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Voiding of Roe v. Wade May Criminalize Stillbirths, Miscarriages

Chelsea Becker spent 16 months in a California jail awaiting a murder trial after her pregnancy ended in a stillbirth. "I was prepared to just stay at least for the next 15 years in prison," she said. Becker's 2019 arrest drew national attention. Under an earlier Supreme Court blocking a Louisiana law that would shutter nearly all abortion clinics in that state, advocates warned that Becker's arrest would empower more prosecutions for pregnancy outcomes. In less than three years, a reconstituted Supreme Court ruled again on an anti-abortion law — this time using a Mississippi law to abolish federally protected abortion rights. Advocates again are warning that women will be prosecuted for pregnancy loss — including miscarriages and stillbirths, NPR reports. "What we have seen in cases where we have provided legal defense, mothers who experience a stillbirth or a miscarriage are blamed for that loss," said Dana Sussman of the National Advocates for Pregnant Women (NAPW).


Twenty percent of pregnancies in the U.S. end in a loss, says Harvey Kliman of the Reproductive and Placental Research Unit at Yale School of Medicine. He says over 90 percent of these losses are caused by genetic abnormalities, which are often undiagnosed. At least 38 states have laws that makes it a crime to harm a fetus, according to the National Conference of State Legislatures. Legal experts say that these laws were originally intended to stop violence against pregnant people. These "fetal harm" laws enhance penalties for crimes against a pregnant person. By treating a fetus as a separate crime victim, these laws recognize crimes against pregnant people as two separate crimes. In practice, they have been used to investigate and prosecute different forms of pregnancy loss, including miscarriages, stillbirths and self-induced abortions. Applying these laws in this manner criminalizes a pregnant person's behavior during the course of their pregnancy. And now that federal abortion protections have been abrogated, more people can be at risk of criminal charges for what they do — or don't do — while pregnant.