Roe Rollback | Criminalizing Miscarriage
**Editor’s note: This is the third article in a three-part series analyzing the consequences of a Roe v Wade overturn. The first piece looks at current and future threats to the right to privacy and autonomy. The second piece examines how a post-Roe Ohio would look.**
Few stories make headlines, but since 1973, women across the U.S. have been criminally prosecuted for suffering a miscarriage.
For years, pregnant women have been prosecuted or subjected to state intervention for substance abuse, refusing to have a Cesarean Section, attempting suicide, and even falling down the stairs.
There currently exists no federal or state law holding pregnant women liable for the outcome of their pregnancies; no state has written its drug delivery or distribution laws to apply to the transfer of drugs through the umbilical cord; no state has amended its child abuse laws to be applicable to eggs, embryos, or fetuses; and no law exists that exempts pregnant women from the full protection granted by federal and state constitutions.
Still, a study published by the Journal of Health Politics, Policy and Law finds, hundreds of arrests “or equivalent deprivations of liberty” have occurred, and they’ve been successful using “interpretations and applications of criminal laws,” usually child abuse or child endangerment laws, “that were never intended to be used to punish women in relationship to their own pregnancies.”
The study reports that between 1973 and 2005, 413 women in 44 states had state action taken against them during their pregnancies. More than half were African American, and 71 percent lacked the income to hire a defense lawyer.
Sixty-eight (16 percent) of the cases cited in the report involved women who had experienced a miscarriage, stillbirth or infant death. In 62 of those cases, prosecutors blamed the loss of the fetus on the mother’s actions or inactions during her pregnancy, and in 48, the women were charged with crimes like feticide, manslaughter, homicide by child abuse and first degree murder.
The study cites one particularly remarkable case of an African American resident of South Carolina, Regina McKnight. Although it was later proven that McKnight’s unexpected stillbirth was caused by an infection, she was arrested and charged with homicide by child abuse after the state alleged that the stillbirth resulted from her cocaine use.
After 15 minutes of deliberation, a jury sentenced McKnight to 12 years in prison. In 2008, the South Carolina Supreme Court unanimously overturned this conviction, describing the research the state used to convict McKnight as “outdated” and finding that her trial counsel “had failed to call experts who would have testified about ‘recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor.’”
As the U.S. waits for the confirmation of a conservative justice to the Supreme Court, many have expressed concern about what this could mean for access to reproductive healthcare and reproductive justice in general. Should Roe v Wade face attacks at the state level or be overturned completely (Ohio already has a law in the statehouse that would charge abortion providers and seekers with murder), the number of women facing murder charges for suffering a miscarriage or still birth is predicted to increase drastically, as doctors can’t tell the difference between a spontaneous miscarriage and an induced abortion.
Jessica Roach, Executive Director of Restoring Our Own Through Transformation (ROOTT), says criminalizing abortion would have dangerous consequences, including a hesitation or unwillingness on behalf of pregnant women to go to the hospital for pregnancy complications or even speak openly with their physician.
“You’re having a miscarriage — a spontaneous, cannot-be-controlled, nothing-you-can-do-about-it, physiological process of a miscarriage — that could potentially cause harm to your health and wellbeing, because you’re hemorrhaging,” she says, “but you’re afraid to go to the hospital because you have no idea whether or not they’re going to bring you up on charges.”
A Roe rollback will likely result in a surge of “personhood bills” and other similar statutes that seek to identify an egg, embryo or fetus as a legally separate entity from a pregnant person.
Already, as cited in the study published by the Journal of Health Politics, Policy and Law, prosecutors and judges have used feticide statues, state abortion laws that use language similar to personhood bills, and a misrepresented approach to Roe v Wade, designating viable fetuses as separate persons, to criminalize women who’ve miscarried or suffered a stillbirth.
And in 38 states and the federal government, feticide or unborn victims of violence acts have appeared, making it a crime to harm a “child in utero” and recognizing “everything from a zygote to a fetus as an independent ‘victim.’”
As women’s autonomy in reproductive healthcare and decision-making wanes, the formal criminalization of abortion (and by consequence, miscarriage) could pit fetus against mother in any legal proceedings, and in many states put the fetus’ life above that of the pregnant woman.