Miscarriage should not be a crime

(RNS) — The justice system finds itself in a new world when it comes to abortion and the rights of women. Last month in Texas, Kate Cox, pregnant with a nonviable fetus that threatened her future fertility, sued the government to gain a medical exception to the state’s near total ban on abortions. After the Texas Supreme Court barred her access to an abortion, she fled to obtain the medical procedure across state lines.

Yet the story that haunts me most is that of 33-year-old Black Ohio woman, Brittany Watts

Watts miscarried at 21 weeks and five days of pregnancy into her home toilet. Earlier that week, a doctor had informed her that due to her preterm labor, the fetus would not survive. She miscarried at home. Then she flushed both the fetus and the afterbirth. But she kept bleeding, even after keeping an appointment with her hairdresser, so she went to an emergency room at a nearby Catholic hospital. That’s when a nurse called the police, suspecting she’d performed an illegal abortion. Police charged Watts with “abuse of corpse,” a felony that could result in a year of prison time. An Ohio grand jury will decide her case this month.

Miscarriage is an agonizing experience even without a litigious system peering over your shoulder. A pro-life Christian, a mother of two myself and a former birth doula, I believe that God creates each baby that exists and that God knows each zygote from before its conception. Yet I am also flummoxed about the lack of compassion and empathy shown by pro-life activists and policymakers toward women put in such precarious circumstances that affect both them and their offspring.

Whatever the circumstances, a late-term abortion due to a life-threatening pregnancy complication is a last resort, the worst possible option for every woman I know, whether pro-life or pro-choice. A woman must undergo all the suffering of pregnancy, labor and postpartum without the reward of a child to make the pain worth it. She must then additionally grieve the loss of her child.

The “choice” is agonizing: Will she choose her own life or her child’s? In the case of miscarriage, the loss of control exacerbates the situation. Often women feel as if their own bodies have betrayed them. The grief is profound, and the physical suffering is worse for it. 

At the time Watts miscarried, more than halfway through pregnancy, a fetus of that gestation would be big enough to induce real childbirth, with the hallmark lengthening contractions, hormones, impossible pain and exhaustion. Watts’ health records show she experienced days of labor symptoms without pain medication. When she finally passed the baby, she must have felt relief, terror and grief.

But the case hinges on what happened after the miscarriage: Watts flushed. And then she continued with her day, going to a hair appointment … until she could no longer ignore the bleeding. A nurse, who had encountered Watts in her previous hospital visits, asked what had happened, and Watts answered truthfully, apparently adding that she had tried to dispose of the fetus herself. (Unsuccessfully: Police later discovered fetal remains lodged in her pipes.) 

The nurse assumed the worst: a live abortion. But even after a forensic pathologist’s autopsy determined that the fetus had died before labor, having experienced no injury during or after labor, Watts was charged.

Watts’ lawyer, Traci Timko, insists that though Watt’s actions sound callous, she had done what most women do when they miscarry at home. What else would you do with a miscarried fetus?

Since Watts’ intentions seem to be on trial, it’s worth noting she has said that though her pregnancy was unintended and she hadn’t informed her family of it, she planned to keep her baby. She had also made multiple trips to St. Joseph’s Hospital in Warren, Ohio, not to get an abortion, but to save her baby. Her miscarriage proceeded without the oversight of the medical practitioners only because, according to her lawyer, hospital staff had deemed her case too legally risky to take on.

For this, Watts faces criminal charges, even though Ohio law does not clearly define the “abuse of corpse” statute and current laws do not define how a miscarrying person should dispose of remains. As Timko has pointed out, “Women miscarry into toilets every day. If the state of Ohio expects these women to fish those remains from the toilet and deliver them to a hospital, funeral home or crematorium, the laws need [to be] changed.”

What is law in Ohio is the right to abortion, a right Ohio citizens recently voted into their state constitution. 

According to The Associated Press, studies show that Black women seeking prenatal care at hospitals were 10 times more likely than white women to have their cases referred to the authorities.

The callousness of our legal system toward women like Brittany Watts is astonishing. What does our country gain by dragging these women into court? What precedent will Ohio set by putting Watts into prison? And how many other women will receive delayed treatment — or be denied treatment outright — while hospital administrators debate liability risks?

Whether we believe in the right to abortion or not, Christians, who are in the forefront of pushing for abortion bans, must allow for exceptions in situations of miscarriage, rape and sexual assault and life-threatening circumstances for both mother and fetus. 

We must seek to understand the situations of those forced to make the most agonizing decisions of their lives. And we must extend empathy to the grieving. If we do not, we will find ourselves guilty of the judgment of Ezekiel 34:4: “You have not strengthened the weak or healed the sick or bound up the injured. … You have ruled them harshly and brutally.” Let those of us with power instead govern with mercy.

(Liz Charlotte Grant, author of the forthcoming book “Knock at the Sky: Seeking God in the Sky, the Earth, and the Book of Genesis,” is an award-winning essayist who writes a weekly newsletter, The Empathy List. From 2015 to 2017 she was certified as a birth doula. The views expressed in this commentary do not necessarily reflect those of Religion News Service.)

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