A Miscarriage, a Grand Jury, and the Policing of Black Women’s Bodies

The case of a Black woman in Ohio who’s been charged after a miscarriage confirms reproductive activists’ fears in a post-Roe era: that women’s pregnancies, especially Black women, would be criminalized.

Brittany Watts miscarried 22 weeks into her pregnancy in September. The 33-year-old woman went to her doctor, who told her she would miscarry — and she eventually did. Her pain and bleeding became so severe that she miscarried into her bathroom toilet and flushed. She took herself to a hospital with “life-threatening hemorrhaging,” in a nurse’s words.

Neither health care workers nor law enforcement officials dispute that Watts’ pregnancy loss was natural, and the coroner’s report determined that the fetus was uninjured. Yet, Watts is facing an abuse of corpse charge that has been in the hands of a Trumbull County, Ohio, grand jury since November.

“The grief of her loss, the fear and frustration of her arrest and prosecution, and the roller coaster of emotions resulting from the public spotlight on the most intimate details of what should have been a private affair are challenges Ms. Watts continues to face,” Watts’ attorney, Traci Timko, told Capital B in an email.

But some also say Watts’ case speaks to the history of how Black women’s bodies have been policed. From forced pregnancies during chattel slavery to Fannie Lou Hamer being sterilized without her consent and the misuse of Henrietta Lacks’ cells for experiments, Black women’s bodies have been subjected to the most surveillance. Yet, their concerns about their health have been ignored.

And as stricter abortion laws play out across the country, Watts’ case reveals the confusion about how to respond when a woman miscarries or has other pregnancy-related complications. Ohio’s abortion laws have been in a tug-of-war after the U.S. Supreme Court’s decision to reverse a nearly 50-year precedent that gave women the constitutional right to an abortion, reducing the amount of time a person has to receive an abortion from up to 22 weeks to six.

In Watts’ case, she didn’t take an abortion pill, illegal drugs, herbs or botanic medicinals — but according to the Associated Press, a city prosecutor told a municipal judge that Watts’ actions still broke the law. He said after she flushed the toilet following her miscarriage, she left home knowing it was clogged and “went on [with] her day.”

Back in September, hospital officials had to deliberate over the legalities of Watts’ case, Timko previously told the Associated Press. “It was the fear of, is this going to constitute an abortion and are we able to do that,” she said.

What does the law actually say?

Ohio’s “abuse of corpse” charge states: “No person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities.” Now, it will be up to the grand jury to determine whether the fetal remains Watts flushed are considered a human corpse.

“There is no law in Ohio that requires a mother suffering a miscarriage to bury or cremate those remains. Women miscarry into toilets every day,” Watts’ attorney told Capital B.

In fact, Timko says, Ohio lawmakers “created broad immunity to women for acts or omissions during pregnancy and has admonished that women should ‘in no case’ be criminalized for the circumstances or outcomes of their pregnancies.”

Almost every state has laws on the books related to abortion and fetal homicide, homicide-related charges for causing pregnancy loss. Roe v. Wade’s decision prevented them from being enforced against pregnant women. In 2019, New York and Illinois amended their fetal homicide laws to exclude a pregnant person, and Rhode Island repealed it all together.

What’s really at play?

According to a recent special report by If/When/How, Black and Hispanic women were already disproportionately criminalized for self-managing their pregnancies prior to the U.S. Supreme Court’s reversal last year.

The reproductive legal justice advocacy organization found that between 2000 and 2020, 61 individuals have been either criminally investigated, arrested, or convicted for ending their own pregnancy or helping somebody else do so. The 54 adults and seven minors were prosecuted in 26 states; 41 of those cases went forward with criminal charges, and 41% are people of color.

The majority of those cases happened in Texas, Ohio, Arkansas, South Carolina, and Virginia, according to the report from If/When/How, which also supports the defense of those charged with abortion-related crimes.

Miscarriage occurs in 10% to 20% of known pregnancies, regardless of race or socioeconomic status. Ruth Richardson, the CEO of Planned Parenthood North Central States, said that knowing those statistics, coupled with Black women’s higher risk of miscarriage, it’s extremely important post-Roe that systems across the board — health care, social workers, law enforcement, prosecutors — are educated on their unconscious biases that could influence their professional discretion.

“What we are seeing is the way that the system can kind of handpick who’s going to experience this over-surveillance, who’s going to be criminalized for their behavior, who’s going to be supported for their behavior,” Richardson said.

If Watts were to be indicted by the grand jury, it could set a troubling precedent for other women who naturally experience an abortion in the comfort of their home or may need medical care following a miscarriage, advocates say.

“Recognizing that miscarriage occurs very early in pregnancy, are we now saying that people need to maintain pads and tampons to try to prove something, for fear,” Richardson said, adding, “And also recognizing the fact that when someone is experiencing a miscarriage and then to be met with an investigation, this was cruel. What’s the end game here?”

Is this the first state to prosecute a woman for a miscarriage or stillbirth?

No. In 1999, South Carolina became the first state to prosecute an individual for homicide after birthing a stillborn baby after 20 weeks of pregnancy. Regina McKnight, a 22-year-old Black woman with a history of drug abuse, was sentenced to 12 years in prison for using crack cocaine while pregnant and causing the baby’s death.

After McKnight’s conviction in 2001, prosecutors told The New York Times that her case was an example to the public about using drugs while pregnant. Seven years into McKnight’s sentence, the state’s Supreme Court overturned her conviction because she did not receive a fair trial. The court ruled that McKnight’s defense attorney was ineffective because they didn’t present evidence to show that factors other than drugs contributed to the stillbirth.

What happens next for Watts?

Timko, Watts’ attorney, says she is “extremely grateful and empowered by the outpouring of support and for the countless messages she has received from around the world from women who have shared similar experiences.”

A GoFundMe launched on Dec. 7 and surpassed their $100,000 goal to support her legal fees, medical bills and trauma counseling.

The grand jury is expected to investigate Watts’ case into the new year.

Prosecutors have discretion on whether to pursue criminal charges.

The county prosecutor’s chief counsel, Diane L. Barber, wrote in an email to Capital B that their track record with grand juries landing indictments is historically about 80%. Implying that the chances of Watts getting indicted for the fifth-degree felony — that could put her in jail for up to a year — is possible.

Prior to being thrust into the national spotlight, Watts lived a quiet and private life, Timko said. But Watts hopes that her case will lead to change “so no other woman faces the horror of persecution and public scrutiny after such trauma.”

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