Cary Aspinwall of The Marshall Project writes:
In late March, police in southern Georgia arrested
a 24-year-old woman who had a miscarriage after a witness reported
seeing her place the fetal remains in a dumpster.
The coroner in Tift County determined it
was a 19-week fetus from a naturally occurring miscarriage, but some
legal experts consider the arrest a bellwether for the criminal suspicion that
surrounds pregnancy loss in many states in post-Roe America.
The Marshall Project previously examined how
the way a person handles a pregnancy loss — and where it occurs — can
mean the difference between a private medical issue and a criminal charge.
Nationally, federal data shows that about 20% of pregnancies
end in a loss, but only a small number are investigated as crimes. In several
states, a positive drug test after a pregnancy loss can result in criminal
charges for the mother, and even prison time.
Prosecutions related to pregnancy appear to have increased
since the Supreme Court decision that overturned Roe v. Wade in 2022, according
to Pregnancy Justice, a nonprofit that advocates for the legal rights of
pregnant people. In the first year after the Dobbs decision — from June 2022 to
June 2023 — there were at least 210 pregnancy-related prosecutions, researchers
for the group found.
Here are some states where miscarriages and stillbirths have
been investigated by the criminal legal system in recent years:
Alabama
Alabama has a broad “chemical endangerment of a child” law
allowing prosecutors to charge someone for drug use during any part of a
pregnancy, whether the mother delivers a stillborn
fetus or a healthy
newborn.
Our 2022
investigation with AL.com found that more than 20 women had been
prosecuted after a miscarriage or stillbirth in Alabama. Some of the harshest
sentences resulted in cases where a fetus was stillborn and the woman went to
trial.
The Pregnancy
Justice report examining nationwide prosecutions related to conduct
associated with pregnancy, pregnancy loss or birth in the first year after the
Dobbs ruling found that nearly half of the cases came
from Alabama.
Arkansas
Arkansas is among several states that still make it a crime
to “conceal”
a birth or stillbirth. Such laws date back to the 17th century, and were
intended to shame and accuse women of crimes if they were pregnant and
unmarried.
In 2015, Annie
Bynum walked into a hospital with a plastic bag containing the remains
of her stillborn fetus and ended up going to jail — and eventually prison. She
was accused under the concealment law.
A jury originally convicted and sentenced Bynum to six years
in prison. Later, an appeals
court ruled that the jury shouldn’t have been allowed to hear evidence
that Bynum ingested medications to induce labor before the stillbirth or had
previously had abortions — because the charge was that she had concealed the
pregnancy, not tried to end it. While pregnant, Bynum had planned to quietly
let a friend adopt the baby, and she eventually pleaded guilty to a legal
violation for the attempted adoption.
California
In 2022, the state passed a law banning investigations and
prosecutions of pregnancy loss.
But prior to that law, at least two California women
had already
served time in jail and prison for stillbirths that prosecutors had
alleged were related to drug use.
Adora
Perez had served nearly four years of an 11-year sentence before a
judge ruled her plea agreement — to a charge of voluntary manslaughter of a
fetus — was unlawful,
and overturned her conviction in 2022.
That only happened after the case of then-26-year-old
Chelsea Becker garnered international outrage. Becker was charged with
“murder of a human fetus” in 2019, but the case was dismissed
in 2021 and led to Perez’s case getting a second look. Anger about the
prosecutions of both women led
to the change in state law, to avoid punishing “people who suffer the
loss of their pregnancy.”
Georgia
At least one woman who had a miscarriage has been arrested
under a state law that makes it a crime to conceal a dead body, punishable
by up to 10 years in prison.
On March 20, police in Tifton, Georgia, issued a press
release announcing that a dead fetus had been found in a dumpster at
an apartment complex, after an ambulance was called for a woman who was found
bleeding and unconscious. The next day, the Tifton Police Department announced
it had arrested the woman who miscarried that fetus, accusing her of one count
of concealing the death of another person and one count of abandonment of a
dead body.
On April 4, Tift County District Attorney Patrick Warren
announced that his office was
dropping charges against the woman. His office determined that neither
charge was applicable to her case under Georgia law, because a medical examiner
determined the woman had a naturally occurring miscarriage.
Ohio
Ohio’s abuse
of a corpse law allows a fairly broad interpretation, if applied to
fetal remains: “No person, except as authorized by law, shall treat a human
corpse in a way that would outrage reasonable community sensibilities.”
In 2023 in Warren, Ohio, Brittany Watts was
arrested and charged with abuse of a corpse after experiencing a
miscarriage at home in her toilet. She had been to a hospital prior to her
miscarriage but left when she felt she was getting inadequate treatment,
according to news reports. When she went back to the hospital after her miscarriage,
a nurse called police and reported that Watts had given birth at home and did
not want the baby — an assertion Watts’ lawyer denied. A grand jury declined
to move forward with the criminal case in 2024.
Earlier this year, Watts filed
a lawsuit in federal court alleging medical professionals conspired
with a police officer to fabricate criminal charges against her.
Oklahoma
Criminal charges related to drug use while pregnant — in
cases of pregnancy
loss or infants born
healthy — have become increasingly common in recent years in
Oklahoma.
Kathryn Green gave birth to a stillborn baby in Enid,
Oklahoma, in 2017. She was struggling with meth addiction at the time and
scared. She cleaned her
stillborn son’s body, wrapped him in a blanket and put him in a box.
Police later found the remains in the trash and arrested her. Prosecutors
initially charged her with second-degree murder, alleging that the stillbirth
happened because of “meth toxicity.” But medical tests later showed otherwise:
Green’s stillborn son had an infection that had caused his death, records show.
In 2022, Green decided to enter an Alford plea — a guilty
plea in which the defendant maintains innocence. At her sentencing hearing, a
judge said he wasn’t convinced that prosecutors had proven Green willfully and
knowingly harmed her baby by using methamphetamine while pregnant, but he was
bothered by her “lack of maternal instinct.”
South Carolina
South Carolina was the first
state to prosecute a woman for a stillbirth allegedly due to drug use.
In 2001, Regina McKnight was sentenced to 12 years in prison for giving birth
to a stillborn baby who tested positive for cocaine. McKnight served eight
years before the state Supreme Court overturned
her conviction, in part because her trial lawyer didn’t present witnesses
to challenge prosecutors’ claim that her drug use definitively caused the
stillbirth.
The state charged at
least 200 women between 2006 and 2021 with unlawful neglect of a child
or homicide by child abuse for alleged perinatal drug use.
In March 2023, a college student in Orangeburg, South
Carolina, named Amari Marsh went from miscarrying a fetus in her bathroom to
being investigated for a homicide. She told investigators she didn’t realize
she was pregnant until she went to an ER with severe pain. She left the
hospital and miscarried later in a toilet at home (which medical experts say is
common). Her boyfriend at the time called 911. Police became suspicious that
she may have sought to end the pregnancy or not called 911 fast enough, records
show. She was jailed and accused of homicide by child abuse — before the fetus
was autopsied.
An autopsy showed later that the fetus died of natural
causes due to an infection that Marsh was unaware of, her
lawyer said. In South Carolina, police can arrest someone on a criminal
complaint without approval from local prosecutors (called solicitors). After a
grand jury reviewed all of the evidence in the case, the charges against Marsh
were dismissed.
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