Even before the fall of Roe v. Wade, women being locked up for their pregnancy outcomes was sadly a problem. Between 2006 and 2020 nearly 1,300 people faced criminal charges for conduct associated with pregnancy, pregnancy loss, abortion, or birth, and in the first year post-Dobbs alone, more than 200 people were arrested.
But the story of a Nevada mother’s pre-Dobbs arrest and incarceration published this week in the Washington Post highlights the lengths law enforcement will go to criminalize someone who they believe must be punished. Patience Frazier had a stillbirth in rural Nevada in April 2018, wrapped the remains, and buried them in her yard, marking the grave with a cross. Frazier’s babysitter, Elishia Hill—a woman who the Post describes as “devoutly Christian”—reported her to the police. (Basic facts about the case were first reported more than two years ago by the Nevada Independent, but the Post spoke to multiple people involved in the investigation and chose to publish police body cam footage of officers digging up the remains.)
The sheriff’s deputy who got the tip was Jacqueline Mitcham, who already knew Frazier because, the Post reveals, they used the same babysitter. Hill would sometimes watch Frazier’s two kids for a few days, or, after Frazier moved into her car, a few weeks at a time. Hill and Mitcham would gossip about Frazier’s parenting and Frazier said she felt judged every time she ran into Mitcham. After Hill told Mitcham she was suspicious of the grave, Mitcham believed Frazier should be charged with murder. She recalled to the Post that before launching an investigation, she thought to herself that Frazier “killed her baby.”
I’m going to jump ahead for a second and tell you that Frazier spent more than two years in jail for manslaughter related to her miscarriage, before being released in July 2021 due to “ineffective assistance of counsel.” And while Frazier was incarcerated, Mitcham convinced a funeral home director to give her Frazier’s “unclaimed” fetal remains, which isn’t explicitly illegal. She did this without Frazier’s knowledge or consent. Mitcham keeps the remains in a wooden box near her front door. She recalled saying to the funeral director, “I’m taking him…that’s my baby,” and told the Post she was the only person who ever loved him.
Also, at the 2019 sentencing hearing, Mitcham, then seven months pregnant, sat in the front row rubbing her belly and staring at the judge. She told the Post she wanted him to see the “life” that Frazier “threw away.”
Back to 2018: Frazier didn’t respond to her stillbirth in a way that was acceptable to Mitcham. Per the body cam footage, Mitcham asked why she didn’t call 911 afterward. Frazier told the Post that she hadn’t even informed her roommate-turned-boyfriend about the pregnancy because she thought the man—who took in her and her two young sons off the street—would kick her out if he knew she was pregnant with someone else’s baby.
Mitcham was determined to arrest Frazier. She called another detective to help her write an application for a search warrant citing “a possible unreported birth, death, and clandestine burial of an infant.” They dug up the remains and the medical examiner found no evidence of a live birth and couldn’t determine the cause of death. The fetus was estimated to be between 28 and 32 weeks gestational age and the toxicology report found remnants of marijuana and methamphetamine. But the second detective told the Post he was convinced Frazier had killed a live baby and recalled thinking, “We have to find a charge that works…She has to be charged with something.”
The pair landed on a 1911 law that supplements abortion restrictions—the section is titled “taking drugs to terminate pregnancy.” The law, NRS 200.220, says that women who use “any drug, medicine or substance, or any instrument or other means with the intent to terminate” a pregnancy after 24 weeks can be charged with manslaughter, a felony with a sentence of one to 10 years in prison. They also charged Frazier with concealing a birth, a misdemeanor. Nevada is the only state that still explicitly criminalizes women who end a pregnancy. But law enforcement in other states including Virginia and Ohio have used laws unrelated to abortion to criminalize people for pregnancy loss, like charging women for concealment or abuse of a corpse.
Frazier’s story highlights how law enforcement will use any tool at their disposal to criminalize people for pregnancy loss, said Farah Diaz-Tello, senior counsel and legal director at If/When/How, an organization that assists people with pregnancy-related legal issues. (If/When/How was part of a coalition that secured Frazier’s 2021 release.) “The thing that really comes through so clearly in this article is just how personal of a vendetta this is,” Diaz-Tello said, adding that the authorities were determined “to go after somebody they just didn’t like because she was parenting in poverty.”
Frazier had previously lived in her car, a vehicle in such poor condition that she often couldn’t get to the grocery store, let alone to an abortion clinic more than two hours away where she had made an appointment. She never showed up. The judge who ruled in 2021 that she should be released wrote: “Patience has been portrayed as an antichrist, but this Judge thinks she is, instead, just a mother caught hopelessly in the web of poverty with a lack of any support system.”
As for Mitcham taking custody of the fetal remains, Diaz-Tello noted that Frazier only came to the attention of law enforcement because of how she memorialized her loss, which she called “deeply tinged with pain and respect.” Diaz-Tello said it was morally repulsive for the police officer who personally saw to it that Frazier was put in prison to then take those remains, create a memorial, and say to a reporter that it was her baby. “Essentially she’s doing the exact same thing that Patience tried to do [with the remains],” she said, “but Patience should go to prison for it, and this police officer should get to keep this as a trophy.”
And the remains were not “unclaimed,” she said. “[Patience] would have no way of knowing from her place in Nevada prison that there was anything that she could or should have done to prevent this from happening.” Unfortunately, there’s a gray area in state laws about who can claim fetal remains, Diaz-Tello said. “There isn’t clarity on the notion that the person whose pregnancy it was is the person who should get to make that determination.”
Frazier’s case is still open, meaning prosecutors could re-try her. For all the fears online about period trackers and other digital apps, people are most commonly criminalized for pregnancy loss after a human being—like a healthcare worker or an acquaintance or, in this case, a babysitter—tips off law enforcement. (In the high-profile Brittany Watts case, an Ohio nurse reported her because she “didn’t want to look at” the fetal remains. A jury later decided not to prosecute.)
Frazier has since moved out of Nevada to another state and the Post printed where she currently lives, meaning her neighbors will likely find out about her arrest and harass her like she was in both her small Nevada town and in prison.
Nevada is one of 10 states voting on abortion amendments this fall, but Diaz-Tello said that, as far as she can tell, Nevada’s ballot measure wouldn’t prevent arrests like this. That’s because it only protects the right to an abortion from a qualified provider until the point of viability. Patience never saw a medical provider. This is “a glaring omission” given that Nevada is the only state with a law like the 1911 provision still on the books. But the risks still exist elsewhere, given overzealous prosecutors. “Ballot measures that are essentially codifying Roe are re-codifying problems and the gaps that exist that allowed someone like Patience to enter the criminal legal system,” she said.
Diaz-Tello said that a larger lesson of Frazier’s case is that zombie laws can still harm people. “A law may be little used, it may be largely disregarded, but it could become a live threat, really, at the drop of a hat.” There are archaic state statutes about concealing a birth as well as federal laws like the Comstock Act, which the architects of Project 2025 want Trump to use to ban abortion if he wins. “There is no justification for having laws that potentially insert the criminal legal system into people’s reproductive lives on the books any longer that we can’t tolerate that.”
The outcome of the election matters a great deal, she said, because really “we could be in a situation where all bets are off.”
GET JEZEBEL RIGHT IN YOUR INBOX
Still here. Still without airbrushing. Still with teeth.
