For a long time after her miscarriage, Rebecca sat on the toilet, trying to figure out what to do.
“I thought about fishing it out of the bloody water,” she said. “I didn’t really want to hold it in my hand. I also didn’t know what I would do with it afterwards. Am I gonna put it in the trash? Am I gonna dig a hole in the backyard? What the hell am I supposed to do? I had no idea.”
It was around 3 or 4 in the morning; her husband was trying to get some sleep before work. She was exhausted and in shock.
“Ultimately, I flushed it. I didn’t want to,” Rebecca said. As she thought about it all again, she kept repeating herself: “I didn’t know what I was supposed to do.”
Rebecca, who is from Ohio, experienced that miscarriage in fall of 2014. Nine years and one supreme court decision later, another distraught woman would also miscarry into a toilet in Ohio – but after she tried to flush, she would have a very different experience. Her case would ultimately land a national spotlight on the anguish, uncertainty and even danger that millions of women, like Rebecca, have experienced in the minutes and hours after a miscarriage.
In September 2023, a 33-year-old woman named Brittany Watts went to the hospital, where doctors found that her water had broken roughly 22 weeks into her pregnancy, according to the Washington Post. It was too early for Watts to deliver a healthy baby. Hospital providers debated whether they could help her; at the time, Ohio had an abortion ban on the books. Watts reportedly left the hospital multiple times, at least once against medical advice. Within days, she miscarried into her home toilet.
Police ultimately charged Watts with the fifth-degree felony of “abuse of a corpse” – a charge that rang alarm bells among reproductive rights groups, since it suggested that a fetus can be legally defined as a human body. On 11 January, months after an initial hearing and after news outlets across the country had covered Watts’ story, a Trumbull county grand jury declined to indict Watts, ending the harrowing possibility of a trial and one-year prison stint.
But as the 2022 overturning of Roe v Wade continues to roil laws around reproductive health and the legal status of fetuses, someone else may soon face criminal consequences over their handling of a miscarriage. The law can be startlingly vague on the topic of miscarriages and their aftermath, while the persistent miasma of misinformation about pregnancy loss compounds people’s confusion and terror. What should Watts have done after her miscarriage? What should any woman do, at a time when any pregnancy can be twisted into a crime scene?
A murky legal landscape
For years after Rebecca’s miscarriage, she tried to simply move on, but the news stories about Watts have made that impossible. She keeps thinking “about how Republicans would want me to be in prison for the miscarriages”.
Rebecca, 44, asked to go only by her first name, because she’s afraid of anti-abortion activists and authorities coming after her. “It’s just not worth endangering my family,” she said. “That just doesn’t feel worth it any more – which is completely insane. We’re supposed to live in a free country.”
She is far from the only person to feel that way. After the Guardian published a story about Watts’ case, more than 100 people reached out to share their stories of miscarriages and their fears for the future.
“Without knowing it, these people are criminalizing their mothers, their sisters, their aunts, their friends,” said Mary Morgan, an Alabama woman who had five miscarriages within six years. “They have no idea how many women have had miscarriages – and I’m just gonna say it, have had them on the toilet, because I’m telling you, that’s a thing.”
About 10% to 20% of known pregnancies end in miscarriage, according to March of Dimes, a leading non-profit that focuses on maternal and infant health. Most of those miscarriages occur before 12 weeks of pregnancy. After 20 weeks, a pregnancy loss is known as a stillbirth (although fetuses are typically deemed viable – that is, able to survive outside the womb – at about 24 weeks).
Under normal circumstances, Dr Alexandria Wells might recommend that patients who are miscarrying earlier in pregnancy do as Rebecca did and flush. (It is, as Morgan said, common for people to miscarry into toilets.) If they want genetic testing to diagnose what went wrong, Wells might also recommend that they bring the miscarriage remains to her.
But many people in the United States are no longer living under normal circumstances.
In the 14 states with near-total abortion bans, there’s no good way to deal with the remains of pregnancy, according to Wells, an OB-GYN in Seattle, Washington and a fellow with Physicians for Reproductive Health. “This is a question that is particularly difficult for providers to answer, particularly when you get into higher gestational ages where you have recognizable fetal parts.”
Many miscarrying patients, Wells said, are probably no longer showing up at hospitals at all. Instead, they are potentially making decisions about fetal remains at home, alone.
“Honestly, we don’t know what’s safe” legally, she said. “I can’t necessarily tell someone in a restrictive state that it’s safe to bring their remains to a hospital or it’s best to bring them to a mortuary service. I genuinely don’t know. We’re in this kind of uncharted territory.”
State law, rather than federal, dictates definitions of “human remains” and how to dispose of them – but it’s not very clear, said Tanya Marsh, a professor at the Wake Forest University School of Law who teaches the only course in a US law school on funeral and cemetery law.
Historically, the law recognizes a “body” when the body possesses both a birth and death certificate, according to Marsh. But before the overturning of Roe, several anti-abortion state legislatures moved to implement requirements around the handling of fetal remains – which can also be known as products of conception – including in cases of miscarriages, stillbirths or abortion.
While those remains might have been previously classified as medical waste, medical facilities such as abortion clinics were suddenly legally tasked with treating them like human bodies and thus cremating or burying them. Abortion rights advocates attacked these laws, passed in states including Indiana and Texas, as veiled attempts to impose onerous, expensive restrictions on clinics.
“We’re not all on the same page about the answers to two of the most fundamental questions about the human condition: when do you exist and when do you no longer exist?” Marsh said. “And so then of course we’re not going to be on the same page about all the questions about: ‘OK, now what do you do with that which remains?’”
The restrictions on handling fetal remains apply only to medical providers and facilities, not individuals who may be getting an abortion or experiencing a miscarriage. (Similarly, US abortion bans typically impose criminal penalties on providers, not patients.) But while pregnant people may not be technically subject to those rules, that doesn’t mean they face zero legal risk when having miscarriages –especially in the post-Roe United States.
‘Who do we trust?’
Elizabeth Ling serves as senior counsel for the helpline run by the reproductive justice organization If/When/How, which also provided guidance to Watts’ legal team. American callers to the helpline can get free, confidential legal advice about their reproductive experiences, including miscarriages.
“People definitely do contact us with concerns about the fact that they may have experienced a miscarriage, or they think that they have experienced a miscarriage, and being worried about that information – if given to the wrong person – might be used against them,” Ling said.
Between 2000 and 2020, at least 61 people were criminally investigated or arrested for allegedly ending their own pregnancies or helping someone else do so, If/When/How found in a report released last year. Most of the adults whose cases proceeded through the court system were living in poverty.
Many of those cases were charged under statutes that were not originally meant to address the end of a pregnancy, such as child abuse, felony assault or assault of an unborn child, even homicide and murder. The “abuse of corpse” charge that Watts faced hinged on the question of whether someone had treated a corpse in a way that would “outrage reasonable community sensibilities”. Part of the problem, Marsh said, is that it’s no longer always clear what constitutes a “corpse”.
For anti-abortion activists, that may be something of a feature, rather than a bug: their opposition to abortion rests on the belief that a fetus is a person, and legally redefining fetuses as people – complete with the ability to leave behind a corpse – is a long-term goal of many in the movement.
Now that more than a dozen states ban almost all abortions, doctors who treat miscarriages can also get caught in a legal bind. From a medical provider’s perspective, a miscarriage and an abortion can look deeply similar; in medical lingo, miscarriages are even known as “spontaneous abortions”. Under abortion bans, providers have at times been reluctant to offer “miscarriage management”, out of a fear that authorities may think they’re performing illegal abortions. Even if a patient’s pregnancy is over, they might be unable to get the miscarriage care they need.
All abortion bans permit abortions in medical emergencies – but doctors have widely said that the exceptions are too vague to be workable.
When Watts’ water broke early, she technically experienced what is known as “preterm premature rupture of the membranes”, or PPROM. In cases of PPROM, someone’s pregnancy may be effectively over, because she’ll be unable to carry the pregnancy to term – but fetal cardiac activity may continue. In the months since Roe fell, many women who have had PPROM have said that they were denied procedures to treat it.
“PPROM happens routinely, at every hospital,” Dr Ghazaleh Moayedi, an OB-GYN in Texas, told the Guardian in an interview last year. “It has been one of the scenarios that has really highlighted the inaccuracy of an abortion law, and really the fallacy in trying to define a medical procedure as one thing or trying to describe pregnancy in one way.”
Watts was reportedly turned into police by a nurse. Of roughly 1,400 cases where people were criminalized for their pregnancies between 2006 and 2022, one in three cases were instigated by a medical professional, according to an analysis of the cases by the reproductive justice group Pregnancy Justice.
Erica Freeman, a full-spectrum doula, says she’s hearing from people who worry they will not be able to get care if they miscarry. “It definitely puts people in a hard place,” she said. “Who do we trust in these circumstances, that they’re gonna believe me, they’re gonna listen to me, that they’re gonna actually hear what’s coming out of my mouth and really diagnose me properly?”
Calls for open conversation
Everybody who talked to the Guardian about their miscarriages agreed: people don’t talk about miscarriages enough. Left in the dark about how common it is, people often feel like failures over their inability to stay pregnant.
Freeman recommended that people look for providers with whom they can have open conversations, both before and after pregnancy.
“We have to normalize those hard conversations and not for everyone to continue to think that pregnancy is just unicorns and rainbows,” said Freeman, who is also CEO of Sisters in Loss, a company that helps Black women speak out about pregnancy, infant loss and infertility. “Because it’s not, especially not in the US.”
When Roberta Nordheim-Wallace got unexpectedly pregnant around 1995, people seemed resentful that her pregnancy made her so nauseous. “It was all about stiffening my spine, and being grateful that I was going to be bringing new life into the world,” Nordheim-Wallace said.
That pregnancy ended in a miscarriage. She spent several hours in pain, then started to bleed heavily. Finally, she decided to go to the hospital, where she said she waited for hours. No one spoke directly to her, Nordheim-Wallace recalled.
“It was a Twilight Zone movie. The overarching feeling I had from the entire experience was that the entire thing made people extremely uncomfortable,” she said.
The way she was treated haunted her for years afterward. “It was an experience that frightened me so badly that when I reached the point of needing hip replacement, I was very nearly hysterical. I was at one point on the floor of my GP’s office, curled in a ball, because I could not accept the idea of going into a hospital again.”
In her view, Republicans are now telling women: “OK, you are no longer a thinking human being, you are now an incubator. And if you fail in your role as an incubator, you will be punished.”
In the US, you can call or text the M+A Hotline at 1-833-246-2632 from 8am to 1am ET for guidance on miscarriage
