Miscarriage = Criminal Homicide?

Sitting on the Utah Governor Gary Herbert’s desk awaiting his signature is HB12, a piece of legislation that criminalizes miscarriage. Under this statute, a woman who induces a miscarriage or obtains an illegal abortion can be prosecuted for criminal homicide, although legal abortion is still protected. Even a woman who engages in “reckless behavior” that leads to her miscarriage is legally responsible as long as the prosecutor can show this behavior contributed to the miscarriage. This includes women who had accidental miscarriages and never wanted to lose their fetus. The incidents that lie under “reckless behavior” are not defined, creating a broad scope of punishable offenses that could possibly include substance abuse, being a victim of domestic violence, not wearing a seatbelt and falling down the stairs .

This law is a major blow to women’s reproductive rights, establishing a punitive system for pregnant women. Utah is the first state to have a feticide law that attacks the woman and not the third party by making her legally responsible. If this bill is passed, a big question is going to be whether or not they are going to enforce it. Every miscarriage could potentially be caused by reckless behavior. Does this mean Utah law enforcement is going to investigate every miscarriage in the state? I doubt it. 25% of pregnancies end in miscarriage, and the time and money it would take to try and investigate all known miscarriages is exuberant. Yet this law may carry more weight than just a message. The law was originally proposed because of a case where a 17-year-old girl paid a man $150 to beat her in a failed attempt to cause a miscarriage. The girl was initially charged with attempted murder, but the charges were dropped because, at the time, under Utah state law a woman could not be prosecuted for attempting to arrange an abortion, lawful or unlawful. With the new law, however, this girl and others like her can be prosecuted in situations like this and many others.

The bill has even deeper implications about personhood when you look at some of the other details of the law. This statute applies throughout a women’s pregnancy even in the first trimester when abortion is legal. This is a drastic difference to fetal homicide laws in other states that usually only apply to the third trimester. By including the first trimester, personhood is applied to the fetus throughout the pregnancy. Although abortion is still legal in Utah and the United States, personhood laws like these threaten Roe vs. Wade and women’s reproductive rights. The consequences of this new personhood classification remain to be seen.

The Planned Parenthood Action Center in Utah worked actively in trying to amend the bill and had small successes. Originally the bill also included negligence (a lower standard than recklessness) that lead to a miscarriage as a criminal offense as well, but in part because of their advocacy, this section was dropped.

Hopefully people will continue to fight this law and appeal cases in which it is implemented until it one day gets turned over. In the mean time, I can only hope that laws like this do not continue to spread, breaking down the accomplishments of the pro-choice movement one law at a time.