More Than 150 Democrats Urge Biden to Help Stop the Criminalization of Pregnant People

More than 150 Democratic members of Congress have written to President Biden, Attorney General Merrick Garland, and Health and Human Services Secretary Xavier Becerra with a demand: Do more to prevent the criminalization of pregnant people post-Dobbs and to support those who are unfairly targeted by law enforcement. 

The letter, dated Thursday, highlights the case of Brittany Watts, the 34-year-old Black woman from Ohio who was charged with a felony in October over her handling of an at-home miscarriage; when she later sought care at a hospital, a nurse reported her to police. While a grand jury ultimately declined to indict Watts earlier this month, the letter notes that “the fact that Ms. Watts faced degrading law enforcement interrogation and that such a case was even brought forward at all is alarming and cruel.” It also emphasized that—as I reported earlier this week—Watts’ experience is indicative of broader inequities related to the criminalization of pregnant people, with women of color far more likely to face “punitive responses” from healthcare professionals. That includes the criminalization of adverse pregnancy outcomes, including miscarriages—which, as in Watts’ case, can be mistaken for self-managed abortions.

Spearheaded by members of the Democratic Women’s Caucus, the letter urges federal officials to provide “educational, financial, and legal services support to any person who experiences or is threatened with pregnancy criminalization,” and to reduce the likelihood of criminalization in the first place through three specific measures: investigating prosecutions of pregnant people as forms of sex-based discrimination; reminding hospital and medical staff of patients’ rights to privacy under HIPAA; and enforcing the section of the Affordable Care Act that prohibits discrimination based on sex when federally-funded healthcare personnel “improperly report to law enforcement when patients miscarry, terminate a pregnancy, or seek other pregnancy-related care.” 

The letter also notes that—as my colleague Katie Herchenroeder and I reported in November—the fallout from the Dobbs decision “has only escalated efforts to charge people with crimes related to their pregnancies.” As Katie and I wrote a few months ago: 

On top of abortion clinics closing, obstetrics programs and maternity wards—from Alabama to Idaho—have also shuttered, putting providers out of work and leaving 1.7 million women living in counties without abortion or maternity care access, according to an analysis conducted by ABC News and Boston Children’s Hospital. Providers who are still working risk losing their license or going to jail if they miscalculate what thin exceptions to abortion bans mean for the care they can give. And with some bans incentivizing people to report those having abortions to law enforcement, criminalization is poised to get worse.  

Ultimately, the lawmakers wrote, “When individuals like Ms. Watts cannot seek medical care for pregnancy-related conditions without fear of discrimination and criminalization, our health care system and our justice system have failed.”

A Department of Justice spokesperson declined to comment on the letter. Spokespeople for the White House and the Department of Health and Human Services didn’t immediately respond to requests for comment on Friday afternoon from Mother Jones. 

The timing of the letter comes as the Biden administration has made a renewed effort to campaign on their support for abortion rights as the November election nears. That effort is facing its own challenges, as well as criticism from some reproductive rights advocates who say that the Biden campaign is too narrow in its focus on mostly legal rights to abortion and contraception. These critics have called on Biden to embrace reproductive justice, a broader framework that goes beyond the right to abortion, to include the right for people to “maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” At Biden’s “Restore Roe” rally in Virginia last week, for example, which commemorated the 51st anniversary of Roe v. Wade, protesters confronted him for continuing to support Israel in its war on Palestine, specifically noting that pregnant Gazans are miscarrying and struggling to access care, as I reported back in October.

While Democrats are far from united on their stances on Biden’s approach to the war, the number of lawmakers who signed onto Thursday’s letter suggests that there may be broader support for campaigning on reproductive justice issues. Supporters of the letter also hinted at this: “Across the country, we’ve seen pregnant people shamed, targeted, stigmatized, and criminalized for giving birth, experiencing a miscarriage, and having abortions,” Jamila Perritt, an OB-GYN and the president and CEO of Physicians for Reproductive Health, said in a statement. “As a physician, I cannot over-emphasize how dangerous this is for individuals, families, and communities…medical standards, not politicians, judges, or police, should guide health care.” 

Indeed, as the reproductive rights legal advocacy organization If/When/How said in a tweet earlier this week in response to my reporting about Watts: “When care providers police their patients, they only make people afraid to get the care they need.”

Update, February 2: This post has been updated to reflect a comment received from a spokesperson for the Department of Justice.