In November of 2023, in the tumultuous aftermath of the Supreme Court’s Dobbs decision, Ohio codified reproductive freedom with the passing of Ballot Issue 1, a constitutional amendment that guaranteed an individual’s right to reproductive decision-making. While this legislation boasts a huge win for reproductive rights protections, one must question if legislature alone is enough, especially under the growing threat of right-wing authoritarian regime. A few weeks before Ballot Issue 1, Brittany Watts, a Black woman, faced a grand jury tasked with making the life-altering decision of whether her miscarriage was a crime. Legal discretion and medical discernment so easily become weapons in the criminalization of Black people and Black bodies with even the most progressive of legislature leaving so much up to interpretation.
For 19 hours, Brittany Watts waited with no information and no answers. After being told her baby would not be viable, Brittany expected that the natural conclusion of her pregnancy would be an abortion. While she waited, a medical ethics committee was convened to debate the legal implications of providing her care. Ohio law permits abortion prior to 22 weeks and if a threat to life. At 21 weeks and 6 days, Brittany’s pregnancy was one of many instances that do not neatly fall between legal lines. Across the nation, physicians and healthcare institutions terrified of the ramifications of gray areas like this case have had to turn to strategies of medical discernment that are so heavily colored by the legislative landscape. By law, Brittany was entitled to treatment, instead, she sat in a hospital room while physicians, lawyers, and administrators argued the risk analysis for her care. Because of what amounts to medical neglect, Brittany was forced to commit the ultimate crime, birthing while Black.
Over 10% of pregnancies end in a miscarriage. For Black people, the likelihood of pregnancy loss is twice as likely as for whites. The cause of most miscarriages is unknown or outside of any individual action, however, the criminalization of pregnancy loss has been a strategy for the fetal personhood movement. The criminalizing of fetal death and configuring of miscarriage as a moral failing conditions arguments for the right to “unborn life”. The Pregnancy Justice Report collected data on 1400 cases of pregnancy criminalization with an overrepresentation of the poor and Black women. In the year following the Dobbs decision, a record-breaking number of criminal pregnancy cases (210) occurred with 30 affecting Black women. Many of these cases involved drugs as the basis for fetal neglect and endangerment however for women like Brittany Watts being Black is crime enough.
The war against reproductive healthcare disproportionally affects Black birthing people as they are more likely to experience negative outcomes and have less access to quality non-biased care. Stereotypes and stigma drive obstetric violence and surveillance as Black women are often imagined to be unfit to birth and care for children. The reality of the gendered racism many experience during pregnancy must be considered in the case of Brittany Watts. A decision had to be made to treat her miscarriage as a crime but to be Black in this country is already considered deviant.
After two days of being overlooked and ignored while actively miscarrying, Brittany Watts went home to her mother, and the following morning found herself confronted with the loss of her pregnancy. When she returned to the hospital, the same white nurse who comforted her would later call the cops at the recommendation of the hospital’s risk management team. The story this nurse would tell 911 shapes the basis for criminalizing Brittany’s pregnancy loss. Brittany is presented as a Black mother with no baby, whose actions are described with little care for the context of the preceding two days. Based on the judgment of the same hospital that could not decide on a treatment plan, and the perceptions of a single nurse Brittany’s home became a crime scene and she was charged with a felony. Regardless of the language of any legislature, people decide who and what is a crime, and too often that person is Black.
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