Making miscarriage murder

A new Utah bill could criminalize a pregnant woman's "reckless" behavior

By Mary Elizabeth Williams

Senior Writer

Published February 25, 2010 3:26PM (EST)

This week in "chipping away at your constitutional rights," we go to Utah, where there's a new bill before Governor Gary Herbert that could criminalize miscarriage.

The unambiguously named "Criminal homicide and abortion amendment" that passed in the state senate last week seeks to "describe the difference between abortion and criminal homicide of an unborn child and to remove prohibitions against prosecution of a woman for killing an unborn child or committing criminal homicide of an unborn child."

How, you may wonder, is the state of Utah going to separate a woman's legal right to a safe abortion and potentially prosecuting her for murder?

Glad you asked! Utah still grants that there's "no cause of action for criminal homicide for the death of an unborn child caused by an abortion" (yes, in Utah, abortion = "death of an unborn child") but would now define criminal homicide to include behavior that "intentionally, knowingly, recklessly, with criminal negligence, or acting with a mental state otherwise specified in the statute defining the offense, causes the death of another human being, including an unborn child at any stage of its development."

Key words there are "recklessly," "unborn child" and "at any stage." In other words, if you're not being a fully responsible baby incubator – even if you're so early along you don't know you're pregnant -- and you lose the fetus, you could potentially find yourself up on a murder charge.

The bill is sponsored by Utah Family Action Council Chairman and Republican representative Carl Wimmer, who describes the organization as "continually working to pass pro-life legislation which will weaken Roe v. Wade." His previous hits include the state's Unborn Child Pain Protection Act to require doctors to inform pregnant women that their fetus may experience pain during abortions. (Real life:  More like an Onion headline  every day.)

The origins of the bill are a particularly sad and gruesome case. When a pregnant 17 year old paid an acquaintance $150 to beat her to induce a miscarriage, the girl, whose baby survived, was initially charged with criminal solicitation to commit murder and sent to a juvenile detection facility. That decision however had to be reversed -- and the girl released -- when her attorneys argued that Utah law can't prosecute women seeking abortions.

Now, we can't have young women thinking it's OK to get knocked up and become so desperate they'd pay someone to kick them repeatedly in the stomach. And I guess giving them safe, inexpensive reproductive options so that it never comes to that would just be crazy. Better to make laws to incarcerate them. And just to cover our asses, we'll broadly define anything potentially dangerous to a fetus as "reckless."

You might think, OK, the beating case, horrible as it is, at least seems a rare event. If God forbid the bill actually passes, it's not like they're going to lock up everybody who has a miscarriage, every woman who's beaten or gets in an accident, right? Considering that last month a pregnant woman in Iowa spent two days in jail for falling down a flight of stairs, I'd say, don't rule it out. The bill goes far beyond the issues of Roe v. Wade -- it's about keeping tabs on all pregnant women, full stop.

Speaking to RH Reality Check this week, National Advocates for Pregnant Women's  Lynn M. Paltrow, summed it up: "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.'"

By Mary Elizabeth Williams

Mary Elizabeth Williams is a senior writer for Salon and author of "A Series of Catastrophes & Miracles."

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