A person holding a sample of DNA inside of a vial.

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A New Legal Tactic Could Make Miscarriage a Crime

Overzealous pro-life lawyers are trying to prosecute women whose pregnancies terminated, using fetal DNA. But can they distinguish abortions from miscarriages?

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Last month, Joseph DeAngelo, better known as the Golden State Killer, who had been at large for 40 years, was caught, traced through the DNA of a distant relative found via a private database. This was good news for survivors and families of his victims, and a new step in finding justice for victims of violence. But what happens if DNA gets used to track down a “suspect” if there may not have even been a crime? This is a new danger for those who can get pregnant thanks to the work of anti-abortion politicians throughout the country.

Recall Purvi Patel who was arrested in 2015. And Anna Yocca and Kenlissa Jones. And Michelle Roberts, who was arrested two years later, in 2017. All ended up charged by zealous prosecutors, who were punishing them for allegedly self-inducing abortions. But what about the likely thousands of pregnant people who quietly, successfully, and without complications manage to self-induce outside of an official medical setting? Because now eager coroners are seeking new ways to penalize them, and the rise in “fetal remain” laws is helping them considerably.

In an alarming report from The Verge, an Augusta, Georgia, city coroner has announced that he is investigating the fetal remains that were found lodged in the city’s wastewater equipment. The investigation involves a full autopsy, as well as a DNA test that he hopes will identify the person who birthed the fetus.

“My intention is to put the mother and fetus together, and make sure the mother’s okay,” coroner Mark Bowen  told The Verge. “I just want to make sure she isn’t getting an infection or bleeding out, and then I would like to connect them back together so she can have her miscarried child or aborted child properly disposed of.”

But Bowen also stated that the autopsy of the remains would “make a more decisive estimate of the age of the fetus, which will determine whether criminal charges could be brought against medical providers involved.” And by “medical providers” in this case, Bowen simply cannot be referring to anyone other than the person who was pregnant.

Bowen was far less ambiguous about his intentions when speaking with the local Augusta paper, where he noted that he’s asked the Georgia Bureau of Investigations for a fast track of the DNA analysis so they can get moving on next steps. “Anytime you find a baby at a sewer plant, it’s suspicious,” he told the Augusta Chronicle. “DNA takes a long time anyway, but the GBI were willing to move it up and I’m going to ask them to help us try to move it forward as quick as possible.”

Despite claims to move quickly, the GBI is unlikely to return an answer any time in the next six months. It kind of makes you wonder how Bowen believes a DNA test is really supposed assist a person who is potentially “bleeding out.”

Of course, Bowen isn’t the only one who has claimed “I’m just worried about the mother” as an entry to investigate a potential miscarriage or self-induced abortion. In 2014, a Dallas high school opened a massive investigation into a stillborn fetus found abandoned in a girls’ bathroom. The person who’d birthed the fetus was finally identified and then dismissed without charges once police determined for certain she “miscarried and that no criminal offense took place.” A year earlier, another investigation over fetal remains was launched when a teen miscarried at a Dallas hospital.

And there are other incidents: a Berkeley fetus is being investigated when it was discovered washed ashore in the Bay; Wichita Falls, Texas, police are investigating a fetus found in a laundry cart at a hospital; Oklahoma authorities are looking into one found in a sewer plant; and New York police are investigating two fetuses that were abandoned in the city within two days of one another. Each of these events occurred just since mid-March.

Even when investigations show that there was no live birth at all, some sheriff’s departments are eager to ID the pregnant person anyway. Earlier this year in Baton Rogue, Louisiana, a fetus was also found in a wastewater plant, and the coroner eventually determined it to be approximately 20 weeks along and to have never taken a breath—meaning it was not alive when it was delivered. Those facts aren’t stopping the sheriff’s department from trying to locate the person who gave birth. Despite stating they would not file criminal charges in the case regardless of the results, the coroner admits he is still doing toxicology tests and other tests to get a “better picture of what caused the death of the fetus,” and determine whether it was an abortion or a miscarriage—as if an autopsy could distinguish between the two.

It’s clear that overly zealous police departments are determined to investigate every set of fetal remains for a possible crime—and unfortunately their choices grow each year. We now have murder, child neglect, feticide, attempted procurement of a miscarriage, “producing an abortion or miscarriage,” “possession of a dangerous drug.”

But adding a DNA search to obtain the identity of the person who gave birth? Well that is a new and very frightening twist. It dispels any claims that the authorities have interest in the person for medical reasons, instead investigating the incident as a potential crime unless proved otherwise.

As reproductive-rights advocates have pointed out for decades, investigating bad birth outcomes for potential criminal acts like self-induced abortions is always an effort that will harm marginalized communities the most. For those who are young, poor, uninsured, and of color, pregnancy is already a higher risk proposition that involves less medical care and prenatal care, more likelihood of physical harm to the pregnant person and lower birth weights, premature births and yes, miscarriages and stillbirths. The very same systematic medical disparities that affect those who are pregnant in those communities are now being used to open them up as suspects to illegal activity like alleged self-induced abortion whenever a pregnancy does fail.

With these factors already against them, the idea of being able to do a DNA match in the event that fetal remains are discovered takes on an even more alarming tone. Bowen is using CODIS—a statewide database of DNA samples—to track down the person who gave birth, which limits his pool in a very specific way. “If the mother (of the fetus) has ever had any issues, [the database] would cross reference it in CODIS and would give us a positive ID once we locate her,” he told the Augusta Chronicle.

Any issues. As determined by whom?

As The Verge notes, the federal DNA database can only be used if the DNA of the suspected perpetrator is offered. But any DNA can be used to do a search just on Georgia samples, and “As of December, the state database contained more than 347,000 DNA profiles, primarily taken from identified criminals.” In other words, the coroner and sheriff are using DNA to find suspects in a crime that so far doesn’t even exist, through a database of people that have been suspected of committing crimes.

And that right there is racism in action. Communities of color are already subject to more charges than white communities due to racial profiling by officers and the incessant meddling of white folks who insist that using the bathroom, sleeping in a public common room at a university, or being a little too quiet during a campus tour is now an offense that demands arrest. Now this increase in unnecessary detainments subjects them to a higher likelihood of being accused of potential illegal abortion, too. There is little chance that if successful, this DNA snooping wouldn’t be used in other locations, too. In fact, Augusta is embarking on a disturbing precedent that could easily be replicated any place products of conception are found. That is a possibility that alarms Farah Diaz-Tello, Senior Counsel for the SIA [Self-Induced Abortion] Legal Team.

“Using DNA databases to connect fetal remains to the individuals who miscarried will only worsen the inequities in criminal prosecutions,” Diaz-Tello told DAME. “Over-policed communities—people of color, people in poverty, and people participating in informal economies like sex work—routinely have their DNA collected for law enforcement databases during arrests, even if they do not result in charges. But people of privilege are afforded a greater expectation of privacy in their health information and are less likely to appear in such databases. So not only will a person whose fetal remains are identified bear the stigma of potentially having ended a pregnancy, they will essentially be presumed to be guilty because of their presence in the database.”

Even worse, the use of a database to find potential genetic matches could put the person who gave birth in serious physical danger, too. Partial matches could uncover family related to the person who gave birth or even the person who impregnated them. If police contact those matches and disclose the miscarriage in the search for the pregnant person, that could open up possibilities of domestic or familial violence if that person were hiding the pregnancy or its outcome.

Unless the intention is to press some sort of criminal charges against the person who gave birth, there is literally not one good reason to use a DNA search to find the person’s identity—and a long laundry list of bad ones. Yet just like mandatory drug tests on all mothers during prenatal care, birth, or their babies soon after, authorities continue to seek out new ways to criminalize the act of being able to get pregnant.

And through it all, as they drag women to jail, they will continue to tell use they are just looking out for our safety.

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