Written by MakoSharkEsq for RHRealityCheck.org – 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.