The Curious Case of the Coroner, the Telltale Sewer, and DNA Testing of Fetal Remains

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Commentary Human Rights

The Curious Case of the Coroner, the Telltale Sewer, and DNA Testing of Fetal Remains

Farah Diaz-Tello

New technology, coroners like the Georgia one who is trying to ID fetal remains found in the sewer, and like-minded prosecutors mean that people's plumbing might one day tell whether they had a miscarriage—and open them up to law-enforcement scrutiny.

Last week, it came to light that a coroner in Augusta, Georgia, sent fetal remains discovered in the city sewer system to the Georgia Bureau of Investigation for DNA testing to try to discern the identity of the person who had the miscarriage.

While this is an alarming turn of events—possibly the first time law enforcement has publicly announced intent to use DNA to look for a person who has had a miscarriage or abortion—it is unsurprising in the context of the documented pattern of police and prosecutors trying to find novel ways of punishing people for losing or ending pregnancies. Most recently, a Virginia woman was charged with “concealing a dead body,” a felony, after disposing of a fetus miscarried at around 30 to 32 weeks gestation. She pleaded guilty but challenged the applicability of the statute to fetal remains; the Court of Appeals of Virginia ruled against her, upholding her sentence of five years, with five months to be served behind bars. While the ruling is not binding precedent, it creates the possibility that other prosecutors will follow suit, using this law to punish people they believe were responsible for intentionally or unintentionally causing a miscarriage.

Augusta Corner Mark Bowen tried to reassure media that the focus of the investigation is the safety of the person who had the miscarriage. Bowen’s public statement was both disingenuous and chilling: “I just want to make sure [the person who had the miscarriage] 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.”  Whether the investigation leads to a criminal investigation is not within Bowen’s control, and police have thus far not commented on the situation.

But if the DNA test is being carried out to save a person from dying of hemorrhage or sepsis, it’s unlikely to be successful: The DNA test could take weeks or up to a year. Furthermore, it is presumptive—if not vindictive—for the coroner to force the fetal remains back into the possession of the person who lost the pregnancy.

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However terrifying the idea of the state showing up at someone’s door to return the expelled contents of their uterus might be, even if the DNA test turns up a match, there is likely no valid charge that would apply for ending or losing a pregnancy. A Georgia prosecutor publicly recognized as much in 2015 when Kenlissia Jones was arrested for homicide and then had her charges dropped after she allegedly ended a pregnancy using pills obtained from the internet.

Georgia, like the vast majority of states, does not have a law criminalizing ending one’s own pregnancy or losing a pregnancy for any reason. And while the last decade has seen a proliferation of state laws governing the disposal of fetal remains, these laws—including Georgia’s—are aimed at imposing cost and burden on abortion providers. They do not provide direction to, much less criminalize, people who have a miscarriage or stillbirth.

But make no mistake. Even without a law on the books that could criminalize someone who disposed of fetal remains, this investigation is about punishment. Bowen appeared concerned that the fetus appeared to be at approximately 20 weeks gestation, which is the legal limit for clinics to provide most abortions in Georgia (this provision unconstitutionally restricts pre-viability abortions and says nothing about miscarriages, regardless of the potential cause).

According to the Augusta Chronicle, an autopsy was set to take place last Friday, and Bowen anticipated that it might provide insight as to whether the fetus was delivered alive and “took a breath and drowned in the water.” While this is likely untenable in that gestational range from a medical and scientific standpoint, it would fit a pattern of trying to use junk science like the discredited “fetal lung float test” to blur the line between a live delivery and a stillbirth to find a way to punish people, as we saw in Purvi Patel’s (now partially-overturned) simultaneous prosecution for feticide and leaving a newborn to die. And even if there is no attempt to prosecute the person who had the miscarriage, arresting them would also fit the historical pattern of trying to expose and prosecute abortion providers by detaining and interrogating their patients.

The use of DNA testing to try to connect fetal remains with pregnant people are particularly concerning amid revelations that law enforcement used a genealogical database to track down a suspected serial killer in California, and that even if a person is not on a list like the FBI’s CODIS database, law enforcement can use partial matches to find their family members. And it seems possible in the not-too-distant future that people’s plumbing might start to inform on them: Consider this mention, in the final seconds of an otherwise-banal NPR segment about internet-enabled “smart sewers,” that a startup company has developed sewers with the ability to test “for early warnings of opioid use.” The possibility of internet-connected sewers alerting authorities of their contents threatens a whole new level of surveillance of pregnant people.

Bowen’s approach to the discovery of the fetal remains reveals the danger of law enforcement interference into people’s reproductive lives. It is not a crime to have an abortion or a miscarriage, but the coroner apparently believes that concern for the wellbeing of pregnant people means that any miscarriage that takes place “not in medical care” must be investigated. In a state that is only recently seeing progress in the massive backlog of untested rape kits and which leads the country in pregnancy-related deaths, the sudden attention and allocation of resources is suspect. To make matters worse, the idea that a miscarriage warrants a criminal investigation and DNA testing is likely to push people away from health care in the event of a miscarriage or complication from a self-managed abortion.

The investigation in Georgia is the same old story we’ve now seen repeated dozens of times over the last two decades. But with the aid of modern technology and increasingly mean-spirited tenacity from prosecutors, the ante has been raised significantly. It has always been the case that a prosecutor on a mission to punish someone for ending or losing a pregnancy would find a way to do so, regardless of what the law says. This investigation will show just how far the state will go to support these efforts.