Brittany Watts was overcome with emotion after hearing her felony case would proceed to a grand jury. Photo / WKBN
Warning: Contains sensitive issues around a miscarriage.
Ohio was in the throes of a bitter debate over abortion rights this autumn when Brittany Watts, 21 weeks and five days pregnant, began passing thick blood clots.
The 33-year-old Watts, who had not shared the news of her pregnancy even with her family, made her first prenatal visit to a doctor’s office behind Mercy Health-St. Joseph’s Hospital in Warren, a working-class city about 100km southeast of Cleveland.
The doctor said that, while a fetal heartbeat was still present, Watts’ water had broken prematurely and the foetus she was carrying would not survive. He advised heading to the hospital to have her labour induced, so she could have what amounted to an abortion to deliver the non-viable foetus. Otherwise, she would face “significant risk” of death, according to records of her case.
That was 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. That’s a fifth-degree felony punishable by up to a year in prison and a $2500 ($4026) fine.
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 US Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v Wade. Civil rights attorney Benjamin Crump elevated Watts’ plight in a post to X, formerly Twitter, and supporters have donated more than $100,000 ($161,000) through GoFundMe for her legal defence, medical bills and trauma counselling.
Whether abortion-seekers should face criminal charges is a matter of debate within the anti-abortion community, but, post-Dobbs, pregnant women like Watts, who was not even trying to get an abortion, have increasingly found themselves charged with “crimes against their own pregnancies,” said Grace Howard, assistant justice studies professor at San José State University.
“Roe was a clear legal roadblock to charging felonies for unintentionally harming pregnancies, when women were legally allowed to end their pregnancies through abortion,” she said. “Now that Roe is gone, that roadblock is entirely gone.”
Michele Goodwin, a law professor at the University of California, Irvine, and author of Policing The Womb, said those efforts have long overwhelmingly targeted Black and brown women.
Even before Roe was overturned, studies show 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, she said.
“Post-Dobbs, what we see is kind of a wild, wild West,” said Goodwin. “You see this kind of muscle-flexing by district attorneys and 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” women of all races might expect from the nation’s network of healthcare providers, law enforcers and courts now that abortion isn’t federally protected.
In Texas, for example, Republican Attorney General Ken Paxton mounted an aggressive and successful defence against a white Texas mother, Kate Cox, who sued for permission to skirt the state’s restrictive abortion law because her foetus had a fatal condition.
At the time of Watts’ miscarriage, abortion was legal in Ohio through 21 weeks, six days of pregnancy. Her lawyer, Traci Timko, said Watts left the hospital when, coincidentally, her pregnancy arrived at that date — after sitting for eight hours awaiting care.
It turned out the delay was because hospital officials were deliberating over the legalities, Timko said. “It was the fear of, is this going to constitute an abortion and are we able to do that,” Timko said.
At the time, vigorous campaigning was taking place across Ohio over Issue 1, a proposed amendment to enshrine a right to abortion in Ohio’s constitution. Some of the ads were harshly attacking abortions later in pregnancy, with opponents arguing the issue would allow the return of so-called “partial-birth abortions” and pregnancy terminations “until birth.”
The hospital did not return calls seeking confirmation and comment, but B. Jessie Hill, a law professor at Case Western Reserve University School of Law in Cleveland, said Mercy Health-St. Joseph’s was in a bind.
“These are the razor’s edge decisions that healthcare providers are being forced to make,” Hill said. “And all the incentives are pushing hospitals to be conservative, because on the other side of this is criminal liability. That’s the impact of Dobbs.”
Watts had been admitted to the Catholic hospital twice that week with vaginal bleeding, but she left without being treated. A nurse told the 911 dispatcher that Watts returned no longer pregnant on that Friday. She said Watts told her, “the baby’s in her backyard in a bucket,” and that she didn’t want to have a child.
Timko said Watts insists she doesn’t recall saying the pregnancy was unwanted; it was unintended, but she had always wanted to give her mother a grandchild. Her lawyer believes Watts may have meant that she didn’t want to fish what she knew was a dead foetus from the bucket of blood, tissue and feces that she’d scooped from her overflowing toilet.
“This 33-year-old girl with no criminal record is demonised for something that goes on every day,” she told Warren Municipal Court Judge Terry Ivanchak during Watts’ recent preliminary hearing.
Warren Assistant Prosecutor Lewis Guarnieri told Ivanchak that Watts left home for a hair appointment after miscarrying, leaving the toilet clogged. Police would later find the foetus wedged in the pipes.
“The issue isn’t how the child died, when the child died,” Guarnieri told the judge, according to TV station WKBN. “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.”
In court, Timko bristled at Guarnieri’s suggestion.
“You cannot be broadcasting any clearer that you just don’t get it,” she said in an interview, suggesting Watts was scared, anxious and traumatised by the experience. “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 foetus, what she’s just been through.”
As chief counsel to the county’s child assault protection unit, Assistant Trumbull County Prosecutor Diane Barber is the lead prosecutor on Watts’ case.
Barber said she couldn’t speak specifically about the case other than to note that the county was compelled to move forward with it once it was bound over from municipal court. She said she doesn’t expect a grand jury finding this month.
“About 20 per cent of the cases get no-billed, (as in) they do not get indicted and the case does not proceed,” she said.
The size and stage of development of Watts’ foetus — precisely the point when abortion crossed from legal to illegal in most cases — became an issue during her preliminary hearing.
A county forensic investigator reported feeling “what appeared to be a small foot with toes” inside Watts’ toilet. Police seized the toilet and broke it apart to retrieve the intact foetus as evidence.
Testimony and an autopsy confirmed that the foetus died in utero before passing through the birth canal. In regard to abuse, the examination identified “no recent injuries.”
Ivanchak acknowledged the case’s complexities.
“There are better scholars than I am to determine the exact legal status of this foetus, corpse, body, birthing tissue, whatever it is,” he said from the bench. “Matter of fact, I’m assuming that’s what ... Issue 1′s all about: at what point something becomes viable.”
Timko, a former prosecutor, said Ohio’s abuse-of-corpse statute is vague. It prohibits treating “a human corpse” in a way that would “outrage” reasonable family or community sensibilities.
“From a legal perspective, there’s no definition of ‘corpse,’” she said. “Can you be a corpse if you never took a breath?”
Howard said clarity on what about Watts’ behaviour constituted a crime is essential.
“For rights of people with the capacity for pregnancy, this is huge,” she said. “Her miscarriage was entirely ordinary. 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.”
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