This article is co-authored by Lynn Paltrow and Farah Diaz-Tello.
While our country stands at a deadlock over legislation to ensure that millions of uninsured people have health care coverage, we can at least feel confident that some state legislators are hard at work, making it more difficult for women to access health care and much easier for states to put them, and the people who help them, in jail.
In Mississippi, legislators proposed a law, HB 695, which would make many forms of midwifery a crime. That is clearly bad for pregnant women and for babies for at least one very simple reason. As the White Ribbon Alliance for Safe Motherhood pointed out after Hurricane Katrina, when hospitals shut down as a result of a disaster, midwives are among the few who know how to deliver babies without electronic fetal monitors, surgical theatres or epidurals. For this reason, the Alliance highlighted the need to protect (not criminalize) midwives who have the skills needed under such circumstances.
When disasters hit, however, it is not only the women who are going to term who are in trouble. As the National Network of Abortion Funds found out after Hurricane Katrina forced abortion providers to close their doors, many women were also left without access to urgently needed abortion services.
If Utah lawmakers have their way, a woman under similar circumstances who attempts to take matters into her own hands could be charged with murder under House Bill 12, the state’s effort to outlaw “self-abortions.”
Right-to-life organizations have long maintained that if abortion were outlawed, only doctors who performed the abortions would go to jail. But Utah’s proposed law ensures that women themselves, and not just those who help them, will be incarcerated for a minimum of 15 years. (Since 61 percent of women who have abortions are already mothers, a woman convicted under this law would, with any luck, be out of jail in time to see her son or daughter graduate from high school.)
Even without such a law, police officers in Iowa recently arrested a woman in her second trimester of pregnancy for the crime of attempted feticide after she tripped and fell down a flight of stairs. The county attorney’s office dropped the case only after they decided that their unprecedented interpretation of the feticide law should only be applied to pregnant women in their third trimester. But in Utah, the law would expressly apply to pregnant women at all stages of pregnancy. So, if you are pregnant and clumsy in Utah, you could be charged with attempted murder, even in the first trimester.
As a sign-on petition opposing the Utah bill points out, pretty much any woman who suffers a miscarriage or stillbirth and is engaged in an activity that she “should have reason to know” would endanger her fetus can now be charged with murder or attempted murder.
Suffer a pregnancy loss after a car accident you may have caused? Murder. Follow your doctor’s advice to treat your cancer despite the risks it might pose to your unborn child? Attempted murder.
Bizarrely, the Utah law has an exemption that protects women who “fail to follow medical advice,” but nothing in the law protects women who do follow medical advice. Thus women who disagree with a doctor’s advice to have cesarean surgery can’t be prosecuted, but a woman who takes prescription medications that may risk harm to an unborn child could end up behind bars.
Meanwhile, in Kentucky, House Bill 136 would create a new crime just for pregnant women. According to this law, “[a] woman is guilty of substance endangerment of a child prior to birth when, knowing she is pregnant, she causes her child to be born” with controlled substances or alcohol in the child’s bodily fluids. What that means is that, if this law is passed, it would literally be a crime for a pregnant woman to give birth if the child she gives birth to has any amount of a controlled substance or alcohol in its body.
It is well known that laws which threaten to punish women who carry their pregnancies to term in spite of a drug or alcohol problem place substantial pressure on women to have unwanted abortions. This is because it is hard for people to overcome an addiction quickly (just ask Rush Limbaugh). For pregnant women who face many barriers to treatment, there is no guarantee that they will be cured quickly enough to be sure they won’t be arrested if they go to term. Such laws are also known to deter women from care, increasing the risks to maternal, fetal and child health. It would be nice to think that Kentucky legislators did not mean to make it a crime for some woman to cause their children “to be born,” but the fact that this law has been proposed over the objections of every leading health group makes us wonder.
And finally, we wonder about Nebraska’s commitment to protecting fetuses from pain. Nebraska House Bill 1103 would protect some fetuses from pain by banning virtually all women from obtaining abortions after the 20th week of pregnancy. Although abortions after 20 weeks of pregnancy are extremely rare (constituting only 1.5 percent of all abortions), and the doctors who perform them are heroes to the women who need such procedures, this law would make those doctors criminals.
The Nebraska legislators who support this bill claim that after 20 weeks of pregnancy an unborn child is capable of experiencing substantial pain. Certainly, if this is true, then fetuses must also suffer pain from forceps deliveries, internal electronic fetal monitoring (requiring the insertion of sharp metal wires into the delicate fetal scalp) and from chemically induced labor in which the fetus is subjected to repeated, violent maternal uterine contractions and then forced through the narrow vaginal canal. If Nebraska legislators were truly committed to preventing fetal pain, then they should also ban pitocin-induced vaginal births and other fetal-pain inducing delivery techniques and arrest the doctors who carry them out.
The lawmakers supporting these bills claim that they are trying to bar bad things from happening to pregnant women and the unborn. But whatever their stated good intentions, make no mistake, these bills are really about putting pregnant women and the people who support them behind bars.