By Alexis Sclamberg
Tuesday, April 20, 2010
Under a new Utah law, women who miscarry under certain conditions are open to murder charges and life sentences. Feticide laws in other states focus on abusive boyfriends and husbands, but this one targets the woman herself.
(WOMENSENEWS)--Utah's new law, in which women who miscarry could face charges of murder and life sentences in prison, has the American Medical Association, the American Civil Liberties Union and women's advocacy groups worried.
"So many things can happen," Marina Lowe of the Utah American Civil Liberties Union said of the law's consequences, "and it's all in the eye of the beholder."
This law differs radically from feticide laws in other states in its punishment of pregnant women themselves, said Lynn Paltrow, executive director of the New York-based National Association of Pregnant Women.
Other states, such as North Carolina, Florida and Mississippi, have laws that are directed towards a third party and "were passed in response to a pregnant woman who has been beaten up by a husband or boyfriend," Paltrow said. But Utah's law "is directed to the woman herself, and that's what makes it different and dangerous."
The law became official March 8. State Rep. Carl Wimmer proposed it after a 17-year-old girl who was 7 months pregnant paid a man she didn't know to beat her up to induce a miscarriage. He kicked her in the stomach repeatedly and even bit her neck. But the fetus survived and the baby was given up for adoption.
The young woman was charged with second-degree felony criminal solicitation to commit murder in Juvenile Court, but was not ultimately charged.
Under Utah law at that time, a woman could not be held criminally liable for attempting to obtain an abortion on her own. The man who beat her was found guilty of third-degree attempted killing of an unborn child under a state anti-abortion statute and was sentenced to up to five years in jail.
Wimmer, an ardent advocate for repealing Roe v. Wade, the Supreme Court decision protecting abortion under a woman's right to privacy, proposed the first version of what became the Utah Criminal Homicide and Abortions Revisions bill.
Originally the bill criminalized any "reckless" act by a pregnant woman that causes a miscarriage. Utah Gov. Gary Herbert refused to sign it out of concern that the wording was murky enough to mean pregnant women who lost a fetus due to slipping on ice, over-exercising or driving past the speed limit could face the bill's most extreme punishment of life in prison.
The bill was revised, yet the law still contains provisions that may have consequences far exceeding the scope of the legislature's intent, critics say. Among other things, law enforcement officials now have discretion over arrests and investigations in connection with the law.
Liza Fuentes and Sheila Reynoso, researchers at the National Latina Institute for Reproductive Health, based in New York and Washington, D.C., argue in a jointly authored paper that women could be sent to jail for situations in which miscarriage was not intended.
"What if a woman received treatment for cancer while pregnant?" they ask in their paper.
Some of the "knowing or intentional" acts that may be prosecuted under the law include smoking cigarettes during pregnancy, staying in an abusive relationship, refusing a Caesarean section or bed rest when instructed by a doctor or using prescription medications that are known to harm a fetus.
One major concern is that the bill will drive women in need of prenatal and health care underground.
"Pregnant women will be likely to avoid seeking prenatal or open medical care for fear that their physician's knowledge of substance abuse or other potentially harmful behavior could result in a jail sentence," the American Medical Association has commented. Any health care provider could become an informant, reporting the pregnant woman to the police when knowing her actions would potentially terminate her pregnancy.
Wimmer assured opponents that the law would only be applied "in the most glaring of cases." Law enforcement officials, however, have discretion to arrest and investigate whichever cases they choose.
Advocates representing low income and minority women have expressed concern that the law will have a particular impact on women already disproportionately targeted for punishment, state control and arrests.
"There is no doubt that this law will be tested out on immigrant women and low-income women," Fuentes and Reynoso write, "as women who are less likely to have health insurance, a regular health care provider and more likely to work in dangerous conditions…this law sanctions prosecutors to bring criminal charges against those women who have health outcomes that are worse than their wealthier, white, non-immigrant counterparts."
Utah is not the first state to punish pregnant women. In 2006, medical personnel assisting a 15-year-old African American girl in Mississippi suffering a stillbirth called the police. She was charged as an adult for murder.
A severely depressed woman in South Carolina just last year lost her fetus during a suicide attempt. After months in jail without bail, she pleaded guilty to manslaughter to avoid a murder conviction.
More recently, a Florida court ordered a pregnant woman in-hospital bed rest against her will and prevented her from getting a second medical opinion on the matter.
Alexis Sclamberg, Esq., is a lawyer, mediator and freelance journalist. She received her law degree from the University of Pennsylvania Law School and focuses her practice on Alternative Dispute Resolution and women and the law.
Criminal Homicide and Abortion Revisions bill
Utah American Civil Liberties Union
"What the Utah bill will really mean for women's rights and health," National Latina Institute for Reproductive Health