What Utah’s Miscarriage=Homicide Laws Could Mean: Some Scenarios

Dear CF,

Your post about the pregnant Olympians was so damn good, and so timely: I opened the Internet the next day and found this news on legislation in Utah, which would allow any woman whose pregnancy ended in miscarriage due to an “intentional, knowing, or reckless act leading to the pregnancy’s illegal termination.” If the Winter Olympics had been held in Salt Lake City this year instead of in 2002, every one of those pregnant Olympians would have risked being charged with homicide if they happened to have a miscarriage.

This is clearly one of those bills that stemmed from a sensational news story—the kind we love, the kind that 20/20 and its ilk have fed us for decades. Remember when everyone wanted to come up with some way to legislate away Megan Meier’s suicide, caused by Internet bullying? This bill—which does not allow women to be prosecuted for arranging a legal abortion—was passed because “a Vernal woman allegedly paid a man $150 to beat her and cause miscarriage but could not be charged.”

Easy to see how that story caught Utah’s imagination. Let’s sit a minute with the wording of that bill, though: any “intentional, knowing, or reckless act” followed by miscarriage can result in a woman being charged with homicide. As Jezebel and others have pointed out, that last little word, “reckless,” means that legally, anything that has ever been labeled as a suboptimal practice for pregnant women could be retroactively used to charge a woman whose pregnancy has ended. Correction: it can be used to charge a woman whose pregnancy has been “illegally terminated,” meaning not that she obtained a legal abortion but that she miscarried through some other means, the legality of which is to be determined by the circumstances leading up to the miscarriage.

To see how dangerous this is, let’s pretend we’re looking to prosecute a woman who miscarried. For this exercise, we’ll look to the newspapers to get a sense of what might reasonably count as “common knowledge” that a pregnant woman disregarded, neglected or disobeyed, and how any of the following cases could arguably have resulted from “reckless” behavior.

Case 1: She got pregnant. She didn’t get the swine flu vaccine. She got swine flu. She lost the baby:

On Sept. 29, 2009, the New York Times printed this story: “Pregnancy Is No Time to Refuse a Flu Shot,” in which authors Lyerly, Little and Faden note that pregnant women “are deluged with advice about things to avoid: caffeine, paint, soft cheese, sushi. Even when evidence of possible harm is weak or purely theoretical, the overriding caveat is, ”Don’t take it, don’t use it, don’t do it.'”

They point out that many pregnant women avoided the flu shot and got terribly sick or died:

This is a sadly familiar pattern. After the thalidomide disaster of 1960s, and the very real concerns it raised about the impact of drugs on fetal development, many ended up viewing the use of any medicine by pregnant women as anathema. As a result, doctors and women alike often eschew or discontinue medications for serious illnesses, even when the harms of untreated disease, for women and the children they bear, are worse than any risks of medication.

The Montreal Gazette puts it more strongly in their Dec. 2, 2009 headline: “Pregnant women urged to get shot; Only way to protect fetus, expert says.”

(Note the language here: The ONLY WAY to protect your fetus is to get the shot. It’s a cut-and-dried case. By avoiding the flu shot, our case study was reckless. The language of the bill specifies that her behavior could be  “intentional, knowing OR reckless.” There’s no need to prove all three.)

Case 2. She got pregnant. She DID get the swine flu vaccine. She lost the baby.

“Stillbirths deter women from swine flu shots,” printed January 24, 2010, in the South China Morning Post, in which “a nine months’ pregnant woman gave birth to a stillborn baby three weeks after receiving a swine flu vaccination, the second stillbirth case involving a vaccinated pregnant woman in a week.”

Case 3: She got pregnant. She exercised. She lost the baby.

The June 21, 2005 headline of The Globe and Mail: “Pregnant women especially prone to summer injuries, study finds.”

Case 4. She didn’t exercise enough. She lost the baby.

“No Excuse for a Pregnant Pause,” Washington Post, November 29, 2005, talks about how women who don’t exercise enough are endangering their babies.

Case 5: She got pregnant. She works on a farm. She lost the baby.

The January 12, 2002 Belfast News letter “WARNING FOR PREGNANT WOMEN AT LAMBING TIME” states that pregnant women “should avoid close contact with sheep during lambing periods, the Department of Health, Social Services and Public Safety (DHSSPS), the Department of Agriculture and Rural Development and the Health and Safety Executive for Northern Ireland have advised.”

Case 6. She got pregnant. She was depressed. She took antidepressants. She lost the baby.

“Pregnant women warned by FDA to Avoid Paxil,” Washington Post, December 5, 2005.

“Taking Zoloft During Pregnancy Leads to Birth Defects.” Lawyers and Settlements, June 7, 2007. “A recently published case-control study has shown that infants born to mothers who took selective serotonin reuptake inhibitors (SSRIs) after the 20th week of pregnancy were 6 times more likely to have persistent pulmonary hypertension (PPHN) than infants born to mothers who did not take antidepressants during pregnancy.”

Case 7. She got pregnant. She was depressed. She didn’t take antidepressants. She lost the baby.

“Dealing with Depression and the Perils of Pregnancy.” The New York Times, January 13, 2004. “Depressed women also have a higher rate of obstetrical complications and preterm deliveries, and a review of 11 studies has shown that they have 45 percent more miscarriages, said Dr. Gideon Koren, a pediatrician and the director of the Motherisk program at the University of Toronto, a risk-counseling service for pregnant women.”

Case 8. She got pregnant. She goes to the doctor as soon as she realizes it. There’s a birth defect. She lost the baby.

“That Prenatal Visit May Be Months Too Late.” November 28, 2006, New York Times. “The problem, doctors say, is that by the first prenatal visit, a woman is usually 10 to 12 weeks pregnant. ‘If a birth defect is going to happen, it’s already happened,’ said Dr. Peter S. Bernstein, a maternal fetal medicine specialist at Montefiore Medical Center in New York who helped write new government guidelines on preconception care.” So they’ve restructured their recommendation: “Public health officials are now encouraging women to make sure they are in optimal health well in advance of a pregnancy to reduce the risk of preventable birth defects and complications. They have recast the message to emphasize not only prenatal care, as they did in the past, but also what they are calling ‘preconception care.'”

Case 9. She got pregnant. She lost the baby.

“Study Finds 31% Rate of Miscarriage,” The New York Times, July 27, 1988. “Thirty-one percent of all conceptions end in miscarriage, usually in the early months of pregnancy and often before women even know they are pregnant, according to a new study.”

“Trying Again After Recurrent Miscarriages,” The New York Times, March 25, 2008. “More than half of pregnancies are spontaneously lost even before the woman has missed a menstrual period and knows that she is pregnant, and about 15 to 20 percent of recognized pregnancies are miscarried in the next few months. For couples who want a baby, these are daunting numbers.”

The point—which I hope I’ve made sufficiently clear—is that miscarriages happen all the time. The cause of a miscarriage is much harder to pinpoint than, say, the cause of death in a crime victim. To pretend that “homicide” is an appropriate category here is beyond irresponsible: it’s insane. It’s hopelessly unrooted from the physical realities of pregnancy, a high-risk biological process during which a million things can and do go wrong every day. Let me be clear: to impose a causal relationship where in the vast majority of cases there is none is to devolve to a legal system where witch hunts were sensible judicial proceedings.

The other point is that the above studies are meant to be helpful and not prescriptive. Here, scientific and legal process are at odds. These findings are published in order to add to a huge data set that will, over time, allow us to form some reasonable theories on how to proceed. They are not definitive. They are not proscriptive. Anyone who has been alive for more than ten years is familiar with the health fads the medical community cycles through, in which fat, sugar, salt, cholesterol and carbohydrates star in turn as the main medical threat to our immortality. In pregnancy, as in health, there is not a clearcut right answer. The medical profession understands this, and bases its recommendations on what amount to “best guesses”.

The legal system does not. This piece of legislation is opening the door to exactly the kinds of arguments I’ve made above. You might think some of the examples I’ve chosen are eccentric or ridiculous. They fly in the face of common sense. This is exactly my concern: common sense plays no part in legal argumentation, which is why legal phraseology is counterintuitive and why it is imperative that we get that phraseology right and eliminate “recklessness” from that bill. ‘Course, my hypotheticals are nothing compared to the legal arguments that get made in real life. As an example, I give you the following article, which offers this dubious hope: should any pregnant women end up jailed by this system (charged perhaps with attempted murder—maybe she was caught driving without a seatbelt) they can argue that the fetus hasn’t been tried and sentenced and is incarcerated in violation of its rights.

Missouri Fetus Unlawfully Jailed, Suit Says

New York Times, August 11, 1989

A Missouri law restricting abortions has been used by a pregnant inmate to file two lawsuits against the state for what she contends is the illegal imprisonment of her fetus.

The suits, brought last week in Federal District Court on behalf of Lovetta Farrar, 30 years old, and the fetus she carries, contend that if life begins at conception, as the Missouri law states, the United States Constitution should protect the fetus from illegal imprisonment. The suits assert that the fetus has not been charged with a crime, granted a trial, received counsel or been sentenced.

The Supreme Court upheld the Missouri law, which bars abortions in publicly financed medical units. But the court did not rule on the law’s preamble, which states that life begins at conception.

The Kansas City lawyer representing Ms. Farrar, Michael S. Box, argues in one suit that if the Missouri law grants a fetus personhood, the 13th Amendment protects the fetus from being forced to serve a prison sentence for another person. The other suit asks for improved prenatal care for Ms. Farrar.

Fetus Called Endangered

”The fetuses should be treated as persons and should not be put in prison without a trial,” Mr. Box said. ”The fetus should not serve a sentence for the mother.”

One suit contends that the fetus is endangered because Ms. Farrar is not receiving adequate food, exercise or prenatal care. The baby is expected to be born in late November or early December, and Ms. Farrar, who was convicted of forgery, is not scheduled to be released until 1991.

The suit asks the court to vacate Ms. Farrar’s sentence or require the state to provide a special site where pregnant prisoners could receive better care. Mr. Box plans to ask the court to hear the case on behalf of the estimated 25 pregnant women in Missouri prisons.

The case has been assigned to Judge Scott O. Wright, who ruled two years ago that the Missouri law restricting abortion was unconstitutional. That was the ruling overturned by the Supreme Court.

Both opponents of abortion and proponents of the right to abortion would like to see better prenatal care for prisoners. Yet some abortion rights advocates worry about the impact of the case.

”The court might agree with some of the contentions that the fetus is entitled to personhood, which could set a bad precedent,” said Dara Klassel, senior staff attorney with the Planned Parenthood Federation of America in New York. ”I hope that if the court awards anything, it is based on the woman’s rights rather than the fetal rights theory.”

Samuel Lee, the state legislative chairman for Missouri Citizens for Life, an anti-abortion group that helped draft the legislation restricting abortions, said: ”I think it’s a legitimate application of the law. I can’t speak to the validity of the claim that the prisoner is not receiving adequate prenatal care, but I think it’s something the court should look at.”