With abortion under fire during the U.S. Supreme Court nominations, legal protections against criminal investigation after miscarriage are needed more than ever

by Olga Zasztowt

The U.S. Senate has taken up the nomination of Judge Amy Coney Barrett for final confirmation vote on Monday October 25, 2020. Barrett is Trump’s nominee to replace the seat vacated by the late Justice Ruth Bader Ginsberg on the U.S. Supreme Court. Confirming this nominee would ensure a 6–3 conservative majority in the highest court of the United States, which has forced many again to grow concern with the possibility of the reversal of Roe v. Wade. While Barrett has refused to comment on the landmark case[i] and how she would rule in the future, historically Barrett has spoken out against abortion rights. For example, Barrett voted in favor of a law that would have doctors inform the parents of minors seeking abortion without exception, and she called to rehear a failed state law that attempted to ban abortions relating to sex, race, disability, and life-threatening conditions. Barrett has also previously argued in favor of a law that would require burial or cremation of all fetal remains which would increase the logistical and financial difficulties that already exist when seeking abortion care.[ii]

While Maryland has previously codified Roe, there are still concerns over the potential for criminalization of persons who experience pregnancy loss, as no such law exists to protect against arrest or criminal investigation in our state. On the first day of the Senate Judiciary Committee, Senator Cory Booker stated what a future without Roe would look like.[iii]

It looks like them being left with no options. It looks like state laws proliferating throughout our country that seek to control and criminalize women. It looks like the government interfering with women making the most personal medical decisions. It looks like a country in which states may write laws that could subject women who have miscarriages to investigations to ensure that they didn’t have abortions.

As the month of October marks Pregnancy and Infant Loss Remembrance Day, it is important for us to recognize the grief that pregnant people and their families face when dealing with miscarriage, and work to prevent the impact that wrongful investigation can have on their lives.

Recently, Chrissy Teigen and her husband, John Legend, shared that they experienced the devastating loss of their son, Jack, to miscarriage. The couple shared a heart wrenching message with raw and emotional photos from their time in the hospital on Instagram and Twitter. While media support for the family was overwhelmingly positive, and many fans and celebrities mourned their loss and thanked them for sharing what is such an intimate moment so candidly, not all of the internet believed that this was the best place for Teigen to share her grief or her experience with pregnancy loss. One Twitter user commented, “This is gut wrenching but completely inappropriate for social media. I don’t understand the need to make this so public. ” Another stated, “we don’t need to know all your business, some things are private and just for your family to know.“ There was a barraging of this type of grief shaming messaging in the comments of Teigen’s posts and it really paints an accurate picture of miscarriage stigma and how pregnant people are shamed into silence regarding their miscarriages and grief in this country.

While Teigen has a platform to share her story, which for the most part was met with positivity and did not come with the fear of legal action, many pregnant people and their families are not afforded such “luxury.” They are expected to suffer in silence for the comfort of greater society, and may refuse seeking treatment for miscarriage for fear of being accused of feticide, manslaughter, “depraved heart” homicide, or homicide by child abuse.[iv] Over 1 in 4 pregnancies end in miscarriage before 20 weeks of gestation, and many miscarriages occur before one even realizes they are pregnant,[v] for reasons that are commonly beyond ones personal control. However, it is not uncommon to hear that after a patient presents for miscarriage evaluation, they are met at their home by police officers who are there to arrest them for not being able to guarantee a healthy birth outcome.

From 1973 to 2005, the National Advocates for Pregnant Women identified 68 cases in which women were charged for pregnancy loss due to actions or inactions during pregnancy. This statistic does not include the hundreds of arrests and instances of criminal investigations conducted across our nation for pregnancy loss since the Roe ruling. Reasons for these arrests range from declining a cesarean section to experiencing trauma in pregnancy, such as a gunshot wound. These instances are becoming more widely known about as increasing numbers of states continue to enact and enforce laws that criminalize pregnant people who experience miscarriage.[vi] These laws are commonly “fetal harm” laws which target pregnant people who express doubts around their pregnancy, or who suffer from substance use disorders. The laws seek to determine “personhood” for fetuses to grant full legal protections under the law, while ignoring the root causes of perinatal loss, perpetuating the idea of pregnant people as “vessels,” and blurring the line between patient-provider confidentiality and trust. Further they place blame on pregnant people for pregnancy loss, and more often than not target people of color, who experience higher rates of miscarriage and stillbirth than white women.

According to the National Perinatal Association, “threats of discrimination, incarceration, loss of parental rights, and loss of personal autonomy are powerful deterrents to seeking appropriate prenatal care.”[vii] If our goal is safer outcomes for both pregnant person and their child, as we continue to battle with the preservation of Roe, we also need to overturn policies that make pregnant person’s vulnerable to legal investigation for miscarriage and increase protections against those violations where they don’t already exist, to ensure that all feel safe accessing the services they need.

[i] https://www.cnn.com/politics/live-news/amy-coney-barrett-hearing-10-13-20/index.html?tab=Abortion

[ii] https://www.washingtonpost.com/politics/courts_law/a-look-at-judge-amy-coney-barretts-notable-opinions-votes/2020/09/26/d254cc88-003c-11eb-b0e4-350e4e60cc91_story.html

[iii] https://www.youtube.com/watch?v=eQapGls4L_g&feature=youtu.be

[iv] https://www.nationaladvocatesforpregnantwomen.org/issues/pregnancy-loss/

[v] https://www.plannedparenthoodaction.org/planned-parenthood-advocates-arizona/blog/when-miscarriage-is-a-crime

[vi] https://www.whijournal.com/article/S1049-3867(20)30023-2/fulltext

[vii] https://mk0nationaladvoq87fj.kinstacdn.com/wp-content/uploads/2019/10/Medical20and20Public20Health20Group20Statements20revised20June202018.pdf