WHAT TO EXPECT WHEN YOU'RE NO LONGER EXPECTING: HOW STATES USE CONCEALMENT AND ABUSE OF A CORPSE STATUTES AGAINST WOMEN.

• Author: Chandra, Nisha

Abstract

Since the (1690) s, women in the United States have been arrested and punished for experiencing miscarriages and stillbirths--pregnancy outcomes that are completely normal. This practice continues to the modern day, where prosecutors charge women with concealing a birth, concealing a death, or abuse of a corpse for the actions they take after experiencing pregnancy loss. This Note argues that these statutes were originally enacted to punish women who had sex outside of marriage and are now being used to control women, mostly women of color and poor women, for not adhering to society's idealized vision of femininity and motherhood. The use of these statutes advances notions of fetal personhood and will ultimately have a chilling effect on the availability of abortion through telemedicine. The Note suggests that while repealing these laws would help, the best solution is to approach the issue through a reproductive justice lens--namely, increasing the availability of education and medical services for women.

INTRODUCTION

One of the most heartbreaking events in a woman's life can be the loss of her pregnancy. (1) The last thing she expects is that this loss can result in her being criminally charged and even jailed. Yet this outcome is a sad reality for numerous women who have experienced miscarriages or stillbirths. (2) A miscarriage is defined as a loss of pregnancy before twenty weeks of gestation, whereas a stillbirth is a loss of pregnancy after twenty weeks. (3) Pregnancy loss is extremely common; one study estimated that, in total, about thirty-one percent of all pregnancies end before delivery. (4) The Centers for Disease Control and Prevention (CDC) estimates that there are 24,000 stillbirths in the United States each year, or about 5.89 stillbirths per 1,000 births. (5) However, it is often difficult to pinpoint the cause of a specific miscarriage or stillbirth. (6) Even though both pregnancy and pregnancy loss are common and natural, a review found that between 1973 and 2005, there were at least 413 cases in the United States of pregnancy or pregnancy loss being the basis of an attempted or actual arrest, detention, or forced intervention. (7) The majority of those cases involved allegations that the pregnant woman used illegal drugs while pregnant. (8) But there is a subset of cases where women were charged not for their actions during pregnancy, but instead based on their post-birth actions. This Note discusses cases where women experienced a miscarriage or stillbirth and were later charged with the state crimes of concealing a birth or death, or a crime related to disposal of a corpse. It then explains the factors that may have led to these women's actions. Additionally, this Note argues the state's condemnation of their actions is based in disapproval of women who do not adhere to society's ideas of womanhood and advocates for a non-criminal approach to women who experience pregnancy loss.

Part I explores state laws regarding the concealment of births and deaths and discusses who is required to report stillbirths. It then explores state laws regarding abuse or improper disposal of a corpse. Part I then discusses the reasons why a woman may commit concealment or abuse of a corpse. Finally, Part I presents some case examples of women charged with these crimes. Part II analyzes how and why women of color and economically disadvantaged women are disproportionately charged with these crimes and examines the potential consequences for abortion access when these laws are applied to women experiencing normal pregnancy loss. Part III examines two potential alternatives--repealing these statutes or increasing education and access to healthcare--and concludes that a shift away from the legal system towards a social justice framework would be most successful.

1. Background: Laws Against Concealing a Birth, Concealing a Death, and Abuse or Improper Disposal of a Corpse

   This Part explores the statutes prosecutors use to criminalize women's behavior during and after pregnancy loss. Part I.A.1 discusses how state laws criminalizing the concealment of births and deaths of a fetus were enacted to punish both infanticide and sex outside of marriage. Many of the current iterations of these laws still appear to have these goals. Part I.A.2 delves into the lack of clarity on when women must report their stillbirths. Part I.B examines how state laws criminalizing abuse of a corpse or improper disposal of a corpse were enacted for the benefit of public health and sensibilities. Finally, Part I.C explores the motivations women might have for concealing a birth or death or disposing of a corpse in secret, and Part I.D presents some examples of women who have been charged with these crimes.

   1. Concealment Statutes

      1. The History and Purpose of These Statutes

         English law has a long history of punishing women for concealing a birth or concealing a death due to the suspicion that the woman had done something wrong. The connection between concealment and infanticide stretches at least back to the seventeenth century, where concealment of a dead newborn born out of wedlock was presumptive evidence of murder. (9) England enacted the Act to Prevent the Destroying and Murdering of Bastard Children in 1624, which codified this presumption of murder. (10) This Act, however, did not criminalize concealment of birth or death by married women because these women were not assumed to have murderous intent. (11) Many married women who did murder their children during this period were excused based on the defense of an impaired mental state, which would today be diagnosed as post-partum psychosis. (12)

         The American colonies, carrying on English tradition, enacted statutes beginning in 1696 to punish the concealment of the birth or death of a bastard. (13) Although the number of executions may likely be higher, surviving records for executions of women show that, in the eighteenth century, at least four women were executed in the United States for the crime of concealing a birth, with the last execution in 1785. (14) These prohibitions continued after the Revolutionary War. (15) A Massachusetts statute, adopted in 1785, began as follows:

         An ACT to prevent the destroying and murdering of Bastard Children.

         WHEREAS many lewd and dissolute women, being pregnant with bastard children, who, regardless of natural affection, and to avoid shame and escape punishment, do conceal their pregnancy, and the birth and death of such children, by means whereof many of them perish for want of necessary and usual assistance, and it cannot be known that they were not murdered. (16) The language of the statute clearly indicates that the drafters were concerned about the state's inability to prove infanticide. (17) But the references to "lewd and dissolute women" and "shame" also show that the state was reacting to the perceived moral transgression of premarital sex. (18) This connection was further bolstered when the Massachusetts law was codified in 1835, and the concealment provisions were placed in between provisions discussing fornication, polygamy, and prostitution. (19) Legislatures of twelve other states connected concealment with abortion by enacting concealment statutes as part of or contemporaneously with abortion statutes. (20)

         To this day, many states (21) still have statutes in place that criminalize concealing either the birth or the death of a fetus. (22) In Arkansas, a person is guilty of the felony of concealing a birth if they hide the corpse of a newborn child in order to conceal their birth or "prevent a determination of whether the child was born alive." (23) Wisconsin's statute on concealing the death of a fetus specifically criminalizes "concealing] the corpse of any issue of a woman's body with intent to prevent a determination of whether it was born dead or alive." (24) The language of these statutes, along with those of other states, (25) indicates that these laws were intended to prosecute people who killed their newborns and concealed the fact that a birth or death took place. (26)

         However, the laws do not specify the time period a woman has to inform someone of the birth before her actions are considered "hiding" or "concealing." (27) These statutes also don't mention how developed the fetus must be before the statute is triggered. (28) Women might miscarry very early on in their pregnancies, before they know they are pregnant, and mistake the miscarriage for a heavy period, (29) but they still could be prosecuted for concealment. Additionally, these laws sometimes continue to rely on seventeenth century assumptions. The Rhode Island statute, for instance, was enacted in 1938 and applies only to concealing the birth of a child born out of wedlock, (30) presumably because of the old theory that the shame of having a child out of wedlock might drive a woman to feticide. (31)

         Laws criminalizing the concealment of the birth or death of a fetus seem primarily concerned with people hiding that a newborn died due to homicide, with perhaps a secondary intention to prevent the public health consequences of improper disposal of human remains. (32) Some of these laws do not appear to have been enacted in order to punish women who experienced normal miscarriages or stillbirths. (33) But they may have this unintended consequence, in part because they do not set out a reporting timeline women must meet before their actions are considered "concealment." (34)

      2. Miscarriage and Stillbirth Reporting Requirements

         The Model State Vital Statistics Act and Regulations (Regulations) provides guidance to states on how to collect data on vital statistics, (35) which includes data about births, deaths, terminations of pregnancy, marriages, and divorces. (36) The Regulations, issued by the U.S. Department of Health and Human Services, were created to "promote uniformity among States in definitions, registration practices, disclosure and...