A Black woman in Ohio was charged after miscarrying in her bathroom. Experts warn of the dangerous precedent.

A Black woman in Ohio has been charged with a felony for abuse of a corpse after she miscarried into her toilet, according to a criminal complaint, and reproductive rights experts are warning that it could set a dangerous precedent if she is convicted.

The attorney for Brittany Watts and a campaign organized on her behalf called the charges against her unjust, saying they feared the case could open the door to similar prosecutions and lawsuits over miscarriages nationwide.

Just hours after Watts, 33, was admitted to a hospital for a life-threatening hemorrhage after she miscarried in her bathroom Sep. 22, police removed her toilet from her home and searched it for fetal remains, according to a GoFundMe set up to fund her legal expenses and home repairs.

“Ms. Watts suffered a tragic and dangerous miscarriage that jeopardized her own life. Rather than focusing on healing physically and emotionally, she was arrested and charged with a felony and is fighting for her freedom and reputation,” her attorney, Traci Timko, said in a statement.

Timko argued in court that there is no law in Ohio that requires a woman suffering a miscarriage to bury or cremate those remains.

The Ohio Revised Code specifies that women should “in no case” be criminalized for the death in utero of an unborn child.

Mary Ziegler, a law professor at the University of California, Davis, and the author of several books on the abortion debate, says Watts’ case is far from the first to criminalize a person for the outcome of their pregnancy, but could set a precedent for similar prosecutions and lawsuits if she is convicted.

“The abuse of corpse statute clearly wasn’t written with pregnancy-related conduct in mind,” Ziegler said. “It’s clearly a much older idea that isn’t usually applicable in this kind of context.”

Greer Donley, a law professor at the University of Pittsburgh, whose expertise includes the impact of abortion bans on other aspects of reproductive health care, agreed with Ziegler’s concern.

“Stillbirth has been in the crosshairs of the abortion wars, so this isn’t the first time it has been criminalized, but it might be the first time that this has happened on a national scale and certainly in a post-Dobbs context,” she said of the Supreme Court’s Dobbs v. Jackson decision that removed federal abortion protections in June 2022, marking the end of Roe v. Wade.

Watts’ case highlights the challenges that women with high-risk pregnancies face after the Supreme Court’s decision. As many as 22 states have enacted laws that restrict or ban abortion, giving prosecutors authority to bring charges, sometimes criminal, against those who provide abortions — in some cases even for fetuses with life-threatening abnormalities. The case also adds to the body of evidence that Black women are disproportionately criminalized while pregnant.

Last month, the Texas Supreme Court ruled against Kate Cox, who hoped to terminate her pregnancy after discovering that her fetus has a fatal diagnosis. She eventually left the state to terminate her pregnancy. Donley wrote that she was “not shocked” about the outcome of Cox’s case in an opinion essay for The New York Times.

Watts’ case also comes amid a push to enshrine abortion rights in state constitutions, after the Supreme Court ruling. In Watts’ home state of Ohio, voters added the right to access abortion care into the state’s Constitution last month.

Police investigation

Police investigated Watts’ home after they received a call about the miscarriage from the hospital, Warren Police Department Chief Eric Merkel said. Police sent the case to prosecutors, who he said allowed the charge to be filed.

Warren is 60 miles southeast of Cleveland.

Watts knew she was going to miscarry because doctors told her days before that her fetus could not survive outside her womb because of gestational age, Timko said.

“When the bleeding and the pain from the impending miscarriage got severe, she did the same thing that many women who miscarry at home do. Brittany went into her bathroom, miscarried into her toilet, and flushed,” a statement on Watts’ GoFundMe said.

According to the Centers for Disease Control and Prevention, roughly 16% of pregnant people miscarry or have a stillbirth.

Watts is being charged under a section of Ohio law that punishes those who treat a human corpse in a “way that the person knows would outrage reasonable family sensibilities” or “community sensibilities.”

The charge is a felony in the fifth degree, which is punishable by up to a year in prison, and a $2,500 fine.

Watts was arrested Oct. 5, and released on bond the same day after she pleaded not guilty, Trumbull County Prosecutor Dennis Watkins said in a press release Tuesday.

Preliminary hearing

On Nov. 2, Watts appeared in court for a preliminary hearing of the case, during which a medical examiner testified that her fetus died in utero and showed no signs of injury, Timko said.

Judge Terry Ivanchak ruled that there is “probable cause to find the accused guilty,” and sent the case to the Trumbull County Grand Jury, according to the Trumbull County prosecutor, where Watts’ case will be heard to determine whether there is enough evidence for a felony indictment.

“The issue isn’t how the child died or when the child died. It’s the fact that the baby was put into a toilet large enough to clog up the toilet, left in that toilet, and she went on her day,” Warren Assistant Prosecutor Lewis Guarnieri said during the preliminary hearing.

Guarnieri could not be reached for comment.

“Brittany sobbed as she sat in a courtroom listening to police officers describe the details of the most intensely personal moments of her life and then vilify her to the world, all while being recorded by local news media,” a statement on the GoFundMe page said.

Legal experts weigh in

Watts’ case is unusual because abuse of a corpse is a charge mostly used in the context of homicide cases, Ziegler said. It also stands out from other instances of pregnancy criminalization, because prosecutors conceded that there was nothing Watts could have done to continue her pregnancy.

In most other cases of pregnancy criminalization, prosecutors charged people with conduct that led to fetal demise, such as drug use, fetal assault, child endangerment or feticide, according to a report by the nonprofit group Pregnancy Justice.

Pregnancy Justice compiled cases of pregnancy criminalization across the U.S. from Jan. 1, 2006, until the day before the Dobbs decision, June 23, 2022. It defines pregnancy criminalization as instances in which a person faced a criminal arrest, arrest warrant or court order related to a pregnancy, or where a pregnancy was used as a justification for changes in bond conditions, pretrial release, sentencing, probation or parole revocation.

In the study, abuse of a corpse or tampering with remains were used as a criminal charge in only 2% of the almost 1,400 cases analyzed in the study. A total of 21 of those charges were felonies.

People were being prosecuted for pregnancy loss even before Roe V. Wade was struck down, but Ziegler said the post-Dobbs environment may explain why prosecutors have an interest in pursuing charges against Watts.

“In a case like this where there’s no threat to public safety involved and it’s a low-level felony, the question is why bother targeting this woman who is clearly grieving for this offense that almost never gets prosecuted on its own?” Ziegler said. “There’s a social movement that wants a fetus to be recognized as a rights holding person, and Brittany Watts is seen as a vehicle for moving closer to that reality.”