February 20, 2024

A Black woman was criminally charged after a miscarriage. It shows the perils of pregnancy post-Roe

5 min read

by JULIE CARR SMYTH Associated Press

Ohio was in the throes of a bitter debate over abortion rights this fall when Brittany Watts, 21 weeks and 5 days pregnant, began passing thick blood clots.

The 33-year-old Watts, who had not shared the news of her pregnancy even with her family, made her first prenatal visit to a doctor’s office behind Mercy Health-St. Joseph’s Hospital in Warren, a working-class city about 60 miles (100 kilometers) southeast of Cleveland.

The doctor said that, while a fetal heartbeat was still present, Watts’ water had broken prematurely and the fetus she was carrying would not survive. He advised heading to the hospital to have her labor induced, so she could have what amounted to an abortion to deliver the nonviable fetus. Otherwise, she would face “significant risk” of death, records of her case show.

That was a Tuesday in September. What followed was a harrowing three days entailing: multiple trips to the hospital; Watts miscarrying into, and then flushing and plunging, a toilet at her home; a police investigation of those actions; and Watts, who is Black, being charged with abuse of a corpse. That’s a fifth-degree felony punishable by up to a year in prison and a $2,500 fine.

Her case was sent last month to a grand jury. It has touched off a national firestorm over the treatment of pregnant women, and especially Black women, in the aftermath of the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade.

Civil rights attorney Benjamin Crump elevated Watts’ plight in a post to X, formerly Twitter.

Michele Goodwin, a law professor at the University of California, Irvine, and author of “Policing The Womb,” said the case follows a pattern of women’s pregnancies being criminalized against them. She said those efforts have long overwhelmingly targeted Black and brown women.

Even before Roe was overturned, studies show that Black women who visited hospitals for prenatal care were 10 times more likely than white women to have child protective services and law enforcement called on them, even when their cases were similar, she said.

“Post-Dobbs, what we see is kind of a wild, wild West,” said Goodwin. “You see this kind of muscle-flexing by district attorneys and prosecutors wanting to show that they are going to be vigilant, they’re going to take down women who violate the ethos coming out of the state’s legislature.”

She called Black women “canaries in the coal mine” for the “hyper-vigilant type of policing” women of all races might expect from the nation’s network of health-care providers, law enforcers and courts now that abortion isn’t federally protected.

At the time of Watts’ miscarriage, abortion was legal in Ohio through 21 weeks, six days of pregnancy. Her lawyer, Traci Timko, said Watts sat for eight hours at Mercy Health-St. Joseph’s awaiting care on the eve of her pregnancy reaching 22 weeks, before leaving without being treated.

Timko said hospital officials had been deliberating over the legalities.

“It was the fear of, is this going to constitute an abortion and are we able to do that,” Timko said. The hospital didn’t return calls seeking confirmation and comment.

But B. Jessie Hill, a law professor at Case Western Reserve University School of Law, said the hospital was in a bind.

“These are the razor’s edge decisions that health care providers are being forced to make,” she said. “And all the incentives are pushing hospitals to be conservative, because on the other side of this is criminal liability.”

Warren Assistant Prosecutor Lewis Guarnieri told Warren Municipal Court Judge Terry Ivanchak during Watts’ preliminary hearing that she left home for a hair appointment after miscarrying, leaving the toilet clogged. Police would later find the fetus wedged in the pipes.

“The issue isn’t how the child died, when the child died,” Guarnieri told the judge, according to TV station WKBN. “It’s the fact the baby was put into a toilet, was large enough to clog up the toilet, left in that toilet, and she went on (with) her day.”

In court, Timko bristled.

“This 33-year-old girl with no criminal record is demonized for something that goes on every day,” she said.

The size and stage of development of Watts’ fetus became an issue during her preliminary hearing.

At the time, vigorous campaigning over Issue 1, an ultimately successful amendment to enshrine a right to abortion in Ohio’s constitution, included ads alleging the amendment would allow abortions “until birth.”

A county forensic investigator reported feeling “what appeared to be a small foot with toes” inside Watts’ toilet. Police seized the toilet and broke it apart to retrieve the intact fetus as evidence. An autopsy confirmed that the fetus died in utero before passing through the birth canal and identified “no recent injuries.”

The judge acknowledged the case’s complexities when he bound the case over to the grand jury.

“There are better scholars than I am to determine the exact legal status of this fetus, corpse, body, birthing tissue, whatever it is,” he said from the bench.

Assistant Trumbull County Prosecutor Diane Barber, lead prosecutor on Watts’ case, could not speak specifically about the case, other than to note the county is compelled to move forward with it. She doesn’t expect a grand jury finding this month.

Timko, a former prosecutor, said Ohio’s abuse-of-corpse statute is vague.

“From a legal perspective, there’s no definition of ‘corpse,’” she said. “Can you be a corpse if you never took a breath?”

Grace Howard, assistant justice studies professor at San José State University, said clarity on what about Watts’ behavior constituted a crime is essential.

“Her miscarriage was entirely ordinary,” she said. “So I just want to know what (the prosecutor) thinks she 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.”

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