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New Study Shows Anti-Choice Policies Leading to Widespread Arrests of and Forced Interventions on Pregnant Women

2:47 pm in Uncategorized by RH Reality Check

Written by Lynn Paltrow and Jeanne Flavin for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Read additional 2013 coverage on the personhood of women here.

The full table of contents for Volume 38, No. 2, of the Journal of Health Politics, Policy, and Law can be found here. Articles in this edition will be available for public access for a full month here.

Pregnant woman

A new study cites hundreds of instances where pregnancy cost women their constitutional rights.

On Tuesday, January 15th, the Journal of Health Politics, Policy and Law will publish our study, “Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women’s Legal Status and Public Health.” This study makes clear that post-Roe anti-choice and “pro-life” measures are being used to do more than limit access to abortion; they are providing the basis for arresting women, locking them up, and forcing them to submit to medical interventions, including surgery. The cases documented in our study through 2005, as well as more recent cases, make clear that 40 years after Roe v. Wade was decided, far more is at stake than abortion or women’s reproductive rights. Pregnant women face attacks on virtually every right associated with constitutional personhood, including the very basic right to physical liberty.

Our study identified 413 criminal and civil cases involving the arrests, detentions, and equivalent deprivations of pregnant women’s physical liberty that occurred between 1973 (when Roe v. Wade was decided) and 2005. Because many cases are not reported publicly, we know that this is a substantial under count. Furthermore, new data collection indicates that at least 250 such interventions have taken place since 2005.

In almost all of the cases we identified, the arrests and other actions would not have happened but for the fact that the woman was pregnant at the time of the alleged violation of law. And, in almost every case we identified, the person who initiated the action had no direct legal authority for doing so. No state legislature has passed a law that holds women legally liable for the outcome of their pregnancies. No state legislature has passed a law making it a crime for a pregnant woman to continue her pregnancy to term in spite of a drug or alcohol problem. No state has passed a law exempting pregnant women from the protections of the state and federal constitution. And, under Roe v. Wade, abortion remains legal.

Yet, since 1973, many states have passed feticide measures and laws restricting access to safe abortion care that, like so-called “personhood” measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman. We found that these laws have been used as the basis for a disturbing range of punitive state actions in every region of the country and against women of every race, though disproportionately against women in the South, low-income women and African-American women.

Women have been arrested while still pregnant, taken straight from the hospital in handcuffs, and sometimes shackled around the waist and at the ankles. Pregnant women have been held under house arrest and incarcerated in jails and prisons. Pregnant women have been held in locked psychiatric wards, as well as in hospitals and in drug treatment programs under 24-hour guard. They have been forced to undergo intimate medical exams and blood transfusions over their religious objections. Women have been forced to submit to cesarean surgery. They have been arrested shortly after giving birth while dressed only in hospital gowns. And, despite claims by some anti-choice activists that women themselves will not be arrested if abortion is re-criminalized, women who have ended their pregnancies and had abortions are already being arrested.

Consider the following:

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The Death of Savita Halappanavar: A Tragedy Leading to Long Overdue Change?

10:23 am in Uncategorized by RH Reality Check

About Ten Thousand People Attended A Rally In Dublin In Memory Of Savita Halappanavar

About Ten Thousand People Attended A Rally In Dublin In Memory Of Savita Halappanavar

Written by Carole Joffe for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

The tragic and unnecessary death of Savita Halappanavar — a 31-year old Indian woman who was denied a life-saving abortion in an Irish hospital — has sparked reactions across the globe. Thousands have marched in Dublin. Demonstrations have taken place in India and elsewhere. An international day of protest is called for November 21. Tense meetings between Indian and Irish government officials are taking place. The overriding question now is: what will be the legacy of this horrible event, beyond the unspeakable grief of Savita’s loved ones? After the demonstrations have stopped, will Irish hospitals — where abortion remains illegal but is permissible in life-threatening conditions — proceed differently in the future? Will the country finally move toward legalizing abortion?

This heartbreaking incident has led me to contemplate the long history of abortion struggles around the globe and under what circumstances, change takes place. It is not an exaggeration to say that throughout history millions of women have died and even more have been injured because of the lack of safe abortion. But only some of these tragedies capture the public’s attention and become catalysts for change.  And sometimes public attitudes are affected even when a woman’s death is not involved.

Consider the history of abortion in the United States. Two events that occurred in the 1960s were instrumental in moving much of the country toward an endorsement of legal abortion. The first, in 1962, involved Sherri Chessen Finkbine, a Phoenix woman pregnant with her fifth child, who learned that the Thalidomide pills she had been using as a sleep aid were strongly associated with severe birth defects. Her doctor was able to arrange a “therapeutic” (i.e. approved) abortion for her at a local hospital, but Finkbine, in an act of decency that would prove costly, went public with her story as she hoped to warn other women who were in her situation. Her interview with a journalist created a media sensation, and nervous hospital authorities cancelled her abortion. Ultimately Finkbine, unable to find an abortion anywhere in the United States, obtained one in Sweden, where she delivered a fetus with missing limbs. Doctors told her the fetus would have had no chance of survival. Finkbine’s story spread beyond Phoenix to become a national story, including a cover on Life magazine. This incident, particularly the unprecedented visibility of abortion on the cover of the leading news magazine of the 1960s, “had a galvanizing effect on public opinion,” in the words of the journalist Linda Greenhouse, a longtime observer of the trajectory of abortion rights in the United States.
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Abortion is Legal: So Why is Self-Abortion Care a Crime?

7:33 am in Uncategorized by RH Reality Check


Written by Susan Yanow and Steph Herold for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Last week, a 20-year-old woman in New York City was arrested on charges of “self-induced abortion” and faces first-degree misdemeanor charges.  Initial news reports indicate that she intentionally caused the miscarriage/abortion of her 24-week fetus.  The woman disposed of the fetus in what was probably the only way she could think of: wrapped in plastic bags and placed in the trash receptacle of her apartment building.

The prosecution of this woman echoes similar cases in Idaho, Massachusetts and South Carolina.  In spite of ever-increasing restrictions, abortion is legal through the second-trimester throughout the United States, although it is inaccessible to many women.  Yet if women safely end their pregnancies without medical supervision, they face criminal penalties.

The key word here is “safely.” There are many misconceptions about what happens during a non-surgical abortion.  In fact, abortion with medications (such as misoprostol alone or in combination with mifepristone) causes a miscarriage.  The symptoms of abortion with medicines in the first trimester are exactly the same as a miscarriage, and as safe.  Rarely do women who have a miscarriage need medical attention; the same is true for women having a medication abortion.

In the second trimester, the risks of a complication after a miscarriage, whether occurring spontaneously or provoked by medicines, is somewhat higher.  However, it is notable that the woman in New York City, like the women prosecuted in three other states, was in the second trimester and did not require any kind of medical intervention after her abortion.  We have to ask then – is the outcry when women choose to self-induce truly driven by the need to protect the health and safety of the woman?  Or is this another example of over-regulation because of the politics of abortion? Read the rest of this entry →

The New GOP Restrictions on Medical Training for Abortion Providers Could Have Killed Me

7:41 am in Uncategorized by RH Reality Check

Written by Elizabeth Hundley Finley for – News, commentary and community for reproductive health and justice.

In their latest attempt to restrict access to abortion care, Republicans in the U.S. Congress have passed an amendment that would prevent medical students and residents from learning how to safely perform basic medical procedures used to perform abortions, address miscarriages, or treat women suffering from other gynecological problems.  As someone who required surgery after a miscarriage, I find this measure particularly offensive. 

On April 16, 2010, my husband and I found out we were expecting our first child.  Overjoyed, we started to navigate the overwhelming process of having a baby as upper-middle class Americans. (Any new-ish parent knows this starts long before you get to decisions about feeding.)  We ate “brain-building” foods.  We put an unreasonable amount of thought into finding the right nursery paint, ultimately choosing a gender-neutral, VOC-free, soothing gray with a yellow ceiling. We talked about naming the baby – boy or girl – after my late father.

My pregnancy was relatively easy.  I had the nausea, but not the morning sickness. I gained a little bit of weight, but it all went to my boobs. I had some on and off spotting, but an ultrasound always confirmed the baby was okay: We always saw a baby that was the right size for the gestational age. We always saw and heard a heartbeat.

We followed common wisdom not to share the pregnancy until the end of the first trimester, and waited until a Memorial Day visit to tell my husband’s family about the baby. We had plans to tell my family the next weekend. Seeing increasing spotting – this time with cramping – and feeling uneasy, I called my doctor Thursday morning.

My doctor arranged an appointment with the lead obstetrician in the practice. He performed a physical exam, and reassured me, “Everything looks okay. We’ll do an ultrasound just in case.” I waited an hour as the non-emergency, last-minute patient squeezed into the day’s schedule. Everything was not okay. We saw a baby, but no heartbeat.  My pregnancy was supposed to be twelve weeks along, but the baby was the size of a ten-week-old: It hadn’t been alive for almost two weeks.  I had had a missed miscarriage – when the baby dies but stays inside the mother’s body. … Read more

Reproductive and Sexual Health in the States: Two Steps Forward, Several Steps Back

6:51 am in Uncategorized by RH Reality Check

Written by Rachel Gold and Elizabeth Nash for – News, commentary and community for reproductive health and justice.

By the end of March, 825 measures had been introduced in the 44 legislatures that have convened so far in 2010. Five legislatures (Mont., Nev., N.D., Ore. and Texas) do not meet this year, and North Carolina does not convene until May.

To date, seven new laws impacting reproductive health and rights have been enacted. Among the most noteworthy are measures:

  • mandating comprehensive and medically accurate sex education in Wisconsin;


  • allowing medical providers in Maine to prescribe or dispense a drug for treatment of STIs for a partner of a patient without first seeing the partner;


  • criminalizing self-induced abortion or miscarriages caused “intentionally or knowingly” in Utah;

  • requiring an abortion provider in Utah who performs an ultrasound before an abortion to show the woman the image and offer her the option of receiving a description of it;


  • requiring an abortion counselor in Utah to inform a woman seeking an abortion that the state’s counseling video is available online; allowing for an additional penalty for the murder of a pregnant woman in Wyoming; and


  • permitting a health care professional in Idaho to refuse to provide services related to abortion or family planning.


In addition to these laws, 49 other bills have been approved by at least one chamber of the legislature, and some interesting trends are beginning to emerge.

Treating Partners for STIs

In 2009, six states moved to expand access to STI testing, treatment and prevention by enacting legislation allowing a health care provider to prescribe STI treatment for a patient’s partner without having examined the partner. So far this year, legislators have introduced similar measures in seven states (Conn., Maine, Mo., Neb., Okla., R.I. and Wis.) to permit so-called “expedited partner treatment.” The enactment of legislation in Maine at the end of March brings to 15 the number of states with such provisions. 

The new law in Maine allows partner treatment for all STIs, as would the bills pending in three states (Neb., Okla. and R.I.). The bills in the remaining three states would be more limited. The Connecticut and Missouri measures would permit treatment only for Chlamydia and gonorrhea. The Wisconsin bill, which has been approved by the Senate and is awaiting action in the Assembly, would permit treatment only for Chlamydia, gonorrhea and trichomoniasis.

Insurance Coverage of Abortion

Given the visibility of abortion in the national debate over health care reform, it is not surprising that the issue is also garnering widespread attention at the state level. Action at the state level is clustering into two distinct categories—coverage under insurance policies currently being written in the state and coverage in policies that will be offered through the insurance exchanges created under health care reform. 

Measures have been introduced in three states (Kansas, N.H. and Okla.) that would restrict or prohibit insurance coverage of abortion under plans currently being written in the state. Bills pending in Kansas and Oklahoma would restrict coverage offered under all such plans. The measures in Kansas would permit abortion coverage only in cases of life endangerment, rape and incest; they would allow broader coverage only under riders purchased by individuals. Oklahoma currently permits abortion coverage beyond cases of life endangerment, rape or incest only through purchase of a rider. The pending legislation would ban coverage of all “elective” abortions without defining the term, potentially limiting coverage to cases of life endangerment; the rider option would be eliminated. Five states currently restrict insurance policies (see Restricting Insurance Coverage of Abortion).

Measures specifically targeting abortion coverage in plans offered to public employees are pending in five states (Ariz., Kansas, N.H., S.C. and W.Va.). The bill in Kansas would permit coverage only in cases of life endangerment, rape and incest; the Arizona measure would permit coverage in cases of life endangerment or possible “substantial and irreversible impairment of a major bodily function.” The bills in South Carolina (a state that currently restricts coverage to cases of life endangerment, rape and incest) and West Virginia would prohibit coverage of abortion with no exceptions. The South Carolina bill has been approved by the House and is pending in the Senate. Twelve states restrict abortion coverage for public employees (see Restricting Insurance Coverage of Abortion).

Measures introduced in four states (Iowa, Miss., Mo. and Tenn.) address the question of insurance coverage in the health exchanges that will eventually be established under the national health care reform legislation. Bills introduced in Missouri, Mississippi and Tennessee would block coverage in exchanges created by either the federal or state government. The Mississippi measure failed to receive committee approval by the deadline for action. The Missouri bill would allow coverage for abortion only if the woman’s life is at risk. The Tennessee measure would completely prohibit coverage of abortion. The Iowa measure would only allow abortion coverage when necessary to protect the woman’s life, if the coverage is purchased by the state via a “trust fund” that would be created as part of health reform.

Ultrasound Requirements for Women Obtaining an Abortion

So far this year, legislators have introduced 32 measures in 17 states seeking to involve or further incorporate ultrasound into abortion services. They range from bills that would require providers to offer information about ultrasound to those that would mandate not only that an ultrasound be performed, but also that the woman be shown the image. 

Measures pending in 13 states would require abortion providers to offer some information or services related to ultrasound. Bills pending in nine states (Ala, Iowa, Ind., Kansas, Mass., Neb., N.J., N.Y. and S.C.) would require abortion providers to offer information related to ultrasound, and/or to provide the woman with information about where she can obtain the procedure. Bills in four of these states (Iowa, N.J., N.Y. and S.C.) as well as four others (Ill., Md., Mo. and W.Va.) would require an abortion provider to offer a woman seeking an abortion an ultrasound. Currently, eight states require verbal counseling or written materials to include information on accessing ultrasound services. Three states require that a woman be provided with the option to obtain an ultrasound (see Requirements for Ultrasound).

In March, a measure to add requirements for providers performing an ultrasound in preparation for an abortion was signed into law in Utah; a similar measure is awaiting action by the governor in West Virginia. The Utah measure requires providers to display the ultrasound image and to offer the woman the option of a verbal description. The West Virginia bill would require providers to offer the woman the option to view the image. With the addition of Utah, nine states currently regulate the performance of ultrasound when performed as part of preparation for an abortion (see Requirements for Ultrasound).

To date, legislators in 10 states (Alaska, Ala., Kansas, Ky., La., Okla., R.I., S.C., Va. and W.Va.) have introduced measures to mandate the performance of an ultrasound prior to any abortion procedure; two of these bills have seen significant action. In Virginia, a measure passed the House but was defeated in the Senate. And in Oklahoma, a bill is pending in the House after having been approved by the Senate. The Oklahoma bill would require that the provider display and describe the image to the woman, although she would be entitled to “avert” her eyes; it is virtually identical to legislation enacted in the state in 2008 that was struck down by the court on procedural grounds. Three states require the performance of an ultrasound on any woman seeking an abortion, and require the provider to offer the woman the opportunity to view the image (see Requirements for Ultrasound).

Click here for:

Summaries of major state legislative actions so far in 2010

A table showing legislation enacted in 2010

The status of state law and policy on key reproductive health and rights issues

Feticide Laws: The Conservative Analogue to the 50-State Strategy

7:09 am in Uncategorized by RH Reality Check

Written by MakoSharkEsq for – News, commentary and community for reproductive health and justice.

There are 3 clear ways that feticide statutes being passed in various states are problematic.

Feticide: Recklessness and Speculation

The first problem is attempted feticide.

All crimes with a mental state above negligence have a corresponding "attempt crime:" Attempted rape, attempted larceny, attempted murder, and so forth.  The thing about attempt crimes is that we’re convicting people for acts that are not in themselves illegal but which represent a substantial step in a criminal algorithm.

For example, it’s totally legal to buy a knife. It’s legal to visit your ex-spouse’s house. It’s illegal to stab your ex-spouse. But the rub about attempt crimes is this: How far back in the timeline do we mark where the substantial step has been taken? The purchase of the knife?  Nope, a whole lot of innocent people would be convicted.  The visit to the ex-spouse’s house maybe?  It could be construed as "reconnoitering" and/or "lying in wait" [but only if you have the kitchen knife with you].

What I’m highlighting is the fact that attempt crimes are prospective — and therefore speculative. That’s not a problem if the police apprehend the person during the commission of the act.  But it’s definitely a problem before the commission of the act if you’re arresting someone just for "buying a knife" [so to speak] or for reading an outrageous book, for example.  Insert any innocent act that you speculate could be the beginning of a criminal scheme.

Conservatives argue that the more "prospective" [ie, speculative] our approach is to attempt crimes, the more lives we’ll save. As we saw in the Iowa case, attempted feticide has an extremely strong potential for flights of speculation. Because we treat pregnancy like an eggshell, we perceive everyday dangers to the fetus in even the most innocuous acts. My friend, a father-to-be at the time, was an alarmist about acts done by his wife that might lead to miscarriage.  "Don’t lift anything over your head! It causes miscarriage!"  You may think that example is absurd because the speculation is absurd — but it underscores the ways in which everyday people [jury fodder] can be so manically protective of a fetus that even wild speculation is suddenly not so unlikely. 

We can all agree that punching a pregnant belly may indicate an intent to harm the fetus. But the mental standard originally used in the Utah bill was less than intent; it was recklessness.  Recklessness is the willful disregard of a known risk, whereas [in those terms] negligence would be ignorance of a risk that you should have known [and thus exercised care] but didn’t.

So, if the bill in Utah had passed with the standard of "recklessness," would heavy lifting during pregnancy be "reckless?" Whether evidence beyond a reasonable doubt exists to suffice a conviction depends on the jury. But heavy lifting would certainly be enough for probable cause for an arrest [the police only need to justify 51 percent likelihood]. If you doubt the likelihood of this kind of speculative arrest, refer to what happened in Iowa — where someone fell down the stairs and the police presumed an intent to kill the fetus simply because she’d contemplated an abortion months earlier in the first trimester. 

I thought about going to Starbucks months ago, but that fact isn’t probative of whether I intended to go on the day in question. But again: crazy speculation’s suddenly "reasonable" when you’re dealing with pregnancy. With only the speculation of the doctor and nurse, the police still had probable cause to arrest [remember: just 51 percent likelihood suffices for probable cause]. 

So what’s the big deal, you say. You need evidence beyond a reasonable doubt to convict, you say. And they let her go, you say.  Well, for warrantless arrests with enough probable cause to arrest but not enough to detain, you get 48 hours of fun in jail [even though the evidence against you is mere 51 percent likelihood of some event] while the State scrambles to get enough evidence to suffice for your Gerstein hearing [where they prove probable cause to detain].

If they don’t get it in 48 hours, they have to let you go — which is little consolation for the "shower incident" that occurs while you are in jail. 

What’s worse is that the issue of a person’s intent, recklessness, or negligence is a question of fact answered by a jury not a question of law answered by a judge. And that should trouble you very, very much. "Oh she definitely intended to kill that baby! I know it!" or "She definitely knew the risk involved but did it anyway!"

Search, Seizure and Your Lack of Privacy 

The second problem with feticide statutes is a search and seizure issue I realized while contemplating the Iowa case.  There is no physician-patient privilege under the federal rules of evidence.  And regarding state law, few states recognize a physician-patient privilege and the ones that do only offer immunity under certain circumstances.  People typically derive some privacy protection from HIPPA, but HIPPA doesn’t create a physician-patient privilege.  It only establishes certain privacy protocols.

What’s more, many states have enacted statutes that place an affirmative duty on hospitals, clinics, teachers, and others to notify the police with evidence creating suspicion of certain crimes [like rape, homicide, child abuse]. That evidence includes what a patient says in the course of the visit.

For example, if a minor while seeking birth control mentions offhand that she had sex with an adult, the clinic is obligated to report that.  Now the problem arises when those two concepts interact under a suspicion of attempted feticide.  Since feticide is in the homicide family, there would be the same affirmative duty to report evidence of an attempted feticide. And so, a doctor’s mere speculation about the patient’s motives authorizes him to reveal otherwise private information that the patient disclosed under an assumption of confidentiality.  In the Iowa case, that’s how the police knew the woman in question had contemplated abortion months ago. She told her doctor in confidence. Acting under the suspicion of feticide, the doctor alerted the police.  Now, let’s say your doctor isn’t a crazy hysteric and protects your privacy, but your husband’s a hysteric because he’s eager to be a father and manic about all the possible ways you’re risking miscarriage. So he makes the call to the police. The police talk to the doctor, but the doctor is on your side.  So the police ask the DA for a warrant and the DA finds an amenable magistrate that signs the warrant. Now, the doctor must comply and divulge the information you disclosed — because there’s no physician-patient privilege. 

Significant legal issues arising from this: In an investigation of whether a suspicious act was feticide, can a warrant compel a doctor to disclose a patient’s abortion history to be used as evidence of intent?  In an investigation of whether a suspicious act was feticide, can a warrant compel a doctor to disclose a patient’s prior statements incident to an abortion or contemplating an abortion? 

Opening the Backdoor to Fetal Personhood:

The third problem with feticide statutes is that they’re a backdoor to fetal personhood.  The Republicans are executing a "50 State Plan" of their own that involves enacting feticide statutes in a majority of states and passing fetal personhood amendments to the constitutions of a sizable minority of states.  These constitutional amendments would have no legal effect [pursuant to Roe].  And the feticide statutes are careful not to describe the fetus as a "baby" or person [otherwise they'd be unconstitutional under Roe].  However, notwithstanding their legal ineffectiveness, the practical effect of these amendments would be to change the Supreme Court’s (SCOTUS) perception of the right to abortion [vis-a-vis the right to privacy] as a fundamental right.

That perception would be affected because SCOTUS is generally reluctant to declare that a right is "fundamental" — doing so disables the states’ ability to regulate the issue.  And so, as it did in Lawrence v. Texas, SCOTUS looks at whether a majority of states have already recognized the right in their constitutions or in case law.  If so, then they’ll take it a step further and declare that the right is fundamental — thereby bringing the minority of states up to par with the liberty offered in the majority.

Note that this isn’t the only consideration in the creation of a fundamental right obviously, but it is something they look at.  And so, if "enough" states outright reject an existing fundamental right [one as controversial as the right to abortion], then it follows that SCOTUS will consider that too and destroy the fundamental right — relegating it back to state regulation.  Scalia has intimated several times that the states’ constitutional perception of the right to abortion [collectively speaking] would be fodder for destroying the right.

Feticide statutes contribute to this plan the same way.  By creating a nebulous standard of review for the regulation of abortion, Planned Parenthood v. Casey effectively created an intermediate status for the fetus [a kind of "quasi-personhood"] and subsequent state cases have recognized a government interest in protecting fetal life.

Using that framework, feticide statutes effectively elevate the status of fetuses towards "nigh-personhood" — which obviously has negative implications for Roe on review.  That isn’t Planned Parenthood propaganda. It’s clear.  Homicide is an act that kills a person. 

Battery is an act that offends [via touch], injures or destroys a part of a person. If you chop off a person’s finger, that’s called battery, not "phalangicide." A finger is a component of a person, not a person itself.  But if you call this act "phalangicide" and criminalize it, then obviously you’re treating the finger almost as a person.

Feticide statutes are included in the family of homicide rather than the family of battery. Why? Since the conservatives can’t actually call a fetus a person [because the Court has already ruled that it's not], they instead purport to treat the fetus as a person to the extent allowable under Casey. In the last 30 years protection of the fetus has increasingly risen to the level of what I call "nigh-personhood." The trend is clear and its purpose is clear.

Utah Continues Reckless Efforts to Lock Up Pregnant Women

6:45 am in Uncategorized by RH Reality Check

Written by Lynn Paltrow for – News, commentary and community for reproductive health and justice.

On Thursday, a Utah legislator withdrew a bill that would have allowed sentences of up to life in prison for a woman who experienced a miscarriage or stillbirth as a result of her “reckless” behavior. This move has been attributed to a “firestorm” of opposition.  Almost immediately, however, Utah legislators revised the bill to exempt women who commit reckless acts but to permit the prosecution of women who commit “knowing” acts that may result in stillbirths and miscarriages from the earliest stages of pregnancy.

What does this mean? Under this bill, pregnant women who “know” that their cancer medications or other prescription medications could risk harm or cause pregnancy loss could still be arrested. Pregnant women who stay with abusive husbands who they “know” to be angry about the pregnancy could still be arrested under this law. Pregnant women who continue working in jobs they “know” pose hazards to their pregnancies could still be arrested under the law. And even pregnant women who “know” from reading the side of their cigarette packages that smoking is hazardous to their pregnancies could be arrested under this law.

Representative Wimmer, the bill’s sponsor, has assured critics that the bill would only be applied “in the most glaring of cases.” But whatever his intention, cases from around the country demonstrate that once law enforcement officials have the discretion to arrest, and judges have the opportunity to interpret the law, legislators no longer have control. In fact there have already been cases where government officials seeking to protect the “unborn” have sought to keep pregnant women from obtaining cancer treatment.

Moreover, sending the message that what women “know” and do while pregnant may be a crime also influences how doctors and nurses treat pregnant women. They become less likely to help women and more likely to judge them. In Iowa, it was a health care provider who called the police when a distraught pregnant woman sought help after she fell down a flight of stairs. The young woman was arrested for “attempted feticide.” The police eventually withdrew the charge but only after this young mother had been taken into custody, spent several days in jail and several weeks terrified about what was going to happen next.

If the Utah bill becomes law, a pregnant woman whose health care provider reports her to the police will not be comforted by the fact that, eventually, someone might decide that her actions were merely “reckless” and not “knowing.”

Some supporters of the bill would claim that this bill is really just about punishing women who intentionally seek to “self-abort.” For people who profoundly oppose abortion, it seems logical that legislation could be carefully crafted to distinguish between pregnant women who seek to terminate their pregnancies and those who do not. Criminal laws, however, depend on application of intent standards and are enforced by police officers and prosecutors who have extraordinary discretion in deciding who will and will not be arrested. Because everything a pregnant woman does or does not do can affect pregnancy outcome, it is hard to come up with an example of a law that could be applied only to women who “truly” intend to end their pregnancies while ensuring that pregnant women who do not intend to terminate their pregnancies or risk harm to their fetuses are protected from police investigation, interrogation, arrest, and prosecution.

Even if this Utah bill were carefully crafted (and it is not), its main purpose clearly is not to advance a culture of life, but rather to advance laws that permit imprisonment of pregnant women. The description of the bill explains its purpose as removing  “prohibitions against prosecution” of women. In other words – Utah apparently aspires to be the first state to admit that the purpose of an anti-abortion law is not to stop doctors from performing abortions, but to lock-up women who have them.

In fact, this bill was created out of frustration that no law existed that could be used to imprison a 17-year-old girl. According to its sponsor, Utah’s HB 462 was passed to respond to a case in which a desperate a pregnant teenager hired someone to attack her and cause her to lose the pregnancy. It should be clear, however, that any young woman who is desperate enough to invite violence against her – violence that could have caused her own death — is not going to be deterred by this law.

Imprisoning this teenager who survived and gave birth to a healthy baby would cost taxpayers approximately $30,000 a year. If the real purpose of the law were to prevent this kind of thing from happening again, the state could invest, for example, in Backline, an organization that could provide non-judgmental counseling to women struggling with their pregnancies.

The real purpose of the Utah bill, however, is to make it possible to police pregnant women and to imprison them as murderers. That deserves a firestorm of opposition as well.

Caution: Pregnancy May Be Hazardous to Your Liberty

6:25 am in Uncategorized by RH Reality Check

Written by Lynn Paltrow and Farah Diaz-Tello for – News, commentary and community for reproductive health and justice.

While our country stands at a deadlock over legislation to ensure that millions of uninsured people have health care coverage, we can at least feel confident that some state legislators are hard at work, making it more difficult for women to access health care and much easier for states to put them, and the people who help them, in jail.

In Mississippi, legislators proposed a law, HB 695, which would make many forms of midwifery a crime.  That is clearly bad for pregnant women and for babies for at least one very simple reason. As the White Ribbon Alliance for Safe Motherhood pointed out after Hurricane Katrina, when hospitals shut down as a result of a disaster, midwives are among the few who know how to deliver babies without electronic fetal monitors, surgical theatres or epidurals. For this reason, the Alliance highlighted the need to protect (not criminalize) midwives who have the skills needed under such circumstances.

When disasters hit, however, it is not only the women who are going to term who are in trouble. As the National Network of Abortion Funds found out after Hurricane Katrina forced abortion providers to close their doors, many women were also left without access to urgently needed abortion services.

If Utah lawmakers have their way, a woman under similar circumstances who attempts to take matters into her own hands could be charged with murder under House Bill 12, the state’s effort to outlaw “self-abortions.”

Right-to-life organizations have long maintained that if abortion were outlawed, only doctors who performed the abortions would go to jail.  But Utah’s proposed law ensures that women themselves, and not just those who help them, will be incarcerated for a minimum of 15 years. (Since 61 percent of women who have abortions are already mothers, a woman convicted under this law would, with any luck, be out of jail in time to see her son or daughter graduate from high school.)

Even without such a law, police officers in Iowa recently arrested a woman in her second trimester of pregnancy for the crime of attempted feticide after she tripped and fell down a flight of stairs. The county attorney’s office dropped the case only after they decided that their unprecedented interpretation of the feticide law should only be applied to pregnant women in their third trimester. But in Utah, the law would expressly apply to pregnant women at all stages of pregnancy. So, if you are pregnant and clumsy in Utah, you could be charged with attempted murder, even in the first trimester.

As a sign-on petition opposing the Utah bill points out, pretty much any woman who suffers a miscarriage or stillbirth and is engaged in an activity that she “should have reason to know” would endanger her fetus can now be charged with murder or attempted murder.

Suffer a pregnancy loss after a car accident you may have caused?  Murder.  Follow your doctor’s advice to treat your cancer despite the risks it might pose to your unborn child? Attempted murder.

Bizarrely, the Utah law has an exemption that protects women who “fail to follow medical advice,” but nothing in the law protects women who do follow medical advice. Thus women who disagree with a doctor’s advice to have cesarean surgery can’t be prosecuted, but a woman who takes prescription medications that may risk harm to an unborn child could end up behind bars.

Meanwhile, in Kentucky, House Bill 136 would create a new crime just for pregnant women. According to this law, “[a] woman is guilty of substance endangerment of a child prior to birth when, knowing she is pregnant, she causes her child to be born” with controlled substances or alcohol in the child’s bodily fluids. What that means is that, if this law is passed, it would literally be a crime for a pregnant woman to give birth if the child she gives birth to has any amount of a controlled substance or alcohol in its body.

It is well known that laws which threaten to punish women who carry their pregnancies to term in spite of a drug or alcohol problem place substantial pressure on women to have unwanted abortions. This is because it is hard for people to overcome an addiction quickly (just ask Rush Limbaugh). For pregnant women who face many barriers to treatment, there is no guarantee that they will be cured quickly enough to be sure they won’t be arrested if they go to term. Such laws are also known to deter women from care, increasing the risks to maternal, fetal and child health. It would be nice to think that Kentucky legislators did not mean to make it a crime for some woman to cause their children “to be born,” but the fact that this law has been proposed over the objections of every leading health group makes us wonder.

And finally, we wonder about Nebraska’s commitment to protecting fetuses from pain. Nebraska House Bill 1103 would protect some fetuses from pain by banning virtually all women from obtaining abortions after the 20th week of pregnancy.  Although abortions after 20 weeks of pregnancy are extremely rare (constituting only 1.5 percent of all abortions), and the doctors who perform them are heroes to the women who need such procedures, this law would make those doctors criminals.

The Nebraska legislators who support this bill claim that after 20 weeks of pregnancy an unborn child is capable of experiencing substantial pain. Certainly, if this is true, then fetuses must also suffer pain from forceps deliveries, internal electronic fetal monitoring (requiring the insertion of sharp metal wires into the delicate fetal scalp) and from chemically induced labor in which the fetus is subjected to repeated, violent maternal uterine contractions and then forced through the narrow vaginal canal. If Nebraska legislators were truly committed to preventing fetal pain, then they should also ban pitocin-induced vaginal births and other fetal-pain inducing delivery techniques and arrest the doctors who carry them out.

The lawmakers supporting these bills claim that they are trying to bar bad things from happening to pregnant women and the unborn. But whatever their stated good intentions, make no mistake, these bills are really about putting pregnant women and the people who support them behind bars.