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.

Written by Lynn Paltrow for RHRealityCheck.org – 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.

Written by Lynn Paltrow and Farah Diaz-Tello for RHRealityCheck.org – 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 20^th 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.

Written by Amie Newman for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

When Virginia Del. Bob Marshall publicly stated his desire to defund Planned Parenthood in his state (they receive a whopping $35,000 in Medicaid reimbursements NOT for abortions, but for primary reproductive and sexual health care for women, men and young people), he used his interpretation of certain Biblical passages to justify his positions. He said:

"The number of children who are born subsequent to a first abortion with handicaps has increased dramatically. Why? Because when you abort the first born of any, nature takes its vengeance on the subsequent children," said Marshall, a Republican.

"In the Old Testament, the first born of every being, animal and man, was dedicated to the Lord. There’s a special punishment Christians would suggest."

In other words, a disabled child is a punishment from God doled out to the child’s mother for having had a prior abortion. Putting aside the fact that his claim that “the number of children who are born subsequent to a first abortion with handicaps has increased dramatically” has no basis in reality and no evidence-based studies to back it up, let’s examine what these remarks are meant to convey.

What so many have found offensive is the insensitivity he’s displayed towards disabled children and their mothers. Disabled children are a punishment? And women, these children’s mothers, are characterized as receivers of a “special” type of vengeance?

Although his comments seem particularly hurtful as they pierce the hearts of mothers and disabled people everywhere, this meme is exactly what we’ve come to expect when it comes to issues surrounding women’s bodies, health, and lives. From placing blame upon the victims of rape and sexual assault to declaring that breast cancer is bestowed upon those women who dare to remain childless to deciding that women who don’t remain celibate outside of marriage must pay for their decisions to have sex by carrying a pregnancy to term against their will, right-wing, ultra-extremist Christians have staked their claim on what women can and cannot do with our bodies by endlessly repeating the “you get what’s coming to you” line. In essence, women’s sexual and reproductive capacities are inherently evil and must be delicately controlled by the steady hand of the men who know best.

When it comes to pregnancy prevention and the use of contraception, for example, the Christian right is clear: if women have sex outside of marriage, we must “pay the price.” It’s framed as “living with the consequences of one’s decision” so the paternalistic desire to control women’s bodies is brilliantly turned into a call for women to take personal responsibility but the underlying premise is clear: women must know where our free will begins and our options end. If you are a woman and you commit the “sin” of sex for pleasure, you have given up the “privilege” of bodily autonomy.

In fact, fundamentalist Christian and far-right ideology (which includes the anti-choice movement) is not only against access to abortion. It has become, in recent years, vehemently anti-contraception as well. However, in the various scenarios and protests about these issues, it is never the married, heterosexual woman who is targeted because they are abiding, however superficially, by Judeo-Christian principals.

It’s the young woman, not married, who dares to engage in sex-for-pleasure or finds herself the victim of a rape or sexual assault who is in the cross-hairs of the ultra-right wing’s weapon of choice: shame and blame. It is the woman in Texas in 2004, the victim of a rape, who comes face-to-face with a pharmacist who refuses to fill the legal prescription because “his religion says she shouldn’t have it.” If women dare think we can “get away” with engaging in sex outside of marriage (regardless of ones’ sexual preference), or that we think we are not responsible in some way for the assault upon our body, we are mistaken. For our sins, the wrath of an almighty, angry God will appear in the form of an unintended pregnancy that we should be forced to carry to term.  It’s an odd juxtaposition with the public messaging put forth by the ultra-conservative, Christian right that says that no matter what – babies are always a blessing, and that anything we do to prevent that blessing from being bestowed upon us is wrong. It takes only a moment of reflection to realize that what they are really saying is: unintended pregnancy for women who have sex outside of marriage, forced or not, while using birth control or not, is a curse disguised as a blessing for those women who sin.

In a similar sentiment, the spate of bills and laws popping up around the country from Utah’s bill proposed and pushed by right-wing, conservatives that seeks to criminalize women who have miscarriages to “feticide” laws stemming from our Unborn Victims of Violence Act that have been used around the country to punish women who may dare to wittingly or not place their fetus in danger, we codify the Christian right’s patriarchal, anger towards women.

While we may be shocked at Virginia Delegate Bob Marshall’s callousness, it should not surprise anyone who pays attention to the right-wing, anti-choice, Christian conservative messaging and agenda for the women and girls of this country: Do not forget that the reproductive and sexual capacities of the female body are wholly owned and operated by the Christian right acting as ambassadors of a God on the side of the patriarchy.

Written by Senator Steve Urquhart for RH Reality Check – News, commentary and community for reproductive health and justice.

The documentary video included with this article was produced by STV Productions.

My legislative district in St. George, Utah is conservative, and I am conservative. Yet, I am running legislation to promote contraceptive education. Why? Well, I’ll tell you.

Though we can — and should — wrestle to our heart’s content on issues of correct curriculum, three facts remain at the end of the day, independent of political affiliation: humans like sex, some kids are going to have sex, and information can avert tragedy. My task in working with a conservative district in a conservative state is to implement policy that balances those three realities with strong public preferences for local control and an abstinence message to youth.

As the legislative process kicks, pokes or promotes my bills, I realize that it is moving my legislation where it needs to be. Those prompts, as well as the end result, would be different in different states. And that’s appropriate. It leads to a representative and responsive government.

Here’s the story of how sex ed has been kicked, poked and promoted in Utah.

Last year, Rep. Lynn Hemingway, a Democrat, ran a sex ed bill. The system told Lynn that he needed Republican involvement in a legislature with Republican supermajorities in the House and in the Senate. On a different bill — involving expedited partner therapy for chlamydia and gonorrhea — the process told me that I needed to pay more attention to the sexual health of Utah’s teens.

My immediate involvement in sex ed was to augment local control elements — with districts, instead of the state, determining how instruction would be delivered. Even then, the process told us that we didn’t move enough toward local control. Local districts would need to have more control in preparing instructional materials.

The process taught us that talismanic language in existing code cannot be touched. Thus, SHALL NOT language has to be preserved regarding things that can’t be taught (e.g., same-sex relationships and kama sutra stuff); the key is to clarify that, even with those restrictions, contraceptive education does not violate state policy and curriculum.

Put it all together, and I believe we will pass a bill that improves existing sex ed instruction (where 36 out of 40 districts claim to include contraceptives discussions) by requiring districts to publicly examine sex ed instruction every three years (thus making sure actual instruction is matching policy) and by clarifying that contraceptives can be discussed in Utah classrooms. Importantly, districts also will be required to notify parents that instructional materials on contraceptives have been prepared by the state and the district, if the district desires. Parents, being in charge of the sex educations of their children, can review and discuss those materials with their children. It is simply a tool that parents can utilize.

I believe that Utah will pass legislation that empowers parents and children regarding sexual matters. I believe that every state can get there, by pointing the passion that parents have on the issue of sex ed toward the healthy discussions that can occur in legislative bodies honestly looking for solutions to society’s complex problems.