In pro-choice Nevada, obscure legislation sends ladies to jail for late-term being pregnant loss – The Nevada Impartial
Patience Frazier was pregnant. But she didn’t want to be.
She took a pregnancy test in February 2018. It was positive. She didn’t know how far along she was — she had irregular periods and her body looked different than during her previous pregnancies. The furthest along she could have been was four months, she estimated.
The closest abortion center to Winnemucca, where she lived, was more than two hours away. Frazier’s car was broken, and she couldn’t find a ride to Reno.
Then 26, she looked to the internet for home remedies for an abortion. She ate large amounts of cinnamon every day for the next month. She smoked marijuana daily. She lifted heavy objects.
On April 21, she had a stillbirth, or a pregnancy loss after the 20th week, at her house. She wrapped the remains in a black bandana and placed them in the arms of a monkey stuffed animal. She added a few more layers in a mesh bag before burying the bundle in the backyard.
She named the fetus Abel.
“[On] April 21st at 2 am my life stopped. I was so scared and afraid. I didn’t know who to talk to. I didn’t know what to do I was so scared,” Frazier later posted on Facebook with a photo of a wooden cross sticking out of the ground. “I’m so sorry Abel. I’m sorry I’m a horrible person I don’t deserve to continue after what I did.”
Forty days after her stillbirth, Frazier was arrested. In just over a year, she was convicted and imprisoned.
Nevada is a firmly pro-choice state with the protections from Roe v. Wade enshrined in state law and the majority of Nevadans consistently polling in favor of reproductive rights. But it’s the only state in the country that can imprison people for terminating a pregnancy under certain circumstances, according to Laura FitzSimmons, the Carson City-based lawyer now representing Frazier pro bono.
Other state laws against abortions target anyone but the pregnant person.
Texas, for example, allows private citizens to sue anyone who “aids or abets” someone seeking an abortion after six weeks — but not the person getting the medical procedure. A similar law in Idaho lets the mother, father and family of an embryo or fetus aborted after six weeks sue providers for a minimum of $20,000 in damages.The Mississippi law challenging Roe v. Wade in a U.S. Supreme Court case revokes or suspends the medical licenses of doctors who perform abortions after 15 weeks of pregnancy.
“Texas doesn’t do it. Mississippi doesn’t do it. The new law in Idaho — nobody is throwing women in prison for terminating their own pregnancy,” FitzSimmons said.
The law at the center of Frazier’s case, NRS 200.220, makes it a felony for a woman to terminate her pregnancy with “any drug, medicine or substance, or any instrument or other means” after the 24th week of pregnancy.
FitzSimmons is asking the Nevada Supreme Court to rule that it’s unconstitutional.
In legal filings asking the court to hear the case, she argues that the statute is vague and discriminates based on sex. She contends that the law, which was enacted in 1911, could be exploited by politically minded sheriffs and district attorneys. FitzSimmons told The Nevada Independent she thinks cases related to the statute will increase as abortion becomes even more polarizaring.
FitzSimmons illustrates these issues with the story of Frazier, who is the first person known to be convicted under the statute. After taking up the case in 2020, FitzSimmons successfully argued for Frazier’s release from prison last summer on a legal technicality.
But the statute still hangs over Frazier’s head. If an appeal of her release succeeds, she will wind up back in prison, and on the flip side, an unsuccessful appeal will allow the state to recharge her under the statute or for other offenses.
“Unless we get the statute declared unconstitutional, they’re going to retry her,” FitzSimmons said. “She’s going to have to go through the whole nightmare again.”
‘Why is this illegal apparently’
When Frazier found out she was pregnant in February 2018, she didn’t know what to do. She was struggling with depression and a history of being abused. She was afraid to raise another child on her own, she said in an email statement sent to The Nevada Independent through FitzSimmons.
Frazier’s last few years were filled with monthslong stretches of homelessness, a variety of jobs and attempts to get her GED certificate. She and her two sons lived in her car for five months before a friend offered to let them live at their house outside Winnemucca. Soon after moving in, Frazier discovered she was pregnant. She didn’t tell anyone.
“I didn’t have help from anyone so I had to do a lot on my own and the stress I was under was horrible,” she wrote in the email. “I was just trying to make it through each day.”
Photo courtesy Patience Frazier
Frazier said she felt the same complex emotions during her previous pregnancies, and she only “tried” to have a self-managed abortion for a month after finding out she was pregnant in February.
About a month after her stillbirth in April, Frazier’s babysitter called the Humboldt County Sheriff’s Office to report the cross on the property where Frazier was living. Then she sent them Frazier’s grieving Facebook post.
Two days later, detectives arrived with a search warrant. Four armed narcotics investigators came, too, because the house was known for drugs and as a stomping ground for felons, according to court records.
Frazier was afraid and confused about what she had done wrong to bring this many people to her door step.
“Why is having a miscarriage a problem?” she asked in a court transcript of the conversation. “Why is this illegal apparently?”
The detectives told her they didn’t know how far along she was and that there were reporting requirements for a late-term miscarriage. Then they dug up the mesh bag underneath the cross in the backyard and sent it to Washoe County Crime Laboratory.
Dr. Laura Knight, Washoe County’s chief medical examiner and coroner, found “mostly bones, a few organs, and some remaining leathery skin” underneath a toy monkey and a black bandana, she later testified.
The autopsy revealed the fetus was between 28 and 32 weeks old and had traces of marijuana and methamphetamine in his body.
On May 30, Frazier got a ride with detectives to the sheriff’s office, where she told them about how she tried to miscarry. She told them she had researched online and found that a self-managed abotion was just as legal as going to a clinic for the operation, which she couldn’t do because her car’s alternator went out.
She told the detectives she didn’t want to “bring another kid into this world.”
“I’ve been at that point in my life where honestly if I was dying, I just want to go. I don’t want to stop it,” she told the detectives. “I have lost everything and I’ve been struggling so hard, trying my hardest for my kids and they’re honestly the only reason I’m still alive or I would have killed myself by now.”
At the end of the questioning, detectives arrested Frazier for concealing a birth, a gross misdemeanor, and manslaughter, a felony, through the abortion law.
Humboldt County Sheriff Mike Allen declined an interview, saying his office couldn’t comment on an ongoing case.
Once the arrest hit local news, Frazier said she was treated differently. She was chased out of stores. People called her a “baby killer” and threatened her life. Her public defender tried unsuccessfully to move the case outside of Winnemucca, telling the court a “lynching-like atmosphere hangs heavy over the City of Winnemucca.”
Frazier pleaded guilty to manslaughter in May 2019, following her counsel’s advice, so the misdemeanor would be dropped and the state would suggest probation..
The judge instead sentenced her to 30 months to 96 months in prison.
Support from doctors
FitzSimmons’ challenge to the Nevada statute received an amicus brief from almost a dozen organizations and medical professionals, including the American College of Obstericians and Gynecologists, Nevada State Medical Association and the research group Project SANA (Self-managed Abortion Needs Assessment Project).
The brief states that almost all medical associations oppose criminalizing the outcome of a pregnancy regardless of the cause and argues that doing so has “devastating, even life-threatening, consequences.” These consequences include preventing people from seeking medical care, subjecting them to social reproof and forcing them to undergo “cruel and humiliating” investigations during medical crises.
“Punishing people for reproductive outcomes violates their fundamental rights by inserting punitive state proceedings into some of the most intimate aspects of their lives and creating inherently discriminatory legal standards that punish people on the basis of their capacity to become pregnant,” the brief reads.
The effects of criminalizing pregnancy outcomes, the brief argues, disproportionately harm people of color and low-income people. Because of health disparities related to race, Black women in particular are more likely to experience the stillbirths that could make them susceptible to a charge under the Nevada law and are more likely to be arrested and convicted than white women.
Punishing people for the result of their pregnancy undermines any intentions the state has of protecting maternal and fetal health and “defies tenets of sound medical practice, ethics and science,” according to the brief. Even in states like Nevada that protect abortion rights, the brief argues, ensuring people can safely self-manage abortions is important.
Teresa Howell holds a sign during a reproductive health rights demonstration in front of the Lloyd D George Federal Courthouse in downtown Las Vegas on Tuesday, May 3, 2022. (Daniel Clark/The Nevada Independent)
‘A total miscarriage of justice’
FitzSimmons said she learned about the case after Frazier had spent more than a year in prison.
The lawyer was part of the group that led the charge to codify the Roe v. Wade protections in Nevada law in 1990. Many members of that same group, along with new generations of advocates, started meeting in 2020 to try to make abortion more accessible in the state.
To get her abortion, Frazier would have had to drive more than two hours and pay a minimum of $1,740 — cash only — at the only clinic in Reno that provides abortions after 10 weeks of gestation.
When a Planned Parenthood employee told FitzSimmons about Frazier, FitzSimmsons decided to take the case pro bono to try to free Frazier — and challenge the law.
FitzSimmons argued in a May 2021 hearing that Frazier’s public defender did not properly understand that his client would have had to know that her fetus was more than 24 weeks for her to violate the statute. Because Frazier did not know, the guilty plea he convinced her to take was invalid, FitzSimmons said.
The Humboldt County District Attorney’s Office disagreed. The deputy district attorney said the plea and the public defender’s counseling of Frazier were legally sound.
“[Frazier’s] plea in this case was freely, knowing and voluntarily made, and to suggest otherwise is an abuse of discretion and is contrary to what the District Court had previously held,” the state wrote in court documents.
FitzSimmons also argued that the state needed to prove that Frazier’s actions caused the stillbirth. Although the methamphetamine found in Frazier’s fetus is associated with miscarriages, no expert witnesses, including Washoe County’s medical examiner, could determine that Frazier’s use of methamphetamine or any of her other actions caused her stillbirth.
“There is no scientific evidence to support any casual association between any of her behaviors during pregnancy (including the taking of cinnamon) and this outcome,” reads a report from FitzSimmons’ witness Dr. Mishka Terplan, an OB-GYN and addiction medicine physician. “Although the exact reasons for the loss are uncertain, her loss is not related to her actions or behaviors. Statements to the contrary reject both science and compassion.”
The state did not dispute that it was impossible to determine what caused Frazier’s pregnancy loss.
One out of every 160 pregnancies end in a stillbirth each year, according to the Centers for Disease Control and Prevention. The amicus brief from the medical associations states that up to 66 percent of stillbirths have inexplicable causes and noted that courts require “a level of certainty that science is simply unable to provide.”
The judge ruled in Frazier’s favor, calling the case “a total miscarriage of justice” and releasing her in July 2021 from the Las Vegas prison where she was held for two years. Still, the punishment already had serious consequences in her personal life.
Frazier had met and married a man before she was sentenced. They were hoping for probation, she said in an email, but the prison sentence took a toll and ended the marriage, though he continued watching her children until her release. While she was in prison, she said one of her children was “bullied and harassed” in school and stores.
“When I was released from [prison], I had 2 kids and one of my cats waiting for me. But no husband,, no home, no friends, nothing. I was not welcome in the community,” Frazier wrote in the email. “I lost almost everything I had.”
‘A minefield in Nevada’s modern pro-choice landscape’
At a hearing the day of Frazier’s release, the deputy district attorney declined to detail how the state planned to move forward with the case. He said his office wanted to “leave all of their options open, including recharging her.”
Both FitzSimmons and the judge discouraged the state from pursuing an appeal or recharging Frazier.
“I just think in terms of the amount of effort that you need to expend to amount an appeal to the Nevada Supreme Court is going to eat up a whole bunch of resources that you could use to prosecute some people who are much more evil and much more screwed up than Patience Frazier,” said Judge Charles M. McGee.
The state formally appealed in February. If the state wins, Frazier will have to complete the prison sentence from her guilty plea. If the state loses, Frazier’s guilty plea will remain erased. Without the plea, the district attorney can recharge her under the statute, for concealing birth or any other offense and try to take the case to trial.
Laura FitzSimmons poses for a portrait in her backyard Carson City on May 23, 2022. (David Calvert/The Nevada Independent)
Humboldt County District Attorney Michael Macdonald declined to answer questions about the case — including why the state was pursuing an appeal or considering a recharge after Frazier already served a more severe punishment than the state’s original recommendation of probation. He cited a professional conduct rule about not making public statements regarding ongoing cases.
In her request to the Nevada Supreme Court, FitzSimmons wrote that the state controls Frazier’s future — and the future of other women who can be prosecuted for their pregnancy outcomes — until the court rules that the statute is unconstitutional. That control, she argues, could be a weapon for politically minded officials.
“[The statute] is a minefield in Nevada’s modern pro-choice landscape,” FitzSimmons wrote in the brief. “It is inexplicit: rendering it exploitable by law enforcement and prosecutors and jurors who are opposed to abortion.”
FitzSimmons told The Nevada Independent that she is also representing a woman in a different rural county whose case involves the statute.
Frazier and her children now live out of state. She said she works two jobs she loves, and she’s in a great relationship. She owns her car and almost owns her home. She has her 7-year-old cat and a puppy.
“I still am struggling with my depression, someday are harder then others,” she said in an email. “But I am happy and my kids are happy and healthy.”
Frazier said she still doesn’t understand how what she did was illegal. She continues to receive threats and “baby killer” comments.
Frazier said that if she were to go back to prison, it would take away everything she’s worked for and would ruin her children’s lives. She said she doesn’t believe she could “mentally handle” returning and living through the nightmare again.
“I am finally in a really great place in my life and having everything I have been working so hard towards taken from me again would kill me,” she said in an email. “I have lost most of the people I have ever called a friend, [I’ve] lost someone that I truly loved and family members. I truly don’t think I could handle doing this all over again.”