Amid a constantly changing reproductive landscape, a West Virginia prosecutor is warning people who have miscarriages in his state that they may face legal consequences.
Raleigh County Prosecuting Attorney Tom Truman said that, while he would not charge someone for a miscarriage, he made the idea out of caution after hearing from other prosecutors.
Truman even proposes that people notify local law enforcement if they have had a miscarriage. Several reproductive law specialists say people around the country have faced charges related to miscarriages, but they don’t suggest contacting law enforcement.
Truman says the notion arose during a conversation with other West Virginia prosecutors at a convention several years ago, and it has been a topic of discussion ever since. The initial discourse was theoretical, as women in the United States still possessed the constitutional right to abortion under Roe v. Wade. But some prosecutors believed they could pursue someone under state statutes governing the disposal of human remains.
“I thought these guys were just chewing on a Dreamsicle,” Truman told reporters. However, he acknowledged that West Virginia’s law statutes include definitions that are “pretty broad-ranging.”
He stated that depending on how some prosecutors read the statute, people who miscarry may face criminal penalties, including crimes.
“It’s a different world now, and there’s a lot of discretion that prosecutors have, and some of them have agendas where they would like to make you an example,” Truman told CNN on Wednesday.
“What’s changed is, Roe isn’t there anymore, and so that may embolden prosecutors in some cases,” the attorney general added. “I’m just trying to say, ‘be careful.'”
According to the American College of Obstetricians and Gynaecologists, early pregnancy loss occurs in around 10 out of every 100 known pregnancies, often due to the embryo not developing properly. And, according to some reproductive law specialists, calling the police when this occurs is probably not a good idea.
“It’s always a mistake to invite law enforcement into your reproductive life,” said Kim Mutcherson, a professor of law at Rutgers police School who studies reproductive justice.
She warns that calling the police may result in an unwelcome investigation.
“If they then decide, ‘no, it actually wasn’t a miscarriage, this was somebody who took pills,’ or whatever sort of thing that they want to conjure up, then all of a sudden it goes from ‘here’s this poor woman who had a miscarriage’ to ‘here’s a person who we’re going to start to prosecute,'” Mutcherson said. “
“I understand the idea that caution is better than being caught up in something that you weren’t anticipating, but it is difficult for me to imagine any circumstance in which I would think it was safe for someone who miscarried to call the police,” according to her.
According to Dr. Kristyn Brandi, an ob/gyn in New Jersey and fellow of the American College of Obstetricians and Gynaecologists, hospitals have procedures in place for handling miscarriage tissue, such as sending it for further testing, disposing of it as medical waste, or sending it to a funeral home, depending on the patient’s wishes.
“But in the real world, there’s no set process,” Brandi explained. Patients may pass tissue and place it in the trash or toilet. People rarely give tissue for further testing. Their doctor may be able to answer their questions, or Brandi suggested they contact the M&A hotline, which helps people who had miscarriages or abortions.
“By having people report their miscarriages and possibly collect tissue, it is disrupting a process that honestly has been happening for thousands of years,” Brandi told me. “There is nothing in pregnancy tissue that can determine it was a miscarriage or an abortion in a formal investigation.”
Abortion is banned in West Virginia, however there are some exceptions, such as a medical emergency, a nonviable pregnancy, or a pregnancy caused by rape or incest.
Kulsoom Ijaz, senior policy counsel at Pregnancy Justice, a charity that advocates for pregnant people’s civil and human rights, said she does not believe West Virginia law criminalises miscarriage.
“I think the law is pretty clear,” she remarked. “There’s nothing in the law that says someone can be charged with a crime in connection to their pregnancy loss or their conduct during pregnancy, or for how they respond to that pregnancy loss or miscarriage or stillbirth.”
According to a report from Ijaz’s organisation, the fractured landscape of reproductive rights created by the Dobbs decision, the US Supreme Court ruling that revoked the federal right to abortion, has increased the risk that a pregnant person will face criminal prosecution for a variety of reasons, not just a miscarriage.
According to Pregnancy Justice, between June 2022, when Dobbs was handed down, and June 2023, there were over 200 cases in the United States in which a pregnant person faced criminal charges for actions related to pregnancy, pregnancy loss, or birth. According to Ijaz, the figure is almost certainly an underestimate.
In West Virginia, there were at least three examples of pregnancy prosecutions. In one case, the state Supreme Court ruled that the state could not prosecute someone for criminal child abuse based on their prenatal behaviour, which includes substance use throughout pregnancy.
Despite the tight abortion restriction, Ijaz stated, “there are still protections for pregnant people.”
It’s a little different in states like Alabama, where foetal personhood laws grant fertilised eggs, embryos, and foetuses the “same rights as you and I,” according to Ijaz. “We’ve seen people get prosecuted and face decades of incarceration for substance use during pregnancy, because that foetus that they’re carrying is seen as a child,” she told me.
Last year, the Warren City Prosecutor’s Office recommended that a lady who suffered a miscarriage at home be charged with a felony, but the case was dropped by a grand jury.
Ijaz stated that she does not believe there is a public appetite for these kind of cases, but that no matter where someone lives, drawing the law into their life immediately following a miscarriage is not advisable.
The legislative environment for reproductive justice “seems to almost be changing on a daily basis” – and generally not in favour of pregnant individuals, according to Brittany Fonteno, CEO of the National Abortion Federation, a professional network for abortion providers.
“The laws, the rhetoric, the culture in which we are living in within the US has become so incredibly hostile to people who experience pregnancy,” she told me.
“I think that the intersection of health care and criminalisation is an incredibly dangerous path,” Fonteno told reporters. “As a country, we should be supporting people and their ability to access the health care that they need, rather than conducting intrusive and traumatic investigations into their reproductive lives.”
Fonteno suggests that people who experience pregnancy loss contact a certified medical expert rather than law enforcement.
“While we are living in a very different country than we were pre-Dobbs, I believe still that this is an individual experience and a health care decision,” according to her. “Most providers believe that as well.”
Mutcherson also describes the reproductive justice landscape in the United States as “scary” for those who are pregnant, wish to become pregnant, or have had negative pregnancy outcomes. If there is a silver lining to the debate about criminalising miscarriage, she believes it is important for people to understand that such events can occur.
“Women have been criminalised for their pregnancies for decades, frankly, so to the extent that there is a wider and broader conversation about what it means to treat an embryo or a foetus as a person, and the ways in which that diminishes the personhood of somebody who was pregnant, that is in fact a valuable thing, right?” Mutcherson explained. “Maybe this is actually going to bring us to a better space.”