Woman criminally charged after a miscarriage. It shows the perils of pregnancy post-Roe

COLUMBUS, Ohio —  Ohio was in the throes of a bitter debate over abortion rights earlier this fall when Brittany Watts, whose pregnancy was 21 weeks and 5 days along, began passing thick blood clots.

Watts, 33, who had not told even her family she was pregnant, made her first prenatal visit to a doctor’s office behind Mercy Health-St. Joseph’s Hospital in Warren, a working-class city about 60 miles southeast of Cleveland.

The doctor told her that there was still a fetal heartbeat, but that Watts’ water had broken prematurely and the fetus would not survive. He advised her to head to the hospital to have labor induced, which would amount to an abortion of the nonviable fetus. Otherwise, she would face “significant risk” of death, case records show.

That was a Tuesday in September. What followed was a harrowing three days entailing multiple trips to the hospital; Watts miscarrying into, and then flushing and plunging, a toilet at her home; a police investigation of those actions; and Watts, who is Black, being charged with abuse of a corpse — a fifth-degree felony punishable by up to a year in prison and a $2,500 fine.

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Her case was sent last month to a grand jury. It has touched off a national firestorm over the treatment of pregnant women, and especially Black women, in the aftermath of the Supreme Court’s Dobbs decision last year that overturned Roe vs. Wade.

Civil rights attorney Benjamin Crump elevated Watts’ plight in a post to X, formerly Twitter.

Michele Goodwin, a UC Irvine law professor and the author of “Policing the Womb,” said that the case follows a pattern of women’s pregnancies being criminalized against them, and that such efforts have long overwhelmingly targeted Black and brown women.

Even before Roe was overturned, studies showed that Black women who visited hospitals for prenatal care were 10 times more likely than white women to have child protective services and law enforcement called on them, even when their cases were similar, Goodwin said.

“Post-Dobbs, what we see is kind of a wild, wild West,” she said. “You see this kind of muscle-flexing by ... prosecutors wanting to show that they are going to be vigilant — they’re going to take down women who violate the ethos coming out of the state’s legislature.”

She called Black women “canaries in the coal mine” for the “hyper-vigilant type of policing” that women of all races could face from healthcare providers, law enforcement and courts now that abortion isn’t federally protected.

At the time of Watts’ miscarriage, abortion was legal in Ohio through 21 weeks and six days of pregnancy. Her lawyer, Traci Timko, said Watts sat for eight hours at Mercy Health-St. Joseph’s awaiting care on the eve of her pregnancy reaching 22 weeks, and finally left without being treated.

Timko said hospital officials had been deliberating over the legalities of treating Watts. “It was the fear of, ‘Is this going to constitute an abortion, and are we able to do that?’” the lawyer said.

The hospital didn’t return calls seeking confirmation and comment.

B. Jessie Hill, a Case Western Reserve University law professor, said the hospital was in a bind.

“These are the razor’s-edge decisions that healthcare providers are being forced to make,” she said. “And all the incentives are pushing hospitals to be conservative, because on the other side of this is criminal liability.”

Warren Assistant Prosecutor Lewis Guarnieri told Municipal Judge Terry Ivanchak at Watts’ preliminary hearing that she had left home for a hair appointment after miscarrying, her toilet still clogged.

“The issue isn’t how the child died, when the child died,” Guarnieri said, according to WKBN-TV.“It’s the fact the baby was put into a toilet, was large enough to clog up the toilet, left in that toilet, and she went on [with] her day.”

Timko bristled in court, saying: “This 33-year-old girl with no criminal record is demonized for something that goes on every day.”

The size and stage of development of Watts’ fetus also became an issue during her preliminary hearing.

At the time, campaigning against Issue 1, the ultimately successful amendment to enshrine the right to abortion in Ohio’s Constitution, included claims that the amendment would allow abortions “until birth.”

A forensic investigator reported what felt like “a small foot with toes” inside Watts’ toilet. Police broke the toilet apart and retrieved the intact fetus as evidence.

An autopsy found that the fetus had died in utero before passing through the birth canal and had “no recent injuries.”

The judge acknowledged the case’s complexities as he sent it to the grand jury, saying: “There are better scholars than I am to determine the exact legal status of this fetus, corpse, body, birthing tissue — whatever it is.”

Diane Barber, Trumbull County’s lead prosecutor in the case, could not speak about it other than to note the county is compelled to move forward with it. She doesn’t expect a grand jury finding this month.

Grace Howard, assistant justice studies professor at San José State, said clarity on what about Watts’ behavior may have constituted a crime is essential.

“Her miscarriage was entirely ordinary,” she said. “So I just want to know what [the prosecutor] thinks she should have done.

“If we are going to require people to collect and bring used menstrual products to hospitals so that they can make sure it is indeed a miscarriage, it’s as ridiculous and invasive as it is cruel.”