Marsh understood that the report was related to a pregnancy loss she’d experienced that March, she said. During her second trimester, Marsh said, she unexpectedly gave birth in the middle of the night while on a toilet in her off-campus apartment. She remembered screaming and panicking and said the bathroom was covered in blood.
“I couldn’t breathe,” said Marsh, now 23.
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The next day, when Marsh woke up in the hospital, she said, a law enforcement officer asked her questions. Then, a few weeks later, she said, she received a call saying she could collect her daughter’s ashes.
At that point, she said, she didn’t know she was being criminally investigated. Yet three months after her loss, Marsh was charged with murder/homicide by child abuse, law enforcement records show. She spent 22 days at the Orangeburg-Calhoun Regional Detention Center, where she was initially held without bond, facing 20 years to life in prison.
This August, 13 months after she was released from jail to house arrest with an ankle monitor, Marsh was cleared by a grand jury. Her case will not proceed to trial.
Her story raises questions about the state of reproductive rights in this country, disparities in health care, and pregnancy criminalization, especially for Black women like Marsh. More than two years after the U.S. Supreme Court issued its Dobbs v. Jackson Women’s Health Organization decision, which allowed states to outlaw abortion, the climate around these topics remains highly charged.
Marsh’s case also highlights what’s at stake in November. Sixty-one percent of voters want Congress to pass a federal law restoring a nationwide right to abortion, according to a recent poll by KFF, the health policy research, polling, and news organization that includes KFF Health News. These issues could shape who wins the White House and controls Congress, and will come to a head for voters in the 10 states where ballot initiatives about abortion will be decided.
This case shows how pregnancy loss is being criminalized around the country, said U.S. Rep. James Clyburn, a Democrat and graduate of South Carolina State University whose congressional district includes Orangeburg.
“This is not a slogan when we talk about this being an ‘election about the restoration of our freedoms,’” Clyburn said.
‘I Was Scared’
When Marsh took an at-home pregnancy test in November 2022, the positive result scared her. “I didn’t know what to do. I didn’t want to let my parents down,” she said. “I was in a state of shock.”
She didn’t seek prenatal care, she said, because she kept having her period. She thought the pregnancy test might have been wrong.
An incident report filed by the Orangeburg County Sheriff’s Office on the day she lost the pregnancy stated that in January 2023 Marsh made an appointment at a Planned Parenthood clinic in Columbia to “take the Plan-C pill which would possibly cause an abortion to occur.” The report doesn’t specify whether she took — or even obtained — the drug.
During an interview at her parents’ house, Marsh denied going to Planned Parenthood or taking medicine to induce abortion.
“I’ve never been in trouble. I’ve never been pulled over. I’ve never been arrested,” Marsh said. “I never even got written up in school.”
She played clarinet as section leader in the marching band and once performed at Carnegie Hall. In college, she was majoring in biology and planned to become a doctor.
South Carolina state Rep. Seth Rose, a Democrat in Columbia and one of Marsh’s attorneys, called it a “really tragic” case. “It’s our position that she lost a child through natural causes,” he said.
On Feb. 28, 2023, Marsh said, she experienced abdominal pain that was “way worse” than regular menstrual cramps. She went to the emergency room, investigation records show, but left after several hours without being treated. Back at home, she said, the pain grew worse. She returned to the hospital, this time by ambulance.
Hospital staffers crowded around her, she said, and none of them explained what was happening to her. Bright lights shone in her face. “I was scared,” she said.
According to the sheriff’s department report, hospital staffers told Marsh that she was pregnant and that a fetal heartbeat could be detected. Freaked out and confused, she chose to leave the hospital a second time, she said, and her pain had subsided.
In the middle of the night, she said, the pain started again. She woke up, she recalled, feeling an intense urge to use the bathroom. “And when I did, the child came,” she said. “I screamed because I was scared, because I didn’t know what was going on.”
Her boyfriend at the time called 911. The emergency dispatcher “kept telling me to take the baby out” of the toilet, she recalled. “I couldn’t because I couldn’t even keep myself together.”
First medical responders detected signs of life and tried to perform lifesaving measures as they headed to Regional Medical Center in Orangeburg, the incident report said. But at the hospital, Marsh learned that her infant, a girl, had not survived.
“I kept asking to see the baby,” she said. “They wouldn’t let me.”
The following day, a sheriff’s deputy told Marsh in her hospital room that the incident was under investigation but said that Marsh “was currently not in any trouble,” according to the report. Marsh responded that “she did not feel as though she did anything wrong.”
More than 10 weeks later, nothing about the text messages she received from an officer in mid-May implied that the follow-up meeting about the final report was urgent.
“Oh it doesn’t have to be Wednesday, it can be next week or another week,” the officer wrote in an exchange that Marsh shared with KFF Health News. “I just have to meet with y’all in person before I can close the case out. I am so sorry”
“No problem I understand,” Marsh wrote back.
She didn’t tell her parents or consider hiring a lawyer. “I didn’t think I needed one,” she said.
Marsh arranged to meet the officer on June 2, 2023. During that meeting, she was arrested. Her boyfriend was not charged.
Her father, Herman Marsh, the band director at a local public school in Orangeburg, thought it was a bad joke until reality set in. “I told my wife, I said, ‘We need to get an attorney now.’”
Pregnancy Criminalization
When Marsh lost her pregnancy on March 1, 2023, women in South Carolina could still obtain an abortion until 20 weeks beyond fertilization, or the gestational age of 22 weeks.
Later that spring, South Carolina’s Republican-controlled legislature passed a ban that prohibits providers from performing abortions after fetal cardiac activity can be detected, with some exceptions made for cases of rape, incest, or when the mother’s life is in jeopardy. That law does not allow criminal penalties for women who seek or obtain abortions.
Solicitor David Pascoe, a Democrat elected to South Carolina’s 1st Judicial Circuit whose office handled Marsh’s prosecution, said the issues of abortion and reproductive rights weren’t relevant to this case.
“It had nothing to do with that,” he told KFF Health News.
The arrest warrant alleges that not moving the infant from the toilet at the urging of the dispatcher was ultimately “a proximate cause of her daughter’s death.” The warrant also cites as the cause of death “respiratory complications” due to a premature delivery stemming from a maternal chlamydia infection. Marsh said she was unaware of the infection until after the pregnancy loss.
Pascoe said the question raised by investigators was whether Marsh failed to render aid to the infant before emergency responders arrived at the apartment, he said. Ultimately, the grand jury decided there wasn’t probable cause to proceed with a criminal trial, he said. “I respect the grand jury’s opinion.”
Marsh’s case is a “prime example of how pregnancy loss can become a criminal investigation very quickly,” said Dana Sussman, senior vice president of Pregnancy Justice, a nonprofit that tracks such cases. While similar cases predate the Supreme Court’s Dobbs decision, she said, they seem to be increasing.
“The Dobbs decision unleashed and empowered prosecutors to look at pregnant people as a suspect class and at pregnancy loss as a suspicious event,” she said.
Local and national anti-abortion groups seized on Marsh’s story when her name and mug shot were published online by The Times and Democrat of Orangeburg. Holly Gatling, executive director of South Carolina Citizens for Life, wrote a blog post about Marsh titled, in part, “Orangeburg Newborn Dies in Toilet” that was published by National Right to Life. Gatling and National Right to Life did not respond to interview requests.
Marsh said she made the mistake of googling herself when she was released from jail.
“It was heartbreaking to see all those things,” she said. “I cried so many times.”
Some physicians are also afraid of being painted as criminals. The nonprofit Physicians for Human Rights published a report on Sept. 17 about Florida’s six-week abortion ban that included input from two dozen doctors, many of whom expressed fear about the criminal penalties imposed by the law.
“The health care systems are afraid,” said Michele Heisler, medical director for the nonprofit. “There’s all these gray areas. So everyone is just trying to be extra careful. Unfortunately, as a result, patients are suffering.”
Chelsea Daniels, a family medicine doctor who works for Planned Parenthood in Miami and performs abortions, said that in early September she saw a patient who had a miscarriage during the first trimester of her pregnancy. The patient had been to four hospitals and brought in the ultrasound scans performed at each facility.
“No one would touch her,” Daniels said. “Each ultrasound scan she brought in represents, on the other side, a really terrified doctor who is doing their best to interpret the really murky legal language around abortion care and miscarriage management, which are the same things, essentially.”
Florida is one of the 10 states with a ballot measure related to abortion in November, although it is the only Southern state with one. Others are Montana, Missouri, and Maryland.
‘I Found My Strength’
Zipporah Sumpter, one of Marsh’s lawyers, said the law enforcement system treated her client as a criminal instead of a grieving mother. “This is not a criminal matter,” Sumpter said.
It was not just the fraught climate around pregnancy that caused Marsh to suffer; “race definitely played a factor,” said Sumpter, who does not believe Marsh received compassionate care when she went to the hospital the first or second time.
The management of Regional Medical Center, where Marsh was treated, changed shortly after her hospitalization. The hospital is now managed by the Medical University of South Carolina, and its spokesperson declined to comment on Marsh’s case.
Historically, birth outcomes for Black women in Orangeburg County, where Marsh lost her pregnancy, have ranked among the worst in South Carolina. From 2020 through 2022, the average mortality rate for Black infants born in Orangeburg County was more than three times as high as the average rate for white infants statewide.
Today, Marsh is still trying to process all that happened. She moved back in with her parents and is seeing a therapist. She is taking classes at a local community college and hopes to reenroll at South Carolina State University to earn a four-year degree. She still wants to become a doctor. She keeps her daughter’s ashes on a bookshelf in her bedroom.
“Through all of this, I found my strength. I found my voice. I want to help other young women that are in my position now and will be in the future,” she said. “I always had faith that God was going to be on my side, but I didn’t know how it was going to go with the justice system we have today.”
KFF Health News Florida correspondent Daniel Chang contributed to this article.
KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.
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