Women Can’t Be Prosecuted for Miscarriage Under West Virginia Law, Attorneys Affirm

Miscarriage is already a physically and emotionally painful experience—one that affects an estimated 10 to 25 percent of all pregnancies. So when a West Virginia prosecutor recently suggested miscarriage could be a prosecutable offense, it understandably sparked fear, confusion and outrage. But reproductive rights attorneys say this interpretation of the law is misleading—and potentially harmful. Below, we unpack what the law actually says, what the moment reveals about reproductive care across America and what steps you can take to protect yourself if you experience pregnancy loss.

What Happened in West Virginia

Raleigh County Prosecuting Attorney Tom Truman recently made headlines across the country after he cautioned that “individuals who miscarry could face criminal charges, including felonies.” While Truman emphasized that he personally would not prosecute someone for a miscarriage, he said he felt compelled to share the warning out of an “abundance of caution” after ongoing conversations with fellow prosecutors.

Truman said the idea first came up several years ago during a discussion at a prosecutors’ conference, where some attendees speculated whether state laws related to the disposal of human remains could be applied to miscarriage cases. At the time, the conversation was largely theoretical—Roe v. Wade was still in effect—but in a post-Dobbs landscape where each state makes decisions around abortiion care, Truman said he believes the threat has become more real.

“It’s a different world now, and there’s a lot of discretion that prosecutors have, and some of them have agendas where they would like to make you an example,” Truman told CNN. “What’s changed is, Roe isn’t there anymore, and so that may embolden prosecutors in some cases,” he said. “I’m just trying to say, ‘be careful.’ ”

Truman went so far as to suggest that women should call law enforcement after they have a miscarriage. “Call your doctor. Call law enforcement, or 911, and just say, ‘I miscarried. I want you to know,’” he said.

What the Law Really Says

In the wake of Truman’s comments, the West Virginia Prosecuting Attorneys Association (WVPAA)—a group representing the state’s elected prosecutors—issued a statement refuting his interpretation and offering reassurance to the public.

“The West Virginia Prosecuting Attorneys Association wishes to clarify that recent public statements made regarding this subject do not reflect the consensus, official position, or legal interpretation of the Association, its Officers, Board members or members of its Legislative Committee,” the WVPAA wrote. “The WVPAA wants to make abundantly clear that any assertion that individuals who experience the unfortunate event of a miscarriage in West Virginia should be notifying law enforcement or face potential criminal prosecution is incorrect and not supported by West Virginia law.”

“The WVPAA does not agree with or support the idea that experiencing a miscarriage could, or should, trigger criminal liability. Such a position is contrary to both the law and the values held by prosecutors across our state,” the organization added. The group encouraged the public and media to rely on “verified, accurate legal information.”

Legal experts agree. “To make it really clear, there is no law that makes it a crime for someone to experience a miscarriage,” Elizabeth Ling, JD, MSW, Senior Helpline Counsel at If/When/How, a legal advocacy organization focused on reproductive justice, told The Bump. “Nothing in the law says that this is illegal.”

Even West Virginia’s law related to the “disposal of human remains”—the one loosely cited by Truman—does not apply to pregnancy loss. In an interview with The Bump, Dana Sussman, JD, MPH, Senior Vice President of Pregnancy Justice, a national nonprofit that defends the rights of people facing criminalization related to pregnancy outcomes, explained that a protective West Virginia Supreme Court decision further confirms there is “absolutely no basis in West Virginia law” for prosecuting someone over miscarriage.

What’s Behind Pregnancy Criminalization

Despite legal reassurances, the fear around miscarriage criminalization isn’t unfounded. Ling notes that what this story really highlights is how individual prosecutors can misapply other laws and create fear. “Prosecutors have discretion and they’re giving an immense amount of power to make these types of decisions,” she added.

Both Ling and Sussman pointed out that pregnancy criminalization often arises not from laws explicitly targeting miscarriage, but from the misuse of unrelated laws, such as those covering child abuse, drug possession or improper disposal of remains. “Prosecutors have decided in certain cases to interpret their laws in ways that are not based in case law," Sussman explained. "It’s only after the harm is done, after the arrest or after the charge, that one can assert their rights and say, ‘There is no basis in law for you to do this.’”

While pregnancy criminalization cases remain rare, they’re increasing. According to Pregnancy Justice, in the first year after the Dobbs decision, there were 22 cases in which people were criminally charged in connection with pregnancy loss, and more than 200 cases of pregnancy-related criminalization overall.

“There is no abortion ban that makes it a crime for someone to have an abortion or suffer a pregnancy loss,” said Ling. “But we’re seeing people punished when the state disagrees with how that loss happens, or when stigma makes someone suspicious in the eyes of the law.” Stigma and systemic inequities also play a role. Ling emphasized that Black, Indigenous, immigrant and other marginalized communities are often disproportionately criminalized, even when engaging in the same behavior as others.

“Miscarriage is deeply personal and very common,” said Sussman. “The fact that people now feel like they have to consider how to legally protect themselves during it—that’s the part that’s truly heartbreaking.”

How To Protect Yourself in the Event of a Miscarriage

No one should have to think about legal protection while experiencing pregnancy loss, but in today’s climate, it’s a concern more people are carrying. While every situation is unique Ling and Sussman offer up advice for peace of mind.

First, there are no legal requirements in West Virginia—or any other state—to report a miscarriage to law enforcement, and experts strongly advise against doing so. That said, Ling and Sussman emphasize that people should not hesitate to seek care when they need it.

“I would say if you have an OB or a GYN whom you trust, who you have a history with, you could call them first,” Sussman said. However in the case that your medical emergency requires the prescence of law enforcement she advises that there’s no need to talk with police if you’re not comfortable doing so. “Everyone has the right to not say a word to the police, and that is people’s right in these moments as well,” Sussman adds. “You can say that you want the police to exit the room or the ambulance while you talk to the healthcare providers.”

For those who feel a need to safeguard themselves, Ling enccourages them to reach out to the If/When/How hotline. “That is what we are here for—to go over what the laws actually say, where someone lives, what factors might be contributing to their legal risk, as well as ways that they could potentially mitigate risk if necessary.”

Sussman also recommended calling or texting the M+A Hotline (Miscarriage + Abortion Hotline), a free, confidential service staffed by physicians who can provide real-time support to anyone experiencing pregnancy loss or self-managing an abortion at home.

If you miscarry at work, it’s a good idea to inform a trusted supervisor or HR representative—if you feel comfortable doing so, Margo Ross Pillischer, JD, a partner and employment law attorney at Ross Scalise Employment Lawyers, told The Bump. “This way, if you are later discriminated against or retaliated against based on your past pregnancy or miscarriage, your company will not be able to avoid liability by claiming they did not know you were pregnant,” she explained. In most cases, your health information must be kept confidential under federal and state privacy laws.

Amid the growing fear, Sussman emphasizes that pregnancy criminalization cases are rare and women aren’t alone in this. “There are many, many people who are here and available to support people who may face unjust charges,” Sussman said. “All of these charges are unjust and there are organizations like ours who can help. We are watching very carefully to make sure that this doesn’t happen and that these kinds of cases are met with very strong defenses and opposition.”

Miscarriage and Pregnancy Criminalization Resources:

• If/When/How Repro Website and Legal Helpline: Free, confidential legal support on your reproductive rights.
• Pregnancy Justice: Legal advocacy and defense for people facing pregnancy-related criminalization.
• M+A Hotline (Miscarriage + Abortion Hotline): Anonymous medical support from licensed clinicians.

Please note: The Bump and the materials and information it contains are not intended to, and do not constitute, medical or other health advice or diagnosis and should not be used as such. You should always consult with a qualified physician or health professional about your specific circumstances.