A bill passed by the Utah House and Senate this week [6] and waiting for the governor's signature, will make it a crime for a woman to have a miscarriage, and make induced abortion a crime in some instances.
According Lynn M. Paltrow, executive director of National Advocates for Pregnant Women, what makes Utah's proposed law unique is that it is specifically designed to be punitive toward pregnant women, not those who might assist or cause an illegal abortion or unintended miscarriage.
The bill passed by legislators amends Utah's criminal statute to allow the state to charge a woman with criminal homicide for inducing a miscarriage or obtaining an illegal abortion. The basis for the law was a recent case in which a 17-year-old girl, who was seven months pregnant, paid a man $150 to beat her [7] in an attempt to cause a miscarriage. Although the girl gave birth to a baby later given up for adoption, she was initially charged with attempted murder. However the charges were dropped because, at the time, under Utah state law a woman could not be prosecuted for attempting to arrange an abortion, lawful or unlawful.
The bill passed by the Utah legislature would change that. While the bill does not affect legally obtained abortions, it criminalizes any actions taken by women to induce a miscarriage or abortion outside of a doctor's care, with penalties including up to life in prison.
"What is really radical and different about this statute is that all of the other states' feticide laws are directed to third party attackers," Paltrow explained. "[Other states' feticide laws] were passed in response to a pregnant woman who has been beaten up by a husband or boyfriend. Utah's law is directed to the woman herself and that's what makes it different and dangerous."
In addition to criminalizing an intentional attempt to induce a miscarriage or abortion, the bill also creates a standard that could make women legally responsible for miscarriages caused by "reckless" behavior.
Using the legal standard of "reckless behavior" all a district attorney needs to show is that a woman behaved in a manner that is thought to cause miscarriage, even if she didn't intend to lose the pregnancy. Drink too much alcohol and have a miscarriage? Under the new law such actions could be cause for prosecution.
"This creates a law that makes any pregnant woman who has a miscarriage potentially criminally liable for murder," says Missy Bird, executive director of Planned Parenthood Action Fund of Utah. Bird says there are no exemptions in the bill for victims of domestic violence or for those who are substance abusers. The standard is so broad, Bird says, "there nothing in the bill to exempt a woman for not wearing her seatbelt who got into a car accident."
Such a standard could even make falling down stairs a prosecutable event, such as the recent case in Iowa [8] where a pregnant woman who fell down the stairs at her home was arrested under the suspicion she was trying to terminate her pregnancy.
"This statute and the standards chosen leave a large number of pregnant women vulnerable to arrest even though they have no intention of ending a pregnancy," Paltrow said. "Whether or not the legislature intended this bill to become a tool for policing and punishing all pregnant women, if enacted this law would permit prosecution of a pregnant woman who stayed with her abusive husband because she was unable to leave. Not leaving would, under the 'reckless' standard, constitute conduct that consciously disregarded a substantial risk," Paltrow explained.
While many states have fetal homicide laws most apply only in the third trimester. Utah's bill would apply throughout the entirety of a woman's pregnancy. Even first trimester miscarriages could become the basis for a murder trial.
Bird said she is also concerned that the law will drive pregnant women with substance abuse problems "underground;" afraid to seek treatment lest they have a miscarriage and be charged for murder. She said it directly reverses the attempts made, though a bill passed in 2008, to encourage pregnant women to seek treatment for addiction.
Paltrow added that the commonly thought belief that pregnant women who use drugs are engaging in behavior that is likely to cause a stillbirth or a miscarriage is wrong.
"Science now makes clear that drug use by pregnant women does not create unique risks for pregnant women, although it is likely that among those targeted for prosecutions by this statute will be women who go to term under drug usage," she said.
The bill does exempt from prosecution fetal deaths due to failure to follow medical advice, accept treatment or refuse a cesarean section. Bird said this exemption was likely because of a 2004 case where a woman who was pregnant with twins was later charged with criminal homicide after one of the babies was stillborn, which the state deemed due to her refusal to have a cesarean section.
Planned Parenthood and the ACLU of Utah worked together to "amend the hell out of the bill," Bird said. One of their few accomplishments was at least dropping the legal standard of "negligence" from the bill, a much lower standard than "recklessness."
Bird was shaken with emotion after the Senate vote. "I broke down and cried," she admitted. "I normally never let these kind of [legislative] battles get to me."
"What really sucks is that we had three supposed allies in the Senate, three [Democratic] women, who voted for the bill," Bird said, adding she didn't yet know why the three senators switched votes.
Marina Lowe is legislative and policy counsel for the ACLU of Utah. She worked in tandem with Bird on trying to derail or at least mitigate the worst aspects of the bill. Lowe says at this point she doesn't know if there is a potential constitutional challenge to the law once it is signed by the governor.
But she points to cases like the one in Iowa [8] as exactly the kind of situation that might arise once this law is put into place.
Paltrow says this bill puts a lie to the idea that the pro-life movement cares about women.
"For all these years the anti-choice movement has said ‘we want to outlaw abortion, not put women in jail, but what this law says is ‘no, we really want to put women in jail.'"