Pregnancy Criminalization
When Ms. March lost her pregnancy on March 1, 2023, women in South Carolina could still obtain an abortion until 20 weeks beyond fertilization, or the gestational age of 22 weeks.
Later that spring, South Carolina’s Republican-controlled legislature passed a ban that prohibits providers from performing abortions after fetal cardiac activity can be detected, with some exceptions made for cases of rape, incest, or when the mother’s life is in jeopardy. That law does not allow criminal penalties for women who seek or obtain abortions.
Solicitor David Pascoe, a Democrat elected to South Carolina’s 1st Judicial Circuit whose office handled Ms. March’s prosecution, said the issues of abortion and reproductive rights weren’t relevant to this case.
“It had nothing to do with that,” he told KFF Health News.
The arrest warrant alleges that not moving the infant from the toilet at the urging of the dispatcher was ultimately “a proximate cause of her daughter’s death.” The warrant also cites as the cause of death “respiratory complications” due to a premature delivery stemming from a maternal chlamydia infection. Ms. March said she was unaware of the infection until after the pregnancy loss.
Pascoe said the question raised by investigators was whether Ms. March failed to render aid to the infant before emergency responders arrived at the apartment, he said. Ultimately, the grand jury decided there wasn’t probable cause to proceed with a criminal trial, he said. “I respect the grand jury’s opinion.”
Ms. March’s case is a “prime example of how pregnancy loss can become a criminal investigation very quickly,” said Dana Sussman, senior vice president of Pregnancy Justice, a nonprofit that tracks such cases. While similar cases predate the Supreme Court’s Dobbs decision, she said, they seem to be increasing.
“The Dobbs decision unleashed and empowered prosecutors to look at pregnant people as a suspect class and at pregnancy loss as a suspicious event,” she said.
Local and national anti-abortion groups seized on Ms. March’s story when her name and mug shot were published online by The Times and Democrat of Orangeburg. Holly Gatling, executive director of South Carolina Citizens for Life, wrote a blog post about Ms. March titled, in part, “Orangeburg Newborn Dies in Toilet” that was published by National Right to Life. Ms. Gatling and National Right to Life did not respond to interview requests.
Ms. March said she made the mistake of Googling herself when she was released from jail.
“It was heartbreaking to see all those things,” she said. “I cried so many times.”
Some physicians are also afraid of being painted as criminals. The nonprofit Physicians for Human Rights published a report on Sept. 17 about Florida’s 6-week abortion ban that included input from 2 dozen doctors, many of whom expressed fear about the criminal penalties imposed by the law.
“The health care systems are afraid,” said Michele Heisler, medical director for the nonprofit. “There’s all these gray areas. So everyone is just trying to be extra careful. Unfortunately, as a result, patients are suffering.”
Chelsea Daniels, MD, a family medicine doctor who works for Planned Parenthood in Miami, Florida, and performs abortions, said that in early September she saw a patient who had a miscarriage during the first trimester of her pregnancy. The patient had been to four hospitals and brought in the ultrasound scans performed at each facility.
“No one would touch her,” Dr. Daniels said. “Each ultrasound scan she brought in represents, on the other side, a really terrified doctor who is doing their best to interpret the really murky legal language around abortion care and miscarriage management, which are the same things, essentially.”
Florida is 1 of the 10 states with a ballot measure related to abortion in November, although it is the only Southern state with one. Others are Montana, Missouri, and Maryland.