A coroner in Augusta, Georgia notified state authorities this week after water-treatment workers found fetal remains that had been flushed down a city drain. City coroner Mark Bowen determined that the remains were from a fetus about 20 weeks in gestational age. In Georgia, abortions performed past 20 weeks of pregnancy are illegal.
But Bowen insists he didn’t intend to subject the formerly pregnant woman to a criminal investigation when he sent the fetal tissue to the Georgia Bureau of Investigation. “My intention is to put the mother and fetus together, and make sure the mother’s okay,” he 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.”
The Georgia criminal code only implicates an abortion provider who performs the procedure after 20 weeks’ gestation, not a woman receiving abortion care. A physician in violation of this law stands to serve between one and 10 years in prison. Bowen was aware of this law when he sent the fetal remains in for a full autopsy and DNA testing: “It’s right on that line where it could or could not be [legal]. Did that baby take a breath and drown in the water? We don’t know.” Fetuses generally are not considered viable outside the womb until 23 or 24 weeks’ gestation.
There would be no reason for a doctor to send the fetal tissue down a drain—medical waste, a coroner would know, is usually incinerated or deposited in a designated landfill. It’s far more likely that the remains were the result of a miscarriage or self-induced abortion. Either way, even though Georgia law does not implicate women who terminate their pregnancies as criminals, any DNA testing on the fetal remains would be done for the purpose of finding the formerly pregnant woman, if only to identify a physician who performed an unlawful abortion. A Georgia woman who either lost a wanted pregnancy or terminated an unwanted one is at risk of being swept up in the justice system for doing something the law does not classify as a crime.
Using fetal DNA to find that woman would be a new and potentially troubling use of DNA databases, the Verge reports. Those databases are usually only used to find missing people or those suspected of criminal activity. Law enforcement officials will run DNA found at a crime scene to find either a match for a suspect or, in a practice some see as a violation of civil rights, a biologically related family member of a suspect who’s not in the database. In a missing-person case, a family member can submit her own DNA or some DNA from the missing person to test against DNA recovered from unidentified bodies in law-enforcement custody.
Neither of these accepted uses of DNA databases apply in the case of the fetal remains being analyzed in Georgia. Here, neither the fetus nor the two people with whom its DNA might match have committed a crime under Georgia law, and neither, presumably, has been reported as a missing person. If a physician did perform an illegal abortion, both the fetus and the formerly pregnant woman will be considered victims, not suspects. Using a victim’s DNA to find a potential perpetrator of a crime two degrees removed from the subject would be a significant expansion of the databases’ use and a possible violation of constitutional rights.
According to Monica Simpson, the executive director of the Georgia-based reproductive justice advocacy group SisterSong, cases like this one have a “chilling effect” among marginalized populations who already have reason to distrust the criminal justice and health-care systems. “Folks who may have experienced a miscarriage—especially as a person of color—are going to be concerned about going in and getting access to the care they need,” she said. “Can they trust those folks who are saying that they’re there to care for them?” In Virginia last month, an appellate court upheld the conviction of a woman who was sentenced to jail for the felony of concealing a dead body after experiencing a stillbirth at home. When she went to an emergency room for medical assistance, the doctor who examined her called the police.
Anti-abortion groups adopt a position of concern for pregnant women when they say women “deserve better than abortion” and won’t be criminalized if abortion is outlawed. But even now, at a time when abortion has been enshrined as a constitutionally protected medical procedure, women are already being shunted into the criminal justice system for miscarriages, stillbirths, and self-induced abortions. Even if the courts or individual state employees prevent those women from serving jail time, as one savvy district attorney did in Georgia in 2015, plenty of others will be scared away from seeking necessary reproductive health care. “The criminal justice system isn’t designed to have the best interest of the most marginalized in mind. We’ve seen that from history, from the criminalization of pregnant women during substance abuse to shackling women while they’re pregnant or in active labor,” Simpson said. “If you’re looking at a system that keeps showing you it’s not invested in your health, then people are going to start to rely on themselves.”