How Some States Turn Pregnancy Loss Into Criminal Cases Against Women

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It often starts with suspicion: Why didn’t she call for an ambulance when the bleeding started? What if she didn’t want the baby? Maybe she took something — or inquired about abortion pills?

How a person handles a pregnancy loss — and where it occurs — can mean the difference between a private medical issue and a criminal charge for abuse of a corpse, child neglect or even murder.

States across the country have been using a series of laws and court rulings in the past decade to criminalize how women react to pregnancy loss. Legal experts say the fear and suspicion following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that allowed states to ban abortion may be making things worse.

Nationally, about 20% of pregnancies end in a loss, which includes miscarriage or spontaneous abortion, ectopic pregnancy, stillbirth or fetal death, according to federal data. Only a small number are investigated as crimes. But advocates say the growing number of laws in some states place people’s actions following pregnancy loss under greater scrutiny from law enforcement.

Women in South Carolina, Georgia, Ohio, Arkansas, Texas, Mississippi, Oklahoma and several other states have faced criminal charges after a miscarriage or stillbirth for failing to seek immediate medical treatment, not pursuing prenatal care or disposing of the fetal remains in a way that law enforcement or prosecutors considered improper.

A fetus found in a bathroom stall on an Oklahoma college campus, another in a New York City restaurant restroom, two fetuses found on a Baltimore bus — all resulted in criminal investigations by police in recent months.

Many states have laws on the handling of fetal remains following a miscarriage or stillbirth. Most are health codes for hospitals or medical providers — not criminal statutes. The rules vary on exactly what should be done, and at what gestational age the requirements begin.

Until this year, New York required a burial license for any fetal remains past 20 weeks, but offered no guidance for what to do when a miscarriage happened earlier in a pregnancy. Oklahoma and Arkansas now issue fetal death certificates for pregnancy loss as early as 12 weeks. And confusion about the legal requirements and the science behind stillbirth hasn’t stopped states from using these laws — and medical examiner’s offices — to launch criminal prosecutions.

“These are cases based on feelings, not facts,” said Dara Gell, senior staff attorney for Pregnancy Justice, a nonprofit that advocates for the civil rights of pregnant people. “Dobbs has given the green light to investigate every fetal demise.”

Often, experts say, the investigation hinges on suspicion that the woman didn’t want her baby or tried to end her pregnancy — legally or illegally, depending on the state. Pregnancy loss is often traumatic and painful, and critics of these laws say people shouldn’t be punished for how they respond to that trauma.

“It is not satisfying to us that a baby could just die for no reason, or an unknown reason … and so we reach for someone to blame and especially when women are not performing motherhood as we think they should, or they’re not upholding the standards that we set out for mothers — we’re happy to blame them,” said Madalyn Wasilczuk, a law professor at the University of South Carolina who has researched these prosecutions. She said that doctors rarely tell pregnant women what state law or policy requires them to do if they miscarry or have a stillbirth.

“Here is one of the worst moments of your life, and we’re asking you to have a calm, measured reaction ... no one tells you what to do in that instance,” she said.

Prosecutions related to pregnancy appear to have increased since the Dobbs decision that overturned Roe v. Wade, according to Pregnancy Justice. In the first year after Dobbs — from June 2022 to June 2023 — there were at least 210 pregnancy-related prosecutions, said Wendy Bach, a law professor at the University of Tennessee who worked with Wasilczuk to study the more than 200 cases.

That’s the highest number of pregnancy-related prosecutions documented in a single year since Pregnancy Justice began tracking known cases that have occurred since 1973.

A number of those cases resulted from prosecutors in several states expanding their use of child abuse and neglect laws in recent years to police the conduct of pregnant women under the concept of “fetal personhood,” a tenet promoted by many anti-abortion groups that a fetus should be treated legally the same as a child.

But law enforcement in states where abortion is banned or restricted have also launched criminal investigations into miscarriage and stillbirth when a mother is suspected of trying to hide or end her pregnancy.

At least 22 of the cases from the year following Dobbs involved a fetal or infant demise and allegations regarding the woman’s conduct during the pregnancy — that’s a significant number of cases for a single year, Bach said.

“It signals that perhaps there is increased suspicion about pregnancy loss in general — and specifically when the birth happens in some way that doesn’t conform to exactly what people think you’re supposed to do,” she said.

Most states report fetal deaths that occur at 20 weeks gestation or later to the Centers for Disease Control and Prevention. Some states also collect reports of deaths prior to 20 weeks — but not all of them send that data to the CDC. Experts say it’s often impossible to determine exactly why a pregnancy ended. Nationally, in states where it is tracked, the most common cause of death for fetuses is “unspecified.”

The key to understanding why pregnancy loss happens in many cases is the placenta, said Dr. Jeffery Goldstein, an associate professor of pathology at Northwestern University in Chicago. But Goldstein is one of only about 100 doctors in the U.S. who specialize in this area.

Goldstein frequently autopsies fetal remains to figure out what caused a stillbirth or miscarriage. His hospital doesn’t typically autopsy fetuses younger than 16 weeks because there is simply not enough meaningful information to determine a cause of fetal demise, Goldstein said.

Even in cases where a fetus is further developed, about 22% of the time the cause is too complex to assign to a single factor, he said.

Patients often are not aware that they are miscarrying, sometimes the first sign may be passing a fetus into the toilet, he said. Many bring the remains to the hospital seeking an autopsy, to find out what went wrong. To Goldstein’s knowledge, none of the pregnancy loss cases he’s consulted on for patients have resulted in criminal prosecution, he said.

In 2015, in Arkansas, Annie Bynum walked into a hospital with a plastic bag containing the remains of her stillborn fetus. She ended up going to jail and eventually prison, accused of “concealing” the stillbirth, something that several states, including Arkansas, still label a crime. Such laws date back to the 17th century, intended to shame and accuse women of crimes if they were pregnant and unmarried.

A single mom, Bynum was already struggling to take care of her 4-year-old son when she found out she was pregnant. She tried to hide the pregnancy from her family. She and her son lived with Bynum’s mother, and she said she feared her mother would kick her out. She quietly planned to let a friend adopt the baby.

But the fetus was stillborn one night at a house where she was staying. Bynum took the fetal remains to a hospital in a plastic sack the next morning, resulting in a criminal investigation. A jury deliberated for four minutes before convicting her and sentencing her to six years in prison.

Later, an appeals court ruled that the jury shouldn’t have been allowed to hear evidence that Bynum ingested medications to induce labor before the stillbirth or had previously had abortions — because the charge was that she had concealed the pregnancy, not tried to end it. She eventually pleaded guilty to a legal violation for the attempted adoption.

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She still lives in Monticello, the small Arkansas logging town where she was convicted, occasionally running into jurors from her case. She still refuses to look at what neighbors said about her in the comments section of the local newspaper.

“Talk about a scarlet letter,” she said.

In March 2023, a college student in Orangeburg, South Carolina, named Amari Marsh went from miscarrying a fetus in her bathroom to being investigated for a homicide.

Marsh told investigators she didn’t realize she was pregnant — she was still getting what she thought was her period. Then she went to an emergency room because of severe pain, and left after finding out she was pregnant. Later that night, she miscarried in a toilet at home, and her boyfriend at the time called 911. But police became suspicious that she may have sought to end the pregnancy or not called 911 fast enough, records show.

A police report said Marsh had sought abortion pills from Planned Parenthood — but there were no records showing she obtained or took any pills, according to her lawyer, Seth Rose. Marsh said in interviews she had panicked and didn’t realize police were investigating her criminally when they asked her to come in for questioning. The police report quotes an EMS worker who arrived and “found signs of life” in the fetus, but does not document what those were.

Rose said his client never should have been arrested. She was jailed and accused of homicide by child abuse — before the fetus was autopsied, her lawyer said.

An autopsy showed later that the fetus died of natural causes due to an infection that Marsh was unaware of, Rose said.

In South Carolina, police can arrest someone on a criminal complaint without approval from a local prosecutor (called solicitors).

“My office had nothing to do with the initial charges being filed by law enforcement,” David Pascoe, solicitor for the First Judicial Circuit, where Marsh was arrested, wrote in an email. Pascoe said he does not believe reproductive rights were central to Marsh’s case — the issue was whether she delayed calling 911. But he said made sure the grand jury had all of the evidence in the case, and they decided to dismiss it.

“I respect and agree with that decision,” he said via email.

But that doesn’t undo the harm for Marsh and her family, Rose said. She is a high-achieving college student who was labeled in some news reports as a murderer — based on incorrect and incomplete information, he said.

“And she’s dealing with the trauma of losing a child,” he said.

A thousand miles away in northern Oklahoma, Kathryn Green wonders how she will ever live down the label of “baby killer.”

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In 2017, while living in the town of Enid, Green lost what would have been her fourth child, Drake. Her life was already scarred by trauma and loss. After her grandmother and a beloved nephew died in the same year, she spiraled out of control and turned to meth to cope, she said.

She didn’t realize she was pregnant with Drake until she went into labor. He was stillborn, and she was scared. She cleaned his body, wrapped him in a blanket and put his corpse in a tiny box next to her bed. Police later got tipped off about the birth, and found the remains in the trash.

“I was so scared I’d lose the kids. I didn’t know what to do, and so I tried to hide it,” Green said. “In all reality, that made me lose everything.”

Prosecutors initially charged her with second-degree murder, and news headlines claimed: “Death of newborn found in Oklahoma trash ruled homicide.” She was arrested, placed in jail, and her booking photo appeared on national and local news websites. Prosecutors and the medical examiner’s report said the stillbirth happened because of “meth toxicity.”

But tests performed later by medical experts showed otherwise: Green’s stillborn son had an infection that had caused his demise, records show. The medical examiner who’d attributed the fetus’ cause of death to meth toxicity had been fired from a previous job for mishandling evidence, records show, and he had not preserved any portion of Green’s placenta for evidence. An expert in fetal and perinatal pathology brought in by Green’s lawyers to review tissue samples concluded that a common infection was the likely cause of stillbirth.

Prosecutors in Garfield County had already changed her murder charge to child neglect, along with unauthorized disposal and desecration of a human corpse. Under Oklahoma’s child neglect law, they didn’t have to prove harm to the fetus — only exposure, said Assistant District Attorney Sean Hill.

“This one was more aggravating because of how the child was found,” Hill said.

It took years for Green’s case to wind its way through the Oklahoma court system. In 2022, she decided to enter an Alford plea — a guilty plea in which the defendant maintains innocence — and a prosecutor asked District Judge Dennis Hladik to sentence Green to 38 years in prison.

At the sentencing hearing, Hladik said he wasn’t convinced that prosecutors had proven Green willfully and knowingly harmed her baby by using methamphetamine while pregnant, but he was bothered by her “lack of maternal instinct.” He sentenced her to a prison drug treatment program that would take about a year to complete, and more than 20 years probation.

“I am unable to think of anything to desecrate a baby’s body in a worse way than by tossing it in the trash,” Hladik said at the 2022 hearing. Green shook and sobbed as he spoke.

Green completed her drug treatment program through the Oklahoma Department of Corrections. She now lives with her mother and three children in Waukomis, a smaller town south of Enid. People sometimes still look at her like she’s a monster, she said.

“I’ll always have to live with shame. I’ll always have to live with guilt,” she said. “It’s hard enough to live with that and to deal with losing a child and to deal with your whole world changing, but it doesn’t make it easier on you when you go somewhere and someone recognizes your name or something, and it’s just like reliving that over again.”

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