The increasing risk of criminal charges for women who experience a miscarriage

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• Amna Nawaz:

  The case of an Ohio woman has garnered national attention after she had a miscarriage and now faces criminal charges; 34-year-old Brittany Watts was 22 weeks pregnant, and her pregnancy had been deemed nonviable just days earlier, when she miscarried in the bathroom of her home in September of 2023.

  Two weeks later, she was arrested on charges of felony abuse of a corpse for how she handled the remains. If found guilty, she faces up to a year in prison.

  Joining me now is Mary Ziegler, a law professor at the University of California, Davis. Her most recent book is called "Roe: The History of a National Obsession."

  Mary, welcome back, and thanks for joining us.

  Help us understand this charge, abuse of a corpse. What are prosecutors accusing Brittany Watts of exactly?

  Mary Ziegler, University of California, Davis: Abuse of corpse charges are from very old laws that almost never apply in this circumstance, right?

  So, if you think about abuse of a corpse, you're thinking of people mistreating remains for medical experimentation, or you're thinking of people, after a homicide, dismembering bodies to hide the crime. This almost never would be a charge you would see applied in a miscarriage case.

  So, essentially, I think what prosecutors are faulting Brittany Watts for is not grieving in the way they thought was appropriate following her miscarriage. Essentially, they're faulting her for the way she disposed of the fetal remains and the way she behaved after she did that.

• Amna Nawaz:

  We should note miscarriages this late in a pregnancy are rare. Most occur in the first trimester, but up to 30 percent of all pregnancies do end in a miscarriage.

  In Ohio or anywhere else, are there laws around this in terms of how you should be handling that miscarriage or reporting that miscarriage?

• Mary Ziegler:

  No.

  I mean, so if you are pregnant and you're looking for guidance about what to do when you experience a miscarriage, the only information you're likely to find is what you should do to protect your own health, essentially, when you should seek medical attention, when you may be experiencing a complication versus when you can handle whatever's happening at home.

  There's no kind of how-to guide about what you should do if you experience a miscarriage at home. So it's also, I think, unusual for prosecutors to be holding Brittany Watts to a standard that wasn't written down anywhere when she made the choices she did.

• Amna Nawaz:

  So critics have looked at this case and said this represents a criminalization of pregnancy we have seen an increase in over the years.

  Do you agree with that? Have we been seeing that trend?

• Mary Ziegler:

  We have.

  And I think Brittany Watts' case is remarkable in a couple of ways. There's a history, as the group Pregnancy Justice has documented, of laws criminalizing the actions of pregnant patients, particularly usually actions that were taken by low-income people, people of color, particularly substance abuse, sometimes of illegal drugs, sometimes of legal drugs like alcohol.

  You almost never, or, to my knowledge, never see a prosecution of someone like Brittany Watts. Everyone has conceded that this pregnancy was already nonviable when the actions she took that have led to charges began. So this is, I think, both a continuation of a trend, but also an acceleration of a trend. This is something we haven't seen much before.

• Amna Nawaz:

  That group you mentioned is an advocacy group, Pregnancy Justice.

  In their last year's report, they found there were more than 1,300 cases where pregnancy, including pregnancy loss, was used in a criminal investigation or prosecution. That was from 2006 to June of 2022, the month that Roe v. Wade was overturned.

  Tell me about what we have seen since then. Where do these kinds of prosecutions fit into the larger effort to further roll back abortion access?

• Mary Ziegler:

  The U.S. anti-abortion movement's goal from its — really since the 1960s onward has been not just the undoing of a right to choose abortion, but the recognition of a fetus or an unborn child as a rights-holding person.

  And in pursuit of that goal, they have sought to write this idea of a fetus as a rights-holding person into as many areas of law as possible. The ultimate goal here is essentially to make the law of abortion, which doesn't treat a fetus as a rights-holding person, or the law of the Constitution, the interpretation of the Constitution that doesn't treat a fetus as a rights-holding person, an outlier, right, to make it weirder and weirder to say, well, this fetus doesn't have constitutional rights, but we treat it as a person for the purposes of abusing a corpse.

  We treat it as a person for the purposes of fetal homicide law, or wrongful death law, or intestacy law, to sort of put incremental pressure on a conservative Supreme Court to move toward the recognition of personhood. So this is very much playing the long game. This is not a movement that thinks it's going to get the recognition of fetal personhood through Congress or through the Supreme Court in the near term.

  But it's worth remembering, of course, that it took 50 years to undo Roe v. Wade. So I think this, in some ways, for the anti-abortion movement is the new Roe v. Wade. It's the next 50 years.

• Amna Nawaz:

  While we have you, I would like to ask you about the latest news we have on this battle over abortion bans.

  The Supreme Court late last week allowed Idaho to continue to enforce its near-total abortion ban. The court is going to hear the case in their April session. But from what you have seen in other states in terms of women traveling out of state or having to file legal cases to challenge for the right to terminate pregnancies, what do you expect to see? What's the impact on the ground in Idaho?

• Mary Ziegler:

  Well, what we're seeing, I think, in Idaho is likely to be of the most serious import for people experiencing complications in wanted pregnancies, people who may have been able to fit in under the kind of understanding of a medical emergency that the Biden administration has championed under this federal law, the Emergency Medical Treatment and Labor Act, but who may not under Idaho's law.

  I think it's also likely to have an effect on physicians, who are not going to want to risk the kind of criminal consequences that Idaho's law authorizes for making the wrong decision. It's not unlikely that we will see the Supreme Court maybe uphold this law or at least reject the Biden administration's interpretation of federal law and permit Idaho's interpretation to take effect come June, when the court renders a decision.

• Amna Nawaz:

  That isMary Ziegler, law professor at the University of California, Davis, joining us tonight.

  Mary, thank you. Always good to see you.

• Mary Ziegler:

  Thanks for having me.

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