A grand jury in Ohio is expected to decide Wednesday whether to indict a woman who miscarried a nonviable fetus at home and has been charged with abuse of a corpse in what experts say is an extremely rare interpretation of a state law.
The woman, Brittany Watts, 34, of Warren, Ohio, was arrested in October after passing a fetus in her bathroom and trying to flush the remains down the toilet. The case has been before a Trumbull County grand jury since November. If convicted, Ms. Watts, who is Black, could face up to a year in prison. She has pleaded not guilty.
Although records show that Ms. Watts spontaneously miscarried, a finding that the state has not challenged, the case has come under scrutiny by lawyers and reproductive health advocates who say that prosecuting her is baseless and may deter other women who miscarry from obtaining medical attention they need.
The charge came a month before Ohio voters enshrined the right to abortion in the State Constitution until the point of fetal viability, 22 weeks in the state, as well as the right to contraception, fertility treatment and miscarriage care.
The measure, which went into effect in early December, was part of a winning streak for abortion-rights groups after the Supreme Court overturned Roe v. Wade in June 2022. Ms. Watts is being “demonized for something that goes on everyday,” her lawyer, Traci Timko, said before Judge Terry Ivanchak of the Warren Municipal Court last month.
But Judge Ivanchak, who has since retired, found probable cause to send the charge to a grand jury for consideration.
Ms. Watts and Ms. Timko did not return multiple requests for comment.
What happened?
According to a report by the Trumbull County Coroner’s Office, Ms. Watts was 21 weeks and five days pregnant when she was admitted to St. Joseph Warren Hospital in Youngstown, Ohio, with vaginal bleeding on Sept. 19. Doctors determined that her water broke prematurely and her cervix became dilated; Ms. Watts also had a significantly elevated white blood cell count.
Doctors were able to detect cardiac activity but “recommended she be induced and deliver the fetus despite its nonviable status,” the report said, because she was at significant risk of maternal death, sepsis or “complete placental abruption with catastrophic bleeding.”
On her initial visit to the hospital, Ms Watts left after waiting eight hours for a hospital ethics panel to determine whether to induce her pregnancy without legal ramifications because she was on the cusp of Ohio’s viability timeline, 22 weeks, Ms. Timko told The Associated Press. The hospital declined to comment.
Ms. Watts went home to “process the information she was told,” the coroner’s report said. She returned the next day with the same symptoms and left a second time without treatment.
On Sept. 22, Ms. Watts passed the fetus at home alone in her bathroom and returned to the hospital, where she received a dilation and curettage, also called a D and C, to remove the placenta, according to the report. The hospital notified the Warren City Police Department about the miscarriage and “the need to locate the fetus.”
The police found the fetus clogged in her bathroom toilet, the report said, noting that Ms. Watts had told the police that she disposed of what she believed to be the remains in a bucket in her backyard. The police then took the entire toilet out of the home and took it to a morgue, “where it was broken open” to retrieve the fetus, the report said.
The autopsy report found that the fetus had died in utero — before delivery — because of complications of premature rupturing of the membranes.
The police charged Ms. Watts on Oct. 5 with abuse of corpse as a felony under a law adopted by the Ohio Legislature in 1996. The case is being prosecuted by the Warren City Prosecutor’s Office.
What’s the law in Ohio?
The law in question bars the treatment of “a human corpse in a way that the person knows would outrage” either “reasonable family sensibilities,” resulting in a misdemeanor, or “community sensibilities,” resulting in a felony charge.
“From a legal perspective, there’s no definition of ‘corpse,’” Ms. Timko, Ms. Watts’s lawyer, said in the interview with The Associated Press. “Can you be a corpse if you never took a breath?”
Ohio law determines fetal viability starts at 22 weeks. Ms. Watts arrived at the hospital at 21 weeks and 5 days.
Joshua Dressler, a former criminal law professor at Ohio State University, said the statute being used by prosecutors was “rarely enforced” and typically involves the abuse or mutilation of a human being. But in common law, a fetus does not become a human being until birth, he said, and since the fetus died in utero, “this would, to me, not constitute being a human corpse.”
“This is an entirely different way of understanding the meaning of the term corpse,” he said. “I think this is a serious, serious problem with the prosecution on those grounds.”
Jessie Hill, a law professor at Case Western Reserve University who has worked on abortion rights cases, said Ms. Watt’s case wades into the debate over fetal personhood.
“By using something like abuse of corpse as a hook to prosecute this case, it kind of assumes the conclusion that this fetus was a person or the equivalent to a born person,” she said. “That’s definitely a troubling aspect of the case.”
Ms. Hill also noted “pregnancy outcomes for people of color are so much more likely to be questioned and to result in criminalization.”
Had Ms. Watts miscarried at the hospital, Ms. Hill said, the fetus would not have been treated as a corpse.
Why is it being prosecuted?
Last month, Dennis Watkins, the Trumbull County prosecutor, a Democrat, said his office was “duty bound” to follow Ohio law and move forward with a grand jury proceeding.
But Michael Benza, a criminal law professor at Case Western, said it was up to the prosecutor to decide. He said “there are a lot of problems” with the prosecutor’s case, including the definition of a human corpse. But the prosecution’s biggest challenge might be in the vagueness of the language.
“If my students wrote this statute,” he said, “they would fail.”
First, prosecutors must make a case for why the remains constitute a human corpse. They’ll also have to persuade the jury that Ms. Watts’s actions brought “outrage” to the public.
The prosecution’s interpretation of the statute exceeds its intentions, Mr. Benza said, but said public pressure may have prompted the prosecutor to place charges.
Ohio Physicians for Reproductive Rights sent a letter to the prosecutor, Mr. Watkins, “protesting the unjust prosecution” of Ms. Watts, and urged him to dismiss “the unwarranted” charge. More than 4,000 health care workers and community leaders signed the letter.
Ms. Hill, the reproductive health lawyer, said Ms. Watts’s case may be a sign of things to come in Ohio in the wake of the constitutional amendment to protect reproductive health care, and said there could be more efforts to criminalize miscarriages and other pregnancy outcomes.
