The Criminalization of Stillbirths in the United States
Every day in the United States, sixty pregnancies end in fetal death after twenty weeks, otherwise known as a stillbirth. Incorrectly assumed to be a rare occurrence, stillbirths are common and result in trauma for the pregnant person and medical staff. People also falsely believe that stillbirths happen because of the pregnant person’s poor choices. Law enforcement collaborates with medical providers to criminalize stillbirths. This needs to be remedied at the root, starting with education for medical providers on the common occurrence of stillbirths and the lack of correlation between a person’s actions and the fetal death.
Stillbirths and Drug Use
Chelsea Beaker was charged with murder for her methamphetamine use during pregnancy, which the prosecution said contributed to her having a stillborn delivery. After 16 months in jail, her case was dismissed due to a lack of evidence that her drug use directly caused her pregnancy loss. Nearly fifty women since 1999 have been charged with manslaughter for being drug users whose pregnancies became non-viable. However, there is no scientific evidence that drug use, in this case, specifically methamphetamines, has an impact on the placenta; rather, the impact is on the user’s brain. In fact, in ninety percent of pregnancy loss cases, the cause was genetically intrinsic abnormalities.
The moral panic over pregnant people using drugs originated with the beginning of the War on Drugs and the racist characterization of so-called “crack babies” born to Black mothers addicted to crack cocaine. These mothers were blamed for their children’s developmental or neurological delays and deficits; even if the children were healthy, they could face imprisonment. New research exonerates these women, proving that while drug use while pregnant can be harmful, it has the same impact as smoking cigarettes while pregnant, which is completely legal.
In 2023, a Pregnancy Justice Report found that one in three “pregnancy-related arrests were first instigated by a medical professional, either directly or indirectly, reporting to law enforcement. Medical providers are unaware of the true frequency of stillbirths, falsely believing they occur rarely or only in the Global South. Anti-abortion activism creates this notion of fetal personhood from the moment of conception, that now the pregnant person is responsible for the life and death of the fetus, but that simply isn’t true. While people can choose to terminate a pregnancy, no one can choose to lose a pregnancy. The hegemonic view is that the moment you become pregnant, your body is no longer your own and that you are scrutinized for everything you do and don’t do. This may lead to more stillbirths as people become afraid to seek prenatal care or addiction care for fear of being charged with a crime; less prenatal care increases the likelihood of fetal death.
Comprehensive re-education on the biological reasons for stillbirths, leaning away from a carceral approach, bringing in mental health and bereavement counselors for patients and staff, can help decriminalize stillbirth deliveries.
Stillbirths Outside of the Hospital
Brittany Watts, a Black woman from Ohio, was charged with felony abuse of a corpse after she had a stillbirth delivery on the toilet in her home. In a traumatized state, she tried repeatedly to flush the fetus and used her plunger to push the fetus further down the pipes. In the days before, she went repeatedly to the hospital after being told her fetus was no longer viable and left each time with no follow-up care or counseling on how to deal with a stillborn fetus. So when this happened to her, she reacted illogically, and this is a trauma response. According to trauma-informed care professionals, “Initial reactions to trauma can include exhaustion, confusion, sadness, anxiety, agitation, numbness, dissociation, confusion, physical arousal, and blunted affect,” meaning people may act in ways that seem cold or malicious but are actually the body and brain trying to make sense of what just happened.
Undoing the systemic racist ways America views Black mothers will take generations; however, right now, states can commit to better prenatal care and education on the frequency of stillbirths and what to do if you deliver a dead fetus. This would require safe spaces like the miscarriage and abortion hotline, but specifically for stillbirths and stillbirth education that is free of the anti-abortion rhetoric.
Conclusion
Every stillbirth is different. Every pregnant person is different. Some may be heartbroken and traumatized at the death of their fetus, and some may feel relief because the pregnancy was undesired. Whether a person researched abortions and then suffered a loss, or if they were a drug user during pregnancy, neither should be convicted of a crime. Doctors need to focus on their patient, the person who has just delivered, and not make snap judgments that could destroy a person’s life. While the cases mentioned here today were pardoned, many people still sit in jail for having a pregnancy loss. And our Reproductive Justice movement owes them our full solidarity and to be advocates for those who experienced pregnancy loss, offering alternatives to the medical industrial complex that serves the police state, and build more grassroots care options, such as doulas and birthworkers. Massive education and awareness campaigns are needed to rewrite cultural stigmas and norms put forth by the anti-abortion movement. Together with education and advocacy, we can fight the criminalization of pregnancy loss and move towards a more equitable and trauma-centered world for those who lose pregnancies after twenty weeks.
Lily O (she/they) is a Black disabled woman whose gender is political and nonbinary. Lily is based in Boston, Massachusetts, and has been writing as …
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