A few weeks ago, I blogged on a story from Iowa that shocked me: police investigated and detained a woman for 2 days because she fell down the stairs while pregnant, and they suspected that she did so intentionally in order to induce a miscarriage.
Well, now the state of Utah is considering legislation that would criminalize actions such as this woman’s accidental fall. The legislation would criminalize “any intentional, knowing or reckless acts by a woman against her unborn child” and as a result, “a woman guilty of criminal homicide of her fetus could be punished by up to life in prison”. Proponents of the legislation think that the standard of “intentional, knowing or reckless acts” is clear enough that miscarriages would be exempt from investigation, but as Nancy Northrup of the Center for Reproductive Rights notes, “Prosecutors have a lot of discretion, and miscarriage is a sad but common event in connection with pregnancy… This bill would cast suspicion, potentially, on every single miscarriage.”
It is chilling to observe this persistent pattern of increased suspicion towards pregnant women and the assumption that they are neither entitled not competent to make their own reproductive health care choices. Supreme Court Justice Ruth Bader Ginsberg spoke to such cultural attitudes in an interview the New York Times Magazine last summer. Here is the exchange:
The ACLU has filed a friend of the court brief in Burton v. Florida, where Samantha Burton, a pregnant woman in Florida was given medical orders, including forced bed rest, through the courts. Dahlia Ward of the ACLU describes the dangerous precedent posed in this case best when she says:Q: Since we are talking about abortion, I want to ask you about Gonzales v. Carhart, the case in which the court upheld a law banning so-called partial-birth abortion. Justice Kennedy in his opinion for the majority characterized women as regretting the choice to have an abortion, and then talked about how they need to be shielded from knowing the specifics of what they’d done. You wrote, “This way of thinking reflects ancient notions about women’s place in the family and under the Constitution.” I wondered if this was an example of the court not quite making the turn to seeing women as fully autonomous.
JUSTICE GINSBURG: The poor little woman, to regret the choice that she made. Unfortunately there is something of that in Roe. It’s not about the women alone. It’s the women in consultation with her doctor. So the view you get is the tall doctor and the little woman who needs him.
“Don’t get me wrong — of course I want pregnant women to follow their doctor’s advice. But I do not think that pregnant women should be confined against their will if they are unwilling or unable to do so. If we allow the government to confine a pregnant woman for not following orders to remain in bed, what’s next? Will we forcibly hospitalize pregnant women for having a glass of wine with dinner? Or eating too much fast food? What if they don’t take their prenatal vitamins? Or miss their doctor’s appointments? What if a pregnant woman refuses a Cesarean section? While we each may have strong opinions about such behaviors, our government cannot interfere in a woman’s personal private medical decisions. Allowing the government to make medical decisions for pregnant women means that literally every decision and every activity a pregnant woman engages in could be regulated by the state. And certainly the possibility of state-mandated hospitalization for those who have engaged in “unhealthy behaviors” would deter some women from seeking any prenatal care for fear of being punished. In that situation, everybody loses.”
Unfortunately, the slippery slope arguments Dahlia refers to actually come to fruition in this proposed Utah bill. It is not the government’s prerogative to investigate the circumstances of women’s pregnancies with the threat of criminal charges. The ACLU will continue to fight for the autonomy of women to make their own choices about their body, including their pregnancies and reproductive health care.
