The case of a young, Black Ohio woman who experienced a miscarriage at 22 weeks into her pregnancy, and is now being charged with felony abuse of a corpse, is disturbing and angering to reproductive rights advocates and many health care professionals. It’s also a concern that they were bracing for since the overturning of Roe v. Wade.
“I think it’s important to know that this is not the first time that this has happened, that people have been charged with all kinds of different things when they have experienced a pregnancy loss,” says Grace Howard, an associate professor of justice studies at San Jose State University whose expertise is in reproductive law and politics, and the criminalization of pregnancy. “To me, (this case in Ohio) is cruel, it is counterproductive, and it also demonstrates a lack of knowledge, or misinformation, about pregnancy, broadly speaking.”
As someone who has worked as both an abortion and a birth doula, along with practical for those seeking an abortion, she says there are a number of ways these refusals to ister abortion care and miscarriage management intersect with reproductive justice work (a framework created by a group of Black women in 1994 to address “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities”). Howard, also the author of the forthcoming “The Pregnancy Police: Conceiving Crime, Arresting Personhood,” took some time to talk about this latest case, how race and socioeconomic status factor into the way a person is treated and charged, and better ways to respond to varying pregnancy outcomes. (This interview has been edited for length and clarity. )
Q: How does this framing we’re seeing to the loss of a pregnancy, to miscarriages, intersect with reproductive justice work?
A: In this case, we have someone who was trying to give birth to a child. This was a wanted pregnancy; she was planning on giving birth to the child, and it didn’t happen. It’s hard to put a finger on what causes a pregnancy loss. Sometimes, we just really don’t know and it’s completely out of anybody’s control what causes a pregnancy loss, but we do know that there are some patterns. And we know women of color are more likely to experience pregnancy loss and are also more likely to experience harm at the doctor’s office, obstetric harm. Or, if the do end up giving birth, are more likely to experience straight up obstetric violence and obstetric racism. It’s part of the reason why Black maternal mortality is so high. So, to see in this case a Black woman has experienced a pregnancy loss that they’re conceding isn’t her fault, is interesting. We don’t always do that. Sometimes, we just make it up, but we blame them for the loss. Now, she’s still ultimately being blamed for this outcome. Having products of conception outside of your body is the outcome of the miscarriage.
Mass incarceration is incompatible with reproductive justice because reproductive justice requires autonomy over our bodies. You don’t have that when you’re in state custody or when you’re being threatened with these kinds of punishments by the state. I also have to think about this case, in the context of what was legally happening with abortion in Ohio at this time. There was the six-week ban and that ban was ened by a judge, so they weren’t supposed to be exercising that ban, but health care providers were still nervous about providing miscarriage management for this woman in Ohio. It’s because of these scary legal threats that we’ve been seeing against health care providers. Then, we have state attorneys general investigating those health care providers, threatening criminal penalties. It’s really scary. Instead of doing miscarriage management, which in this case would have been an abortion — you remove the contents of the uterus, it’s an abortion — they sent her home, twice. A lot of people miscarry at home, a lot of people get sent home. If it’s not a complicated miscarriage, they’re sent to do it at home. They didn’t give her any instructions. How would she know if it was really, really, really important that she bring the products of conception back to the hospital? They would’ve told her that and they didn’t, even though they knew exactly what was going to happen, that she’s going to miscarry. I know there are so many levels of failure that have to happen, and I would suggest there are so many levels of disdain for birthing people, in particular for Black birthing people.
Q: Your forthcoming book, “The Pregnancy Police,” is an expansion of your 2019 article in the Harvard Law and Policy Review, “The Pregnancy Police: Surveillance, Regulation, and Control”? Can you talk about what you’ve learned about the criminalization of pregnant people and the outcomes of their pregnancies?
A: It’s kind of an expansion. In the book, I go really in depth on the criminalization piece. To do that, I analyzed over 1,000 arrest cases, some of which were hundreds of pages long. I interviewed prosecutors who were among the first in their state to, one might say, misuse the law to start making these kinds of arrests. Then, I also did a legal analysis: What does state law even say about pregnancy and crime?
Some things that I learned are that, and I think it’s really important for people to that 75 percent of the time, it’s your health care provider who calls the cops on you. Seventy-five percent of the time, the folks who get arrested and charged with crimes against their own pregnancy is because a doctor or nurse made a report. It’s usually folks who tested positive for drugs during pregnancy, but that’s not exclusively so. (I will say as a reminder that crack babies aren’t real. The science was totally wrong. There are way worse things for you during pregnancy than illegal drugs. I’m sure people will be like, ‘Oh yeah, that’s controversial,’ but it’s just true.) So, a lot of times it’s doctors and nurses who call the cops on you, and that’s terrible because even if you have no regard for the pregnant people, even if you think they’re terrible, even if you think they deserve to be punished and you only care about a healthy baby at the end of things, turning doctors and nurses into detectives does not help us get healthy babies. What it does do is it makes people afraid to go to the doctor and they don’t tell their health care providers information when they do go. In my own work, I just saw a lot of statements from people saying that they see way fewer pregnant people coming in now, but there are also some striking examples of people giving birth unattended in a motel room, or the case of a woman from Tennessee who was trying to flee the state while she was in labor so she could get to somewhere where her birth wouldn’t be considered a felony, and she ended up giving birth on the side of the highway. It’s a disincentive to getting prenatal care and we know that one of the best things that we can do for folks who are using drugs and pregnant is great prenatal care. That can make all the difference in the world in of her own health, and the health of her baby.
Q: Last year, the Center for Public Integrity reported on the potential for criminal charges because of loss of a pregnancy, with one advocate quoted as saying that many laws were being enforced contrary to their original intent. What is some of the general history behind some of these feticide laws and laws prohibiting abortions? And what was the original intent of those laws?
A: If a pregnant person is charged with feticide, most of the time, those laws are introduced in the context of violence against women. Here’s another terrible reality: Pregnancy is a risk factor for being murdered. A big one [according to a study from the National Institute of Child Health and Human Development]. We have these cases that pop up where it’s usually a White, middle-class (a “sympathetic”) pregnant person who is murdered and it’s usually by the father of the child. Sometimes, we have public outrage because maybe we can charge the murderer with killing the pregnant person, but we want to see some kind of recognition that this caused the loss of a wanted pregnancy. I understand where that is coming from. It’s hard losing a wanted pregnancy; but what we see happen is that even when these feticide laws saying nothing about charging the pregnant person, or even when they explicitly say you cannot use this law to punish a pregnant person, they use the law to punish a pregnant person every time. Not exclusively, but they do. It’s one of these interesting things that most of the people who get charged with these kinds of crimes don’t have a lot of resources to fight back. If they did, their good defense attorneys would be like, ‘This is bogus, this is easily thrown out,’ which it should be. Most of them don’t have that and they’re scared, so most of them take plea bargains. They plead guilty to things that they literally did not commit that offense.
Then, there’s a different and weirder thing that happens, and Alabama is a great example of this. Alabama didn’t have a feticide law, nothing on the books about feticide as a crime. Then, in 2006, they ed two laws: one of them is recognition of the fetus as a victim of third-party harm, like an abusive husband or boyfriend, not the pregnant person herself. Then, in that same year, they adopted a law called chemical endangerment of a minor. In the Southeast, they were having a kind of panic about meth and “White trash,” trailer park meth labs that, maybe, had kids in them. Sometimes, that’s a reality, but they were way overblowing the problem, so they ed this law that makes it a felony if you have a child in an environment where you are manufacturing drugs, using drugs, if you have drug paraphernalia — it’s pretty broad. That law says nothing about fetuses or pregnancy or anything. It’s about born children. As soon as it went into effect, a handful of prosecutors in the state started using it to punish pregnant drug s and they said the uterus is an environment, so they have a child in an environment where they’ve put drugs into their own body. It’s a really extreme interpretation, I would argue an unconstitutional one, but hundreds of people were arrested and charged with that crime and eventually, someone appealed. They were like, ‘That’s not what that crime is, what are you guys doing?’ and it went to the state Supreme Court and the state Supreme Court said, ‘You know what? You should totally use that law to punish pregnant people. Go for it.’ And they went further than any of the prosecutors had gone and they said, ‘You know what? This law should apply from the moment of conception and knowledge of pregnancy is irrelevant.’ I haven’t seen a prosecution on this basis, but you could be two hours pregnant and drink a glass of wine, and you are now a felony child ab. The earliest arrest I’ve seen under that law is someone who was six weeks pregnant, which means she just found out she’s pregnant and they arrested her, so she will probably be spending the rest of her pregnancy in jail. Not a great place for a healthy pregnancy.
Q: The woman in Ohio, who is Black, was reported to police by a nurse at the hospital where she was being treated. Pregnancy Justice (formerly National Advocates for Pregnant Women) has found that low-income women and women of color, especially Black women, are criminalized while pregnant at much higher rates. How is this surveillance and criminalizing of pregnant people informed by race and socioeconomic status?
A: We’ve been weird about race and pregnancy since this country was founded, to one of the first laws that was ed in the Virginia colony was all about whether or not the children born to enslaved women with White fathers would have a call for freedom or inheritance. The law was all about how they wouldn’t and that’s where we got started, so it’s not going to be good.
For poor people in the United States, and this is some very puritanical stuff, there’s an idea that if you’re poor, you’ve done something wrong. If you’re poor, it’s your fault. There’s also an idea that poor people don’t deserve to have children; if you can’t afford them, then don’t have them. Then, when you look at the intersection of race and poverty—because we make Black people poor in the United States [a 2022 study by Regina S. Baker in the American Journal of Sociology measures the way historical racism influences present-day poverty]—all of that gets magnified. There are assumptions about fitness; we assume that Black women are unfit mothers, we assume they don’t love their children. There’s the “welfare queen” myth, which will just not go away. There’s also the “crack mom-crack baby” myth, which are all bound up in the “welfare queen” myth, too. That, ‘You don’t love your children, you’re only having them to get money and now I have to pay for your kids with my tax money.’ That’s just ripe for disdain. We already hated people, now let’s just pile on.
Then, when you add in the systems that we have in place, both in of mass incarceration and policing, and also in of our very limited welfare apparatus, if you are poor (and Black people are disproportionately poor) you are just more likely to be getting surveilled by the government. You have to interact with government agencies for anything and sometimes they want to check out your stuff. So, even though I know there are plenty of middle-class and rich White ladies with babies who do drugs, they’re just not going to get caught doing it. Even talking to health care providers, doctors, when a lot of doctors in private practice will say, ‘Oh, if I drug tested my patients and reported them, I wouldn’t have a practice.’ But you talk to a lot of folks where it’s a hospital where they accept government insurance, these are folks that we’re going to drug test. Being able to access private services is like a little invisibility cloak, in some ways. Then, you add on the lens of racism and classism that we read everything through, this hatred factor, and that definitely plays a role.
Q: From your perspective, what is the appropriate response to these pregnancy outcomes? From people like the nurse in Ohio, to the general public? What are some of the best ways to educate ourselves in order to form educated opinions and informed decisions about how to treat pregnant people?
A: One of the best things that we can do is mind our own business. People who are pregnant were people before they were pregnant, and they will be people after they’re pregnant, and they are, indeed, people while they are pregnant. So, to the extent that pregnancy makes a person more vulnerable to all kinds of things, they need more and not less — they need more services, they need more protection, they need more freedom; not surveillance, not disdain, not control. Some of this has to be a profound attitude shift that we have. We know most of this stuff is about pregnancy and drug use and we’re not doing any of the things that we know help. We need to that people who are experiencing substance use disorder almost always have experienced trauma and they’re self-medicating. It turns out that locking them up doesn’t really help with that, so evidence-based treatment, we need to dramatically expand health care services and we need those services to be culturally competent. We need to screen out the racist doctors and nurses and redo a lot of things about the way we train our health care providers. We really need to emphasize that this is not ethical behavior for health care providers to be calling the cops because bad things will happen to their patients and they have a duty to protect their patients.
Q: Are they mandated to call the authorities in these kinds of situations?
A: They are mandated reporters, but you’re only mandated to report if somebody is an imminent threat to themselves or others. Unless you’re interpreting the fetus as a child, and you are legally required to report child abuse, then no. In fact, you should get in trouble. This is a huge privacy violation. This is my next project, to talk to the hospitals and I want to talk to the health care providers to see who is telling you this? Is this a hospital policy? Are y’all just making it up as you go, which is very possible. Is this coming from somewhere higher up? I have to imagine that some people are not OK with it at all. They’re not really supposed to do this.
I will say this also, and this is something I really want doctors and nurses to know: I have not seen a single case where a health care provider got in trouble for not reporting a pregnant patient, so if you are someone who was being compelled to do this and you don’t want to, maybe just don’t.
