It's been heartening to see such a strong reaction to Indiana's new law enabling bigotry against gay people over the past few days. A bright light is now shining on the cleverly framed "Religious liberty" movement and it's going to be politically risky in the future for any officials to use the Supreme Court's "Hobby Lobby" invitation to social conservatives to use a religious liberty doctrine to allow businesses to discriminate against gays and lesbians. This is very good news. The Big Money Boyz decided that it was bad for business and the only people to whom conservative leaders listen more closely than the members of the religious right are the leaders of corporate America.
Unfortunately, as you will undoubtedly recall, the Hobby Lobby decision, which for the first time granted religious status to a corporation, wasn't actually about gay rights. It was about denying female employees health insurance coverage for contraception due to the employers religious objection. (The employee's beliefs were not deemed to be relevant.) So far, there hasn't been much outcry against that in Indiana or elsewhere. Indeed, in Indiana the clock has been turned so far back on women's rights that they are now imprisoning women for having abortions. Yes, you read that right.
The case of Bei Bei Shuei, a Chinese immigrant living in Indiana came to international attention in 2011 when she was charged with murder under the states "feticide" law when she attempted suicide while pregnant. The law had been originally intended to be used against third parties who killed a fetus while intending harm against the mother but this shocking case was the first in the state to use the law to prosecute the pregnant woman herself. After years of legal fights Shuei, who served 435 days in jail pending trial, eventually accepted a plea bargain for time served. The prosecutor in the case insisted that they never intended to use the law to monitor the behavior of pregnant women.
That insistence is especially interesting in light of a similar Indiana case that unfolded under the radar as the whole country was up in arms over the new law allowing business owners to discriminate. A woman by the name of Purvi Patel was convicted of feticide and neglect of a dependent for what they called an illegal abortion. Irin Carmen at MSNBC reported on the case:
On Monday, Patel, a 33-year-old woman living with her parents near South Bend, was sentenced to 30 years in prison, of which 10 will be suspended. These prosecutors told msnbc that Patel had, in fact, been convicted of having an illegal abortion, which they said she had induced by pills ordered over the internet.
Ken Cotter, the prosecuting attorney of St. Joseph’s County, said one of Patel’s crimes had been flouting the state’s abortion laws.
“There are certain requirements that the legislature wants to make sure that you go through before an abortion is sanctified by society,” said Cotter. “If you don’t go through those procedures, then the legislature has determined that that’s a crime.”
In Indiana, failing to follow proper abortion procedures can get you 20 years behind bars. Indeed the prosecutor in this case told MSNBC that "[a] more accurate title [for "feticide"] would be ‘unlawful termination of pregnancy.’ He went on to fatuously declare that if the legislature didn't intend for the feticide law to include "the mother or the person who is pregnant" they could have said so. (One wonders what other person he thinks might be pregnant other than the mother.)
Indiana is obviously a very conservative state and it would be easy to chalk these laws up to its particular tendency to use the state to advance a social conservative agenda in the name of "life" and "religious liberty." Sadly, Indiana is not the only state criminalizing pregnancy. Prosecuting pregnant women for the death of their fetus has become distressingly common throughout America. The Journal of Health Politics, Policy and Law published a study called “Arrests of and Forced Interventions on Pregnant Women in the United States". They found hundreds of cases of women being held criminally liable for the deaths or alleged endangerment of their fetuses along with forced medical interventions and incarceration of women for the alleged protection of the fetus. The authors of the study, Lynn Paltrow of the National Advocates for Pregnant Women and Jeanne Flavin, Professor of Sociology, Fordham University pointed out the strange legal terrain on which this is all taking place:
In almost all of the cases we identified, the arrests and other actions would not have happened but for the fact that the woman was pregnant at the time of the alleged violation of law. And, in almost every case we identified, the person who initiated the action had no direct legal authority for doing so. No state legislature has passed a law that holds women legally liable for the outcome of their pregnancies. No state legislature has passed a law making it a crime for a pregnant woman to continue her pregnancy to term in spite of a drug or alcohol problem. No state has passed a law exempting pregnant women from the protections of the state and federal constitution. And, under Roe v. Wade, abortion remains legal.
Yet, since 1973, many states have passed feticide measures and laws restricting access to safe abortion care that, like so-called “personhood” measures, encourage state actors to treat eggs, embryos, and fetuses as if they are legally separate from the pregnant woman. We found that these laws have been used as the basis for a disturbing range of punitive state actions in every region of the country and against women of every race, though disproportionately against women in the South, low-income women and African-American women.
Here are just a few examples cited in the study:
A woman in Utah gave birth to twins. When one was stillborn, she was arrested and charged with criminal homicide based on the claim that her decision to delay cesarean surgery was the cause of the stillbirth.
After a hearing that lasted less than a day, a court issued an order requiring a critically-ill pregnant woman in Washington, D.C. to undergo cesarean surgery over her objections. Neither she nor her baby survived.
A judge in Ohio kept a woman imprisoned to prevent her from having an abortion.
A woman in Oregon who did not comply with a doctor’s recommendation to have additional testing for gestational diabetes was subjected to involuntary civil commitment. During her detention, the additional testing was never performed.
A Louisiana woman was charged with murder and spent approximately a year in jail before her counsel was able to show that what was deemed a murder of a fetus or newborn was actually a miscarriage that resulted from medication given to her by a health care provider.
In Texas, a pregnant woman who sometimes smoked marijuana to ease nausea and boost her appetite gave birth to healthy twins. She was arrested for delivery of a controlled substance to a minor.
A doctor in Wisconsin had concerns about a woman’s plans to have her birth attended by a midwife. As a result, a civil court order of protective custody for the woman’s fetus was obtained. The order authorized the sheriff’s department to take the woman into custody, transport her to a hospital, and subject her to involuntary testing and medical treatment.
Advocates of banning abortion always insist they have no desire to punish women for having abortions. But the incoherence of this legal scheme indicates quite clearly what would happen if Roe vs Wade were to be overturned and the many state abortion bans around the nation were to take effect. If women are routinely being prosecuted for harming (or potentially harming) their own fetus in a nation in which abortion is a constitutional right, imagine what would happen if that thin protection were removed.
In the meantime, these Indiana style laws against feticide or "illegal abortion" are likely to be employed more and more in places which have made legal abortion very difficult to obtain.As Carmen reported in her MSNBC piece a Pennsylvania single-mother was sentenced to jail for ordering the pills online for her pregnant daughter because there was no clinic nearby. And the Patel case involved the alleged use of misoprostol, one of the two drugs used in early medication abortion which apparently is being used commonly by desperate women in places where they can obtain that one portion of the prescribed treatment. This is dangerous and backwards and has no place in a civilized society.
Women are being hit from all sides by the social conservatives. They are closing as many clinics that offer reproductive health services as they possibly can, they're opposing affordable birth control on the basis of "religious liberty", they're using the legal system to enforce their own behavioral standards on pregnant women and they are throwing women in jail for "feticide" in a country in which abortion is still ostensibly legal. Since millions of women will have an abortion during their lifetimes regardless of these risks, this is leading to more dangerous self-induced methods without medical supervision. Many will suffer terribly. If one didn't know better one might think this whole thing stems not from a beautiful love of life in all its glory but rather from a deep and abiding hostility toward women themselves, especially when they're pregnant. Why else would anyone want to treat them so cruelly?
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