After a Miscarriage, What Happens to the Fetus? The History is Complicated.

This essay is part one of a two-part series on fetal remains and cultural politics.

“Abuse of a corpse.” “Abandonment of a dead body.” “Concealment of the death of another.” These are charges that prosecutors have recently used to criminalize women who miscarry at home. On their face, they seem to indicate that prosecutors think the essential problem – the reason they are threatening women with jail time – is that they have not handled fetal remains as deceased persons.

Feminist legal interpreters of these cases have regarded these charges as, instead, pretextual excuses to arrest women for suspected abortions, for out-of-wedlock and concealed pregnancies, and for generally failing to be “good mothers.” In cases of stillbirths, they may serve as an excuse to investigate a woman for infanticide despite a lack of direct evidence. It is not, in fact, currently unlawful for women to cause their own abortions or to resent and reject their pregnancies, so prosecutors sometimes use these charges as a workaround. There had already been evidence of this misuse of the law, particularly aimed at low-income women and women of color, before the Dobbs decision unleashed abortion bans across large parts of the country. Since Dobbs this trend appears to be accelerating. The real purpose of these arrests, feminist critics say, is to scare women out of ending unwanted pregnancies and force them back into a domestic role subservient to men, and to punish those who get pregnant outside of a patriarchal structure of marital childbearing. It is to control women.

There is surely truth to this interpretation. I have made a version of it myself. But social media discussion of these cases suggests that it’s not the whole story – that a lot of people are genuinely upset by the idea of a fetus ending up in the trash, even when a miscarriage is spontaneous and a pregnancy is not viable, and they are inclined to punish a woman for it. And this concern seems to be increasing...

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