy, this is huge. Her miscarriage was entirely ordinary. So, I just want to know what [the prosecutor] thinks [Watts] should have done. If we are going to require people to collect and bring used menstrual products to hospitals so that they can make sure it is indeed a miscarriage, it’s as ridiculous and invasive as it is cruel.”5
Reproductive healthcare providers need to know how their patients, even after undergoing a legal abortion or an ordinary miscarriage, could be treated by local law enforcement and prosecutors. The legal risks are becoming more common and threatening in the Dobbs era.
“These cases existed before Dobbs, and we’re uniquely prepared for this new reality that most people are not paying attention to,” Sussman says. “The right to abortion has impacted far beyond abortion alone; it impacts people wanting pregnancies not getting care when they have health risks and fetal anomalies.”
People can relate to the idea of miscarrying in a toilet, Sussman notes. “What I’ve seen and hadn’t seen before is a real conversation about what miscarrying feels like,” she says. “People on social media are saying, ‘I miscarried in a toilet.’”
In cases like Watts’s, there is an unrealistic expectation that people perform or react in a particular way when they are experiencing pregnancy loss. But no one knows what a person should do when they have a miscarriage at home. There is no guidebook.
“Every fact pattern has been used as evidence to imply criminality around these experiences. I don’t have an easy answer here,” Sussman explains. “A lot of this is racism and sexism, and it’s not understanding how people react in these situations, and it’s policing behavior of certain folks and holding them to certain standards.”
The rhetoric of fetal personhood is contributing to the rise in pregnancy criminalization. Around 84.7% of these arrests are pregnant people who are listed as indigent because they cannot afford a lawyer, according to Pregnancy Justice’s 2023 report.6
“This is the policing of poverty,” Sussman says. “Our first report showed this was overwhelmingly Black women who were targeted. Our second report shows that Black women are overrepresented, but the numbers have shifted, so there are more white women in this group.”
The demographic change could be related to how the methamphetamine and opioid crises have affected poor white communities. Criminalization of pregnancy typically involves the use of drugs during pregnancy despite the birth of a healthy baby, Sussman explains.
Anyone who is pregnant or who could become pregnant is at risk of arrest, prosecution, and conviction, the report authors noted. State supreme courts in South Carolina, Alabama, and Oklahoma have ruled that criminal laws that protect children from harm can be applied to fetuses.6
Nearly 12 states have broadly incorporated fetal personhood into their state constitutions or state laws. Five states have incorporated fetal personhood into their criminal laws, and 38 states have enacted fetal homicide statutes, creating a separate crime for causing the loss of a pregnancy. Twenty-nine states passed laws that authorize homicide charges for causing the loss of pregnancy at conception.6
Healthcare providers are mandated in some states to report suspected injury to a fetus, but they do not always understand what that means, Sussman says. “There is confusion and lack of clarity around what your state laws say,” she adds. “There is deep stigma, particularly for poor people and people of color, who may be suspected of using drugs.”
Reporting women for a miscarriage could be related to racism and sexism and a lack of understanding of what healthcare providers are required to report and how someone may react when confronted with a pregnancy crisis, Sussman adds.
The idea that someone like Watts could abuse a corpse when it is about what happened when she experienced a miscarriage is unjust.
“I think this is unlawful and a misuse of criminal law in this case,” Sussman says.
REFERENCES
- Baumann N. Congressional GOP pushes zygote personhood bills. Mother Jones. Nov. 8, 2011.
- Guttmacher Institute. State legislation tracker. Updated Dec. 15, 2023.
- Maienschein J. Dead fetuses are not “remains.” Slate. May 31, 2019.
- McBride C. Woman’s abuse of corpse case heads to grand jury. Tribune Chronicle. Nov. 4, 2023.
- Carr Smyth J. A Black woman was criminally charged after a miscarriage. It shows the perils of pregnancy post-Roe. Associated Press. Dec. 16, 2023.
- Kavattur PS, Frazer S, El-Shafei A, et al. The Rise of Pregnancy Criminalization: A Pregnancy Justice Report. Pregnancy Justice. September 2023.
Laws based on the concept of fetal personhood are creating a catch-22 for women who experience pregnancy crises or whom health system staff suspect of having engaged in wrongdoing.
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