Spokane police investigated a woman’s miscarriage as suspected mistreatment of a child, but is it a crime?

In March, a woman miscarried in a Spokane hotel. Police investigated. They searched her room, told her they’d meet her at the hospital and found it suspicious when she did not show up. They filed a search warrant in hopes of finding her.

Considering the fetus her dependent, officers suspected that the woman could be guilty of criminal mistreatment of a child if she did not call 911 soon enough to potentially save her pregnancy, according to a warrant filed at the time.

Police later closed the investigation without pursuing criminal charges, but to Paul Dillon, a spokesperson for Planned Parenthood of Greater Washington and North Idaho, the move to investigate was “a huge violation of privacy and very stigmatizing.”

Sara Ainsworth, a Seattle attorney with national nonprofit IfWhenHow, which focuses on reproductive law, said she could not find any reason to suspect a crime in the warrant filed in Spokane County Superior Court.

“Under Washington law, everything about this is discriminatory and potentially violating of constitutional rights,” Ainsworth said.

IfWhenHow attorneys are in the process of researching all prosecutions in the country related to self-managed abortions and have not found one in Washington state, Ainsworth said. Ainsworth, who worked at Legal Voice in Spokane before moving to IfWhenHow, said she’d never seen a warrant like the one filed in Spokane County this spring.

The case arises as reproductive freedoms have been restricted in Republican-led Legislatures from Texas to Idaho, and with the U.S. Supreme Court seemingly poised to curtail or even overturn the abortion rights enshrined in the landmark Roe v. Wade case. While abortion remains legal in all 50 states, Ainsworth said under Washington’s Equal Rights Amendment, investigating pregnancy losses could be discriminatory as such investigations are necessarily biased against women, Ainsworth said.

“Here this person is suffering, an ambulance is called to make sure they’re OK, then the police show up and the police are surprised they didn’t check themselves into a hospital,” Ainsworth said. “This person needed their autonomy and grief to be respected and instead there’s a search warrant.”

But it’s complicated, said Brooks Holland, a criminal law professor at Gonzaga University who spoke with The Spokesman-Review in a personal capacity. When a fetus is born alive – not “viable,” but born living beyond a reasonable doubt – the fetus becomes a person under law. Parents have a legal responsibility to provide their dependents with medical care in an emergency.

Julie Humphreys, a spokesperson for Spokane police, said in a statement that police respond to all unattended deaths, including natural deaths, that happen outside of hospitals and some nursing home facilities. She said Spokane police don’t have a “specific policy around miscarriages/abortions as those are not crimes.”

“The parameters for investigating an infant death are the same as for any death,” Humphreys said. “We look at each case on its own merit and consider the totality of the circumstances surrounding a death.”

Humphreys said investigating officers were not available for interview.

The Spokane County Medical Examiner did not answer specific questions about this case and said in an emailed statement that the office “may at some point autopsy a fetus but that would depend on the circumstances surrounding the demise.”

While Holland saw a criminal mistreatment charge as “in the abstract, legitimate,” if the fetus was born alive, he said the bigger issue is that such investigations could become an “anti-abortion weapon” wielded against women, he said.

A practice of investigating pregnancy losses could also discourage women from seeking health care when they need it, Holland said.

“What are we saying as a community about the accountability of women to the state for unsuccessful pregnancies,” Holland asked, “if the burden is on the woman to show she is innocent rather than the burden being on the state to prove it was negligent?”

Ainsworth said miscarriages are extremely common. Between 1 in 10 and 1 in 5 known pregnancies end in miscarriage, according to the Mayo Clinic. In Washington, a woman cannot be prosecuted for allegedly causing her own miscarriage.

In the 1996 case State vs. Dunn, the state’s Supreme Court held that an unborn fetus cannot be considered a child for the purposes of criminal law. In the 1996 case, a woman’s cocaine use allegedly spurred her miscarriage and prosecutors sought a criminal mistreatment conviction.

“This really is just gross overreach and one of the most bizarre cases I’ve heard of,” Dillon said of the recent Spokane investigation. “It should be a wake-up call to the community. If you don’t think this can happen in Washington, it can happen in Spokane with our local law enforcement unfortunately.”

The warrant

On March 24, a woman in her early 20s miscarried in a hotel room in downtown Spokane. A 911 caller, unidentified in the warrant, told a dispatcher that the fetus was about five weeks along.

EMTs who arrived at the hotel room were all men and the miscarrying woman refused to let them in, asking for a female medic instead, according to the warrant. When the woman EMT arrived, she saw a dead fetus in the room’s toilet. She estimated the fetus to be about five months along, according to the warrant.

The EMT urged the bleeding woman to go to the hospital and the woman resisted before texting a friend who she said could drive her there, the warrant said.

In the meantime, three police officers arrived. According to the warrant, EMTs called police “due to the fact that they believed the female needed to get medical attention and that something needed to be done with the fetus which was still in the toilet.”

After knocking on the hotel room door to no answer, the three officers decided to enter the room to ensure “nobody was inside destroying evidence,” the warrant said.

The woman was gone. A police officer looked in the toilet and saw a fetus the size of a fist, the warrant said. At 18 weeks after conception, a fetus measures about 5½ inches and weighs about 7 ounces, according to the Mayo Clinic.

Though police left the room, an officer stood guard outside of it, making sure no one could come or go from it until police had been granted a warrant to search the room, according to the warrant.

Other officers asked a receptionist to give them a phone number for the registered guest of the hotel room. A woman picked up and said she would be bringing her friend who had just miscarried to the hospital shortly. Police said they’d meet the two women there but the women did not show up, the warrant said.

“There is concern about why the 911 call came in as the miscarriage being a 5-week-old fetus when in reality it was realistically somewhere around 20 weeks instead,” the end of the warrant said. “At this time it is unknown if it was a viable fetus at the time of delivery and whether or not (the woman) withheld the basic necessities of life by failing to call 911.”

‘Creating fear’

Dillon said he is not surprised by any of the miscarrying woman’s behaviors.

While police might have seen the woman’s request for a female EMT as stalling, Dillon saw it as an understandable response in a traumatic situation. Where police saw the woman’s failure to meet them at a hospital as a sign she was “lying,” according to the warrant, Dillon saw the potential for a scared woman avoiding interrogation or a woman without health insurance avoiding medical costs.

“Planning to meet her at the hospital, that’s threatening,” Dillon said. “It seems like overreach and intimidation and creating fear. We need to move away from this idea that police are the right response to every situation.”

Ainsworth pointed out that, across the country, most women prosecuted for pregnancy losses are people of color. The Spokesman-Review could not discern the race of the woman in the warrant nor reach her. She had no prior criminal cases in Spokane County.

“I expect that there’s a lot of education that we still need to do as a culture and as a state and as a community around the fact that, just because a pregnancy loss is experienced in a way you don’t expect, like someone alone in a hotel, that does not make it suspect and it’s not a crime,” Ainsworth said. “I would urge law enforcement and prosecutors to be extremely careful.”