Weaponizing the Law to Punish People for Miscarriage

It’s time to abolish the pregnancy police.

The check-in window at the Hope Medical Group for Women in Shreveport, La., on April 19, 2022. Today, the clinic is closed, since abortion is completely banned in Louisiana, thanks to a trigger law that took effect when Roe fell. Now that the Supreme Court has stripped away the constitutional right to abortion, legal experts expect that prosecutions may continue to increase. (François Picard / AFP via Getty Images)

In October, an Ohio woman was charged with a felony after her miscarriage. On Nov. 30, her case was bound over to a grand jury. This is part of a larger trend of prosecutors and judges weaponizing the law to punish and control pregnant people.

The 33-year-old Black woman (name omitted for privacy) was 22 weeks pregnant and was carrying a nonviable fetus after her water broke prematurely. She miscarried the pregnancy while sitting on the toilet in her home, and the fetal remains clogged the toilet. The assistant prosecutor in the case told reporters why he was pursuing charges: “It’s the fact that the baby was put into a toilet […] and left in that toilet and she went on [with] her day.” Importantly, the Ohio “abuse of a corpse” law does not mention pregnancy, embryos or fetuses.

Miscarriage is common. Among people who knew they were pregnant, miscarriage occurs in about 10-20 percent of pregnancies. Miscarriage rates are even higher for people who didn’t know they were pregnant. Despite the reality that many people share this experience, miscarriage is seldom discussed and is shrouded in secrecy. 

As a former birth and abortion doula, and as a scholar who has studied the criminalization of pregnancy for over a decade, I know that the Ohio woman’s miscarriage was ordinary. Miscarriage often occurs while sitting on the toilet, as the sensation of having a miscarriage can feel like a bowel movement and may be accompanied by leaking fluid. Flushing the toilet afterward is a common (and sometimes muscle memory-automatic) next move. Sometimes people bring fetal remains to the hospital for examination. People also commonly bury fetal remains on their own property.

Some may find the facts surrounding this miscarriage disturbing. Maybe we expect more reverence for fetal remains, or demand a particular emotional response from people who have experienced a miscarriage. It is telling that we often use the words “suffered a miscarriage,” to describe their occurrence, when indeed, it is normal to experience a broad range of emotions in response to a miscarriage from deep sorrow to relief or even happiness. 

Ohio law does not dictate what people must do with the products of conception after having a miscarriage. According to vagueness doctrine, people should only be charged with crimes that are clearly stated in the criminal code. To do otherwise is considered unconstitutional. If having a miscarriage, or improperly disposing of the products of conception, are going to be considered crimes, they need to be explicitly spelled out as crimes. 

As I explore in my book, forthcoming with University of California Press, The Pregnancy Police: Conceiving Crime, Arresting Personhood,  prosecutors and judges in criminal cases sometimes use their power to interpret the law in dramatic and extreme ways, essentially creating a separate and lesser legal standard for pregnant people, independent of the legislatures. They often target already marginalized people who lack the resources to fight back, instead pleading guilty to charges that were never applicable in the first place. The Ohio case may be shocking, but it is not anomalous.

Kate Cox was 20 weeks pregnant with a fetus diagnosed with trisomy 18 … Who knows what legal consequences she might have faced, had she miscarried at home.

Since the Roe decision in 1973, at least 1,809 people have been charged with crimes against their own pregnancies with little to no legal justification, including for having miscarriages or stillbirths, in nearly every U.S. state.          

The Pregnancy Police: Conceiving Crime, Arresting Personhood (June 2024) by Grace E. Howard.

Formal criminalization of miscarriage and disposal of products of conception would avoid the problem of vagueness, but introduces new problems.

When in pregnancy would a law become applicable? At “viability”? What if a fetus is of a viable age, but is not actually viable, as was true in the Ohio case? At conception?

Would knowledge of the pregnancy be relevant? Many people experience miscarriages without even realizing they were pregnant to begin with, thinking instead that they just have a late period. If this was the legal standard, avoiding criminal charges would require a proactive collection and delivery of used menstrual products and toilet tissue for any fertile person who has vaginal sexual intercourse, to avoid accidental disposal of products of conception.

Formal criminalization of miscarriage and disposal of products of conception would open another worrisome door as well: fetal (or embryonic) personhood enshrined in law. 

A legal system that recognizes fetal personhood punishes people for their pregnancy outcomes and strips them of their rights in the name of protecting the fetus. One striking recent example comes from Texas, where on Monday the state Supreme Court ruled that a woman could not have an emergency, life-saving abortion. Kate Cox was 20 weeks pregnant with a fetus diagnosed with trisomy 18, a condition that often results in miscarriage and that is incompatible with survival at birth. After a chaotic series of court rulings, and several trips to the emergency room, Cox was ultimately forced to flee the state to access the care that she needed. Who knows what legal consequences she might have faced, had she miscarried at home.

Miscarriage is normal. Subjecting people who have miscarriages to criminal punishment is needlessly cruel, counterproductive, and relies on a legal understanding that pregnant people are a lesser class of person. We should push for the charges against the woman in Ohio, and in all miscarriage cases, to be dropped, and abolish the pregnancy police.

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Grace E. Howard is an associate professor of justice studies at San José State University and a public voices fellow with The OpEd Project.