Charging women with felonies for burying miscarried children?
[This article is a transcript of “Charging women with felonies for burying miscarried children?” courtesy of volunteer Ben Tomlin. If you’re interested in volunteering to transcribe more of our content, please complete our volunteer survey.]
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I want to talk for a second about this article: Prosecutor Warns of Potential Charges Against Women Who Miscarry in West Virginia.
Could women in West Virginia who miscarry at home be charged with crimes related to the disposal of a body, if they flush or bury fetal remains?
Jessica Farrish, “Prosecutor warns of potential charges against women who miscarry in West Virginia“
Raleigh County Prosecuting Attorney Tom Truman said that a number of criminal charges under state code, including felonies, could be levied against a woman who flushes fetal remains, buries them, or otherwise disposes of remains following an involuntary abortion, also called a miscarriage.
Truman also said that women who miscarry at nine weeks or later could potentially face charges.
Some people will argue this has nothing to do with prosecuting miscarriage or abortion, it’s just about making sure that people dispose of human remains properly. That’s clearly not all it’s about, though. Because if it was just about making sure there was proper disposal of human remains, then the prosecutor wouldn’t be evaluating whether or not you seemed to feel relieved at your miscarriage. In fact, he wouldn’t be looking at intent at all. If it’s improper to dispose of remains in a certain way, it’s improper whether or not you did it because you were, as he says, trying to hide something, versus you were so distraught you didn’t know what else to do. Notice he doesn’t mention that maybe you were neither trying to hide something nor were you out of your mind. Maybe, for example, you wanted to bury your miscarried child in your backyard and keep her or him with you and your family. Nobody’s talking about that.
Look, here’s the thing: I continue to be appalled by how society in general, and the justice system in particular, don’t seem to have any comprehension of what the experience of miscarriage is like, and I can’t imagine what the excuse for this is, because there’s something like a million miscarriages a year in the United States, and we all know people who have had miscarriages. Many of us have gone through it ourselves, and yet we just don’t ever talk about it, and the total muting of the conversation around miscarriage results in lots of bad effects, and one of those bad effects is that society seems to have—on a cultural, institutional level—no earthly idea what’s going on. And that’s how I end up with people telling me that nobody would flush the remains of their miscarried children or bury the remains in the backyard or dispose of them in these ways, because surely there are proper, clear channels for how to handle the remains, and also surely everyone who’s experiencing miscarriage goes to a hospital where there’s a formal response. That’s nonsense.
Even people who want to be treated in a hospital when they have a miscarriage, or sometimes they go to a hospital, to an ER, or they call their OB’s office, they say, “I think I’m having a miscarriage,” and sometimes the response is, “Well, unless the bleeding exceeds a certain rate or a certain amount, you don’t need to come in. Just let it complete at home.” Having a miscarriage at home is really common, and living in a state where there aren’t any clear, specific protocols or even laws at all guiding how to handle the remains of your child after the miscarriage, also really common.
And I feel like every time we have these news stories about some attorney or some law enforcement officer or whoever deciding that the way someone handled their remains from a miscarriage is indication of criminal intent, I end up in these conversations with people who basically say, “Well, surely, surely, surely,” and then the next sentence out of their mouth is something that indicates that they don’t really have knowledge of how common miscarriages are, how they often play out for people, what the emotional and physical immediate effects are in many cases. And from this place of great ignorance, this is where people are opining on whether or not we should be charging people with felonies related to how they’re handling these traumatic situations.
[Read more – Georgia woman initially charged with two felonies for fetus in dumpster]
Now to be clear, I don’t think you should be able to handle human remains just literally however you want. I think there are biohazard issues. I think there are emotional, social issues. Like, there was a case we talked about not long ago where a woman put the remains of her second-trimester miscarried child in a dumpster. That’s not okay. It’s not okay for the people handling waste management. It’s not okay for biohazard reasons. I get that. I’m not saying do whatever you want because you’re upset. But we can have clear protocols about the safe and ethical ways to handle things without charging people with felonies.
And anyway, stories like this aren’t about making sure that we don’t have biohazard issues in the first place. You can see that because the prosecutor is trying to assess if they think you had certain intents with the way that you handled the remains, not just that there was a biohazard issue. Basically, the law in West Virginia does not allow for the prosecution of women who get abortions, and so attorneys are trying to figure out not how to enforce the law as written and intended, but how to finagle ways to enforce a law they wish existed that doesn’t.
The pro-life movement in general, Secular Pro-Life included, has said over and over again that nobody wants to prosecute people for miscarriages. The laws don’t even allow prosecution for women who get abortions, much less miscarriage. That’s fear-mongering. That’s not what we’re about. And then you have attorneys come out with strategies like this, that basically require the investigation of miscarriages completely at the attorney’s discretion depending on whether they think it’s suspicious or not, having, I think, very little knowledge of what miscarriage is like, in order to indirectly try to maybe prosecute abortion.
And given the accuracy of the justice system in general, and given society’s great ignorance, in my opinion, about what the experience of miscarriage is like, we need to reckon with the reality that if you are going to try to use these laws this way, you’re not just going to investigate people who’ve had miscarriages, but by some level of error rate, you’re also going to end up charging, holding, and potentially prosecuting people who’ve had miscarriages. This is all happening in states where the law doesn’t even allow prosecution for women who get abortions. If you tried to pass laws that directly allowed for prosecuting women who get abortions, this whole situation would be even worse.
[Read more – When miscarriage is an emotional crisis, medical professionals can help.]
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