Legislating Misogyny: Miscarriage Could Now Become a Crime (Really)

In the latest assault on reproductive rights, losing a pregnancy could mean serious legal consequences for the mother – even the death penalty.

Imagine that you are several weeks pregnant and growing more excited by the day. You have decided to wait to tell people until you are past that tricky first trimester, the time period of so many losses (some estimate that 1 in 4 pregnancies end in miscarriage). At your first checkup, the doctor scans your belly and frowns. Scans again and frowns. There is no heartbeat. An ultrasound confirms that your baby is not moving and there is no blood flow, just a sad, little unmoving body.

As you cry for your loss and for the child you will never know, a male police officer arrives and asks you, “What did you do to cause this?” As you are trying to come to terms with your own unfounded feelings of guilt, a man is putting it into words and demanding answers, never mind the fact that in most cases doctors cannot determine the precise cause of a miscarriage. Despite that, the burden is on you to prove that your behavior did not in some way cause your pregnancy to terminate, or you could face life in jail or the death penalty.

Sound like something from The Handmaid’s Tale? Margaret Atwood might be prescient. We are well on our way to living in a dystopian society caused by the systematic dismantling of women’s healthcare and rights. 2011 has been an appalling year for women. State after state has mounted a legislative assault on Roe v. Wade and Planned Parenthood, chipping away at a woman’s right to choose, access to affordable birth control, STD screening and early breast cancer detection. But, it hasn’t stopped there.

Legislators have suggested that women carry abortion insurance in the event they might be raped and a Georgia bill proposes prosecution of women who can’t prove they didn’t intentionally cause a miscarriage. Thirty-eight states have fetal homicide laws, designed to protect the fetus from attack from a third party, like a violent male partner, while other states have chemical endangerment laws passed to punish parents who expose their children to meth fumes – yet overwhelmingly, these laws are now being used against the women themselves. South Carolina has prosecuted one man for attacking a pregnant woman, but almost three hundred women for their behavior during pregnancy. Other states have followed suit, twisting the language to focus on punishing women.

Of all the proposed and recently passed legislation, the Georgia bill proposed by Rep. Bobby Franklin potentially punishing women for miscarriages is the most disturbing. The language of the law demands that women prove “no human involvement whatsoever in the causation.” This vague language leaves the door wide open for prosecutorial abuse.

The bill has been shelved for now (and in a further twist, the representative behind it, Bobby Franklin, passed away July 26th during development of this story). Regardless of the tragedy of this individual’s death, the fact that anyone could put that into words, and attempt to pass it, affecting thousands of women in one state with the potential for other state legislators to follow suit – speaks volumes about what men in power think of women. It spells out their belief that they have the right to oppress women and punish them without proof for perceived behaviors and lifestyle choices.

Even though many pregnancies end in miscarriage, doctors routinely tell women that they will not do any additional testing until a woman has had three consecutive losses. Three investigations. Three heartbreaks where a mother can be questioned and be blamed, when she is already feeling grief, hopelessness and despair of ever having the child she wants so much. It is an incredibly private and painful time, and legislators want to not only intrude, but vilify and punish. Should law enforcement really determine if a woman is to be charged, when even doctors can’t say with certainty why a pregnancy ended and will do nothing about it until she has had three losses?

What is the purpose of this law? It and others like it are simply state-sanctioned witch hunts. The chemical endangerment law, passed to prosecute parents who subject their children to harmful fumes in meth labs, has been expanded to include pregnant women who tests positive for drug use or whose infants test positive after birth, and even women who have lost pregnancies when the cause can’t be proven.

Prosecuting women with drug problems would seem like a deterrent to drug use during pregnancy, but realistically, it will more likely just cause women to not seek help, and when they are pregnant is precisely the time they need help the most – before their babies are damaged by their habits. This could cause more babies to be born with health problems or more women to seek abortions for fear of being prosecuted if their baby tests positive.

This could deter women from considering giving up their children for adoption, as well. Many adoption agencies question birth mothers about their medical histories and habits during pregnancy to get an idea of the health of the child. If birth mothers believe that their behavior will be used against them, they will either lie or simply avoid adoption altogether.

This virtually eliminates a woman’s right to medical privacy. No woman will want to tell her doctor or any other medical health professional the truth about her habits, and this can have serious repercussions when medical staff don’t have all the facts when they are treating someone. Will all reports of miscarriages be investigated? With state budgets facing shortfalls and police forces enduring personnel cuts, is this what police should spend their time on?

Will women have to be nervous about every action they take? What if a woman drinks alcohol before she knows that she is pregnant and suffers a miscarriage? What about any woman who goes against a doctor’s advice and loses her pregnancy later, even though those two events might not be linked at all? What does “human involvement” mean? Where does it stop and who will the law be enforced against? Will all hospitals have to report gunshot victims and miscarriages?

I have a friend whose daughter died in utero 10 days before her due date, another who lost two different babies at 18 weeks, another whose twin girls were stillborn at 22 weeks, and several who had one, two or three miscarriages. If pressed, none of them could prove “no human involvement,” since their doctors weren’t even sure why it happened. Should these tragedies have potentially cost my friends their lives?

image: Y, La Bella Vida, Tourist On Earth

Andrea Newell

Andrea Newell is a Michigan-based writer specializing in corporate social responsibility, women’s issues, and the environment.