Ohio Woman Faces Criminal Charges Following Miscarriage: Implications Post-Roe

The state of Ohio found itself embroiled in a contentious debate surrounding abortion rights when Brittany Watts, 21 weeks and 5 days pregnant, experienced a troubling medical situation. Ms. Watts, 33 years old, had kept her pregnancy a secret from her family until that point. She sought her first prenatal consultation at a doctor’s office near Mercy Health-St. Joseph’s Hospital in Warren, an industrial city situated approximately 60 miles southeast of Cleveland.

The doctor’s diagnosis revealed a grim reality: while a fetal heartbeat remained, Ms. Watts’ amniotic sac had ruptured prematurely, and her unborn fetus had no chance of survival. He strongly recommended that she go to the hospital for induced labor, effectively performing an abortion to deliver the nonviable fetus. Refusing this option would have posed a “significant risk” to her life, as documented in her medical records.

This episode unfolded on a September Tuesday, leading to a harrowing three days characterized by multiple hospital visits, Ms. Watts experiencing a miscarriage at her home, and a subsequent police investigation into her actions. To compound her distress, Ms. Watts, an African American, was charged with “abuse of a corpse,” a fifth-degree felony that carries a potential sentence of up to one year in prison and a $2,500 fine.

Last week, her case was submitted to a grand jury, sparking a nationwide outcry over the treatment of pregnant women, particularly Black women, in the aftermath of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. Prominent civil rights attorney Benjamin Crump brought attention to Ms. Watts’ predicament on social media, and supporters rallied to raise over $100,000 through GoFundMe for her legal defense, medical expenses, and trauma counseling.

The issue of whether individuals seeking abortion should face criminal charges is a matter of debate within the anti-abortion community. However, since the demise of Roe v. Wade, pregnant women like Ms. Watts, who were not even attempting to obtain an abortion, have increasingly found themselves facing charges related to “crimes against their own pregnancies.” Grace Howard, an assistant professor of justice studies at San José State University, pointed out, “Roe provided legal protection against felony charges for unintentional harm to pregnancies when abortion was legally permitted. Now that Roe is no longer in effect, that protection is gone.”

Michele Goodwin, a law professor at the University of California, Irvine, and author of “Policing The Womb,” highlighted that such efforts have disproportionately targeted Black and minority women. Even before the overturning of Roe, studies revealed that Black women seeking prenatal care at hospitals were ten times more likely than their white counterparts to have child protective services and law enforcement involved, even in similar cases.

In the wake of the Dobbs decision, a new era has emerged, described by Goodwin as a “wild, wild West,” where district attorneys and prosecutors are eager to assert their authority in enforcing state legislature-inspired norms. Black women, in particular, are perceived as the “canaries in the coal mine” for the heightened vigilance that women of all backgrounds may now face from healthcare providers, law enforcement agencies, and the courts, given the absence of federal abortion protections.

In Texas, for instance, Attorney General Ken Paxton vigorously defended the state’s restrictive abortion law against Kate Cox, a white mother who sought an exemption due to her fetus’s fatal condition.

At the time of Ms. Watts’ miscarriage, Ohio permitted abortions up to 21 weeks and six days into pregnancy. Her attorney, Traci Timko, disclosed that Ms. Watts left the hospital on the Wednesday when her pregnancy reached precisely that stage, following an eight-hour wait for care.

Timko explained that the delay arose from the hospital’s concerns about the legality of the procedure. “There was uncertainty about whether this would be considered an abortion and if it was permissible,” she said.

Notably, during that period, Ohio was embroiled in a vigorous campaign over Issue 1, a proposed constitutional amendment aiming to safeguard abortion rights in the state. Some advertisements vehemently criticized late-term abortions, raising concerns about the potential return of so-called “partial-birth abortions” and “pregnancy terminations until birth.”

Mercy Health-St. Joseph’s Hospital did not respond to requests for comment. Nevertheless, B. Jessie Hill, a law professor at Case Western Reserve University School of Law in Cleveland, remarked that the hospital faced a perplexing dilemma. She stated, “These are the razor’s edge decisions that healthcare providers are being forced to make. All the incentives are pushing hospitals to be conservative because the alternative is criminal liability. That’s the impact of Dobbs.”

Ms. Watts had been admitted to the Catholic hospital twice that week due to vaginal bleeding, but she left without receiving treatment. According to a nurse’s account to a 911 dispatcher, Ms. Watts returned later that Friday no longer pregnant, stating that “the baby’s in her backyard in a bucket,” and expressing reluctance to have a child.

Timko contended that Ms. Watts does not recall stating that the pregnancy was unwanted. Instead, it was unintended, but she had always desired to give her mother a grandchild. Timko suggested that Ms. Watts may have meant that she was unwilling to retrieve the dead fetus from the bucket of blood, tissue, and feces that had overflowed from her toilet.

At Ms. Watts’ recent preliminary hearing, she implored Judge Terry Ivanchak of Warren Municipal Court, saying, “This 33-year-old woman with no criminal record is demonized for something that occurs every day.”

Warren Assistant Prosecutor Lewis Guarnieri, who is handling the case, argued that Ms. Watts left her home for a hair appointment after miscarrying, leaving a clogged toilet behind. Subsequently, police discovered the fetus wedged in the plumbing.

During the court proceedings, Timko expressed her disagreement with Guarnieri’s stance, emphasizing that Ms. Watts had been frightened, anxious, and traumatized by the ordeal. She stated, “She’s trying to protect Mama. She doesn’t want to get her hair done. She wants to stop bleeding like crazy and start grieving her fetus, what she’s just been through.”

Assistant Trumbull County Prosecutor Diane Barber, who leads the county’s child assault protection unit and is responsible for prosecuting Ms. Watts’ case, declined to provide specific details but noted that they had a duty to proceed once the case was forwarded from municipal court. She anticipated a grand jury decision later this month, acknowledging that approximately 20% of cases do not lead to indictments.

The central point of contention during Ms. Watts’ preliminary hearing was the size and stage of development of her fetus, particularly when abortion transitions from legality to illegality without exceptions. A county forensic investigator reported detecting “what appeared to be a small foot with toes” in Ms. Watts’ toilet. The toilet was subsequently seized and dismantled to retrieve the intact fetus as evidence. Testimony and an autopsy confirmed that the fetus had died in utero before passing through the birth canal, with no signs of recent injuries related to abuse.

Judge Ivanchak acknowledged the complexities of the case, remarking, “There are better scholars than I am to determine the exact legal status of this fetus, corpse, body, birthing tissue, whatever it is.” He suggested that Issue 1 aimed to address precisely when

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More about Miscarriage Laws

• Dobbs v. Jackson Women’s Health Organization
• Roe v. Wade
• Abortion rights in Ohio
• Brittany Watts case coverage