Brittany Watts speaks to supporters gathered in Ohio last year. In a federal lawsuit, she says she was improperly charged with a felony after managing a miscarriage at home. (AP Photo/Sue Ogrocki)
State laws criminalizing abortion since the end of Roe v. Wade in 2022 often make clear that medical providers — not patients — can face charges for terminating a pregnancy.
But two law professors researching pregnancy-related prosecutions in the post-Roe era say they have uncovered at least 22 cases of individuals charged in connection with their own pregnancy loss.
Rather than face prosecution under an abortion statute, the patients have largely faced homicide, abuse of a corpse or similar charges based on allegations that their conduct contributed to the demise of their fetus or infant, usually after a miscarriage or stillbirth attracted suspicion, the professors say.
The 22 charges — all filed in the first year after the Dobbs decision overturned Roe on June 24, 2022 — are a subset of the prosecutions being tracked by law professors Wendy Bach of University of Tennessee College of Law and Madalyn Wasilczuk of the University of South Carolina Joseph F. Rice School of Law.
But they show patients, not just abortion providers, are attracting the attention of prosecutors, the professors say.
"It's a significant number of women around the country facing extraordinarily serious charges. These are not little crimes. These are very serious felonies," Bach told Law360.
Wasilczuk said the numbers can't be easily compared with the pre-Dobbs era because no similarly comprehensive study was undertaken before the end of Roe.
"But one thing that we suspect is that miscarriage and stillbirth — pregnancy loss in general — are being sort of treated more suspiciously in this climate," she said.
The prosecutions also illustrate the emerging legal battles over the concept of fetal personhood — that a fetus has rights similar to a child, allowing a prosecutor to charge someone with, say, child abuse if they take drugs while pregnant, experts say.
Mary Ziegler — a law professor at the University of California, Davis School of Law and an expert in the law, politics and history of reproductive healthcare — said some prosecutors may see cases against a patient as a way to advance the broader movement toward fetal rights.
"Each of these prosecutions can be kind of like a brick in the wall toward the recognition of fetal personhood," Ziegler said, "as opposed to just some sort of isolated incident where they think somebody did something wrong."
Not everyone sees it that way.
Phillip Kline, a law professor at Liberty University School of Law and former Kansas attorney general, said prosecutors' approach hasn't changed much since Dobbs.
Even under Roe, some abortion restrictions were legal, and it was providers or other people — not the patient — who faced charges when appropriate, he said. A rare exception, he said, could involve a woman who had a live birth and discarded the child afterward.
"I think it's a red herring to say that women face prosecution," Kline said.
'Emotionally Distraught'
Patients who face police scrutiny after a miscarriage say it can compound their grief.
In a federal lawsuit, Ohio nursing student Brittany Watts said she sought hospital care in late 2023 after a nightmarish miscarriage at home — only to find herself interrogated by police as she lay in a hospital bed, hooked to IVs.
She was about 21 weeks along when she had pain and bleeding a few days before the miscarriage. She went to the hospital off and on before returning home, frustrated that she wasn't receiving the care she needed, according to the lawsuit.
Watts awoke in pain the morning of Sept. 22, 2023, but made it to the bathroom, where she had what felt like a painful bowel movement. The toilet bowel was full of tissue, blood and blood cots.
She tried to clean up and returned to the hospital.
Confused and in pain, her account of what had happened in her bathroom — she saw a bloody mess of tissue but no intact fetus – drew unjustified scrutiny from hospital and law enforcement personnel, according to the suit.
Watts contended she was in no condition to face questions from police and needed time to grieve.
"She was disoriented, trapped, traumatized, and emotionally distraught, making her vulnerable to police influence and emotional distress," she said in her lawsuit.
Watts was later arrested at home and charged with abuse of a corpse, a felony.
The case was dropped after a grand jury declined to indict her, finding no probable cause to support the criminal charge.
Watts sued police and hospital personnel this year in the Northern District of Ohio, alleging violations of her constitutional rights and illegal sharing of confidential medical information.
An autopsy confirmed the fetus died in utero, according to the lawsuit.
The defendants have denied wrongdoing. In court filings, they said that police responded to a report of a home birth amid questions of whether a baby was born alive, and that Watts had left the hospital against advice in the days before the miscarriage.
Tracking Cases
Pregnancy loss is common. About 10% to 20% of known pregnancies end in miscarriage. And stillbirths — the death of a fetus after 20 weeks of pregnancy — account for about 0.6% of births, according to the Cleveland Clinic.
Police scrutiny of how patients handle their medical emergencies may be growing.
Bach and Wasilczuk's research was published last year in a preliminary report by Pregnancy Justice, an advocacy group supporting abortion rights and the rights of pregnant people.
The goal was to document pregnancy criminalization following the U.S. Supreme Court's decision in Dobbs, which overturned Roe and found no federal right to abortion, sending the issue back to the states. The case was decided three years ago this week.
Bach and Wasilczuk tracked 210 cases altogether in the first year after Dobbs — prosecutions in which individuals were charged in connection with their own pregnancy, pregnancy loss or birth.
The majority of the charges center on the consumption of drugs, alcohol or similar substances while pregnant.
But 22 cases involved the demise of a fetus or infant. That includes circumstances in which prosecutors say the pregnant person did something that caused a miscarriage or stillbirth.
Some of the cases also touch on allegations of mishandling human remains or involve a birth outside a hospital setting, with a dispute over whether an infant was born alive or stillborn.
"Some of these are a miscarriage or stillbirth that the state has decided are, in some way, suspicious," Wasilczuk said.
The specific case details are shielded by the research protocol approved by the University of Tennessee, where Bach teaches law and is co-director of the Appalachian Justice Research Center.
The findings released last year are preliminary, and the two professors are still conducting research with plans for follow-up reports.
Karen Thompson, legal director at Pregnancy Justice, said the numbers in last year's report are almost certainly an undercount, given the challenges of tracking cases all over the country in a limited amount of time. Many don't otherwise attract attention.
"We're dealing with people who are very desperately trying to avoid the possibility of incarceration, of being separated from their families by the family policing system," Thompson said.
The professors' initial report already has the attention of experts watching the political and legal landscapes of abortion.
Ziegler of UC Davis said 22 cases connected to fetal or infant demise may sound like a low number, but it's revealing, given prosecutors' historic reluctance to charge a patient rather than a provider.
Under Roe, she said, pregnancy-related prosecutions generally focused on substance use, and they often targeted people of color who were relatively poor.
"Since then, the universe of people who are getting prosecuted has expanded, and the offenses for which they're getting prosecuted have expanded too," Ziegler said. "It's been gradual, but I think the trend has been toward more people being punished for more things related to pregnancy."
Kline, the former Kansas attorney general, disputed that Dobbs has had much impact on the criminal prosecutions of pregnant women. Providers, he said, are the ones at risk.
In Texas, for example, doctors face the prospect of losing their medical license or being sentenced to life in prison for violating an anti-abortion law. But the statute cannot be used to prosecute the patient who obtained the abortion.
Kline said it makes sense for providers to face the most risk under state laws given that they are likely to have a greater understanding of their legal responsibilities and are paid for their work.
But even then, prosecutors will use their discretion, as they do in all kinds of cases.
"In all states, a prosecutor with discretion — if there's a violation of the law — will be looking at how severe was the wrongful intent?" Kline said.
That assessment, he said, "would generally lead one to make charging decisions that would charge the provider and not the woman."
Emerging Legal Questions
The prosecution of patients after a pregnancy loss may intensify legal conflicts centering on fetal rights and the privacy of patients in hospital settings.
The doctrine of fetal personhood has been gaining traction in state law, grabbing particular attention last year when the Alabama Supreme Court found that frozen embryos count as children and are covered by a wrongful death statute.
The concept recognizes the rights of a fetus, including from the moment of conception, as similar or equivalent to those of a child. It has surfaced in legislative debates in Nebraska and other states.
"There are a whole bunch of these laws that refer to some aspect of fetal rights or fetal personhood that are looming out there," Ziegler said. "And exactly how much and how they're going to be enforced isn't clear."
Thompson, of Pregnancy Justice, called fetal personhood an unusual legal concept.
"There is no other circumstance where behavior that is completely legal in every other context becomes illegal simply because of a change in your physical state," she said.
The privacy of pregnant patients may also trigger legal conflicts.
Medical providers, for example, have obligations to report child abuse. But federal law also shields sensitive patient information under the Health Insurance Portability and Accountability Act, albeit with certain exceptions for law enforcement.
Wasilczuk said information provided by medical personnel often turns up in criminal complaints and police affidavits.
"One thing that we see in many of these cases is that hospital personnel's interactions with police and law enforcement are so common that they don't seem to always be thinking about where their reporting obligations end and where they are sort of going above and beyond those, and providing information without a subpoena, without a warrant, that really should be protected health information," Wasilczuk said.
Bach said that pulling healthcare providers into police work raises legal questions that surface in criminal prosecutions, such as protections against unreasonable searches and self-incrimination.
"I think that there are strong arguments that in certain circumstances, medical providers are either willingly or being forced to act as agents for police in an investigative role, in which case, the Constitution applies," she said. "The Fourth Amendment applies. The Fifth Amendment applies."
Hospitals should "have procedures and back your people up so that they can protect the privacy of their patients," Bach said.
Kline, for his part, said he doesn't believe the privacy concerns are valid. Prosecutors routinely interact with medical providers in all kinds of cases and have processes for issuing subpoenas, requesting records and shielding patients' confidential information.
"HIPAA provides an exception for law enforcement," he said, "and law enforcement uses medical records in virtually every prosecution of any crime that involves an impact on a human body. Every murder, every rape, everything — we use medical records to put together the case."
In addition, Kline said, prosecutors investigating an abortion are going to be focused on the provider, not the patient.
'Criminal Lens'
One take-away message from their research, Bach and Wasilczuk say, is that pregnant patients are sometimes targeted for prosecution, even if the charges aren't directly brought under an anti-abortion law.
Wasilczuk noted the comments of a West Virginia prosecutor who said this year that women could help protect themselves from prosecution — for, say, improperly disposing of human remains — by reporting their miscarriages to law enforcement.
"The idea that miscarriage is suspicious in itself is, I think, somewhat of a product of this post-Dobbs climate," Wasilczuk said.
Bach agreed, saying the idea "that pregnancy is something to scrutinize from a criminal lens, I think Dobbs contributed to that overall legal and cultural phenomenon."
For Thompson of Pregnancy Justice, the message is clear.
"No matter how your pregnancy ends, the point is, you should not be exposed to criminal liability for that end," she said.
--Additional reporting by Theresa Schliep, Cara Bayles and Hannah Albarazi. Editing by Orlando Lorenzo and Lakshna Mehta.
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