It isn’t hard to find cases to back up his theory. I’ve previously written about Hattie Douglas, a Mississippi woman who was arrested and jailed for a year for killing her infant son with alcohol poisoning until a lab concluded a medical examiner had botched the test results. There’s Sabrina Butler, who spent two years on death row for murdering her infant son, until doctors later concluded the baby likely died of kidney disease. Jeffrey Havard is still serving a life sentence for killing his girlfriend’s 6-month-old, despite multiple affidavits from medical professionals concluding the forensic evidence against him was junk science. In 2012, a Georgia woman was convicted of vehicular homicide after her 4-year-old son was killed by a hit-and-run driver, because she and her son were jaywalking at the time.
Other medical examiners and defense attorneys have since echoed the sentiment, pointing to cases in which prosecutors utilized scientifically dubious expert testimony to secure convictions after a baby has died. Many point to shaken baby syndrome, a diagnosis that swept through the criminal legal system in the 1990s. The diagnosis has since come under fire in the scientific community, but it’s still given weight in much of the country, including Mississippi, where just last year the state’s Supreme Court voted 5 to 4 to uphold a conviction based on the theory.
It’s against this history that criminal defense and civil rights groups have expressed alarm over Justice Samuel A. Alito Jr.’s leaked draft opinion that would overturn Roe v. Wade. If some prosecutors already believe babies don’t die without criminal culpability, it stands to reason that as state legislatures push fetal personhood back to fertilization, the same logic will be applied to miscarriages. Women who miscarry could be investigated for using alcohol, tobacco, or illicit drugs, or engaging in other behavior prosecutors deem risky.
In fact, this is already happening. In 2007, a Lowndes County, Miss. grand jury indicted Rennie Gibbs with murder after a stillbirth when traces of a cocaine byproduct were found in her blood. In 2020, an Oklahoma woman was charged after methamphetamine was found in her system (despite a medical examiner’s conclusion that it played no role in the miscarriage). In 2019, an Alabama woman was charged with manslaughter for starting an argument with another woman, who then shot her, killing her fetus.
counterpointWatch out, Democrats. The abortion ruling may help Republicans.
But those are merely the cases that have received national attention. According to the National Advocates for Pregnant Women, between 2006 and 2020 more than 1,300 women were arrested, detained, or otherwise physically deprived of liberty for reasons related to a pregnancy. In some cases the women were charged for unintentionally harming the fetus, typically through the use of alcohol or illicit drugs. In others, prosecutors alleged the women had intentionally tried to induce an abortion.
One study of more than 400 arrests or other “forced interventions” by the state on pregnant women found that more than half the women were Black, and about 7 in 10 were poor enough to qualify for a public defender. There was also wide geographic disparity. Just 10 states accounted for more than two-thirds of the cases, and nearly 8 in 10 came out of the South or Midwest. South Carolina alone represented 23 percent of the cases and, incredibly, 7 percent originated from a single South Carolina hospital.
At least 38 states currently have laws granting legal protections to fetuses. In 29, those protections kick in shortly after fertilization. But under Roe and subsequent cases, harm that befalls the fetus during a legal abortion is exempted. (In fact, the study mentioned above found that many prosecutions were already in direct defiance of federal court rulings.) But if Roe falls and states make abortion illegal, those exceptions will no longer apply. In states that put personhood at fertilization, any pregnancy that doesn’t result in a live birth could be subject to scrutiny and possible prosecution.
According to the Centers for Disease Control and Prevention, about one-quarter of all pregnancies end in miscarriage, and about 1 in 3 women will experience one. Under a legal regime in which medical abortion is illegal, some women will inevitably try to end their pregnancies themselves. They may be targets of prosecution. But because of that, a larger percentage of women who involuntarily miscarry will likely be suspected and targeted, too.
Here, too, the prosecutions will no doubt be disproportionate. Due to malnutrition, access to medical care and other factors, poor and non-White women are more likely to miscarry. They’re also more likely to have unplanned pregnancies. If these prosecutions become more common, poorer women will be less likely to seek medical care when something goes wrong (especially since many of these prosecutions rely on tips from health-care workers), meaning more miscarriages, bringing yet more suspicion. In states such as Texas and Alabama there are already reports that physicians and pharmacists are declining to treat miscarriages in fear of a lawsuit or prosecution.
The fear here isn’t that states will explicitly make miscarriage a crime. It’s that once abortion is illegal, women who do miscarry will be investigated for ending their pregnancies intentionally. Their lifestyles and decisions will be scrutinized. They’ll be prosecuted for things such as addiction, malnutrition or failing to seek medical care. History suggests that the women most suspected will be disproportionately non-White, and they’ll overwhelmingly be women who lack the means and the platform to defend themselves.