Proposed Utah Law - Women who Suffer Miscarriage May Face Possible Criminal Prosecution

The Independent/Notoriously Conservative ^ | 03 01 10 | Notoriously Conservative

[Notoriously Conservative]

A proposed Utah law that would open women who suffer a miscarriage to possible criminal prosecution and life imprisonment has enraged feminists and civil rights activists across the United States.

Adopted overwhelmingly by both sides of the state legislature in Salt Lake City earlier this month, the draft bill is now awaiting the signature of the state's Republican Governor, Gary Herbert. It is not clear if the growing national controversy surrounding the proposed law will slow or even stay his pen.

While the main thrust of the law is to enable prosecutors in the majority-Mormon state to pursue women who seek illegal, unsupervised forms of abortion, it includes a provision that could trigger murder charges against women found guilty of an "intentional, knowing or reckless act" that leads to a miscarriage. Some say this could include drinking one glass of wine too many, walking on an icy pavement or skiing.

Lawmakers were responding to the case of a 17-year-old pregnant Utah woman who paid a man $150 to assault her physically in the hope that the beating would cause her to miscarry. The child was born anyway and put up for adoption. And while the man involved is currently behind bars, prosecutors found they had no basis in state law to prosecute the young woman. She was in her seventh month when she tried to terminate her pregnancy.

Last-minute efforts to remove reference in the bill to "reckless" acts failed, feeding the uproar about a law that some people say would be impossible to implement and threatens basic freedoms of women. Statistics suggest that 15 to 20 per cent of recognised pregnancies end in miscarriage. "This creates a law that makes any pregnant woman who has a miscarriage potentially criminally liable for murder," said Missy Bird, director of Planned Parenthood Action Fund of Utah, part of the national organisation that champions abortion rights.

Critics also note that the bill has no exemptions for women who suffer domestic abuse or who have addiction problems. They wonder, for example, about the putative case of a woman remaining with an abusive partner and suffering a miscarriage after an episode of violence. Would remaining in that relationship constitute "reckless" behaviour, they ask?

[bamahead]

Regardless of the slant of the article, there is definitely some potential here for abuse. Does this mean police will be investigating every miscarriage in UT?



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[Tublecane]

“Not a good law, but for other reasons. During pregnancy, and for a while thereafter, a small percentage of women can go temporarily insane due to extreme hormonal fluctuations...This is not a good reason to criminally punish someone.”

I’m sure you’re aware that insanity is a defense for any crime, and that we have these things called trials to sort things out.

[trisham]

Lawmakers were responding to the case of a 17-year-old pregnant Utah woman who paid a man $150 to assault her physically in the hope that the beating would cause her to miscarry. The child was born anyway and put up for adoption. And while the man involved is currently behind bars, prosecutors found they had no basis in state law to prosecute the young woman. She was in her seventh month when she tried to terminate her pregnancy.

***********************

Good intentions don't always result in good legislation, unfortunately.

[Tublecane]

“To make matters worse, the number one form of mental illness is severe depression and despondency”

Depression does not insanity make. The law is not, nor ought to be, so wishy-washy on the issue as people seem to think.

[acipher]

If you read the bill almost everyone is going to agree with it. More or less, a person acting stupidly or ignorantly and causes a miscarriages will not be charged, but a person acting criminally or recklessly will be charged.

The only thing that is at issue here is the reckless. But I say if you are acting with reckless disregard for a fetus, you probably should face trial. It’s a life dammit.

[microgood]

Some say this could include drinking one glass of wine too many, walking on an icy pavement or skiing.

If this is true, the law is bad. Prosecutors will always press new laws to their most absurd limits. It is in their blood. They cannot help themselves.

[Tublecane]

“That’s an extremely slippery slope. Drinking more than a couple of cups of coffee a day has been found to significantly increase the miscarriage rate...”

Is it, though, really? I can see problems with the law, but I don’t figure this is one of them. After all, we don’t have millions of women in jail for parental neglect because they let their kids get fat, do we? The state doesn’t liek pursuing those sort of cases, and for good reason. The burden of proof isn’t on the mother. We wouldn’t assume she’s guilt of murdering her baby unless she demonstrated that she did everything possible, up to and including quitting cold-turkey everything that could possibly be construed as harmful to the baby, to come to term. The burden is still on the prosecution’s side, as it is in neglect cases, that the mother did something really, really bad.

[Tublecane]

“Prosecutors will always press new laws to their most absurd limits. It is in their blood. They cannot help themselves.”

Yes, if they think it can help their careers. Which is the case, for the most part, with a lot of the people they go after. Even if they’re innocent, the public loves to see guilty-esque people suffer. No one likes gang-bangers, greedy businessmen, or (in the instance of the Duke lacrosse players) frat boys. But poor mothers, who just lost a baby? That’ll never be an attractive target. Unless you can make them out to be monsters, like Andrea Yates or Susan Smith. But if you could do that, then you’d have convincing evidence, it wouldn’t be controversial, and we wouldn’t be having this conversation.

By the way, even if prosecutors go hog-wild (and I don’t see why they would; people who think it’s in their blood to stretch every crime to its limit are prejudiced by seeing them stretch certain crimes to their limits, crimes which usually just happen to be popular to pursue), we still have trials. Seems a lot of people on this thread have forgotten about the existence of trials.

[Mrs. Don-o]

First, acipher, thanks for quoting from the actual text of the bill. It helps put us on a factual basis, and not a fanciful one!

Second, bamahead: it's hardly possible to investigate every miscarriage, any more than it is possible to investigate every stillbirth, every child injury, every death. The impossibility of "investigating everything" does not constitute an argument against the legislation, since crime investigators have never been expected to investigate every injury and death.

It is a reasonable inference, from the text of the bill, that, like other instances of death or injury, there would be an investigation only if there were demonstrably suspicious circumstances.

For instance, a pregnant female requesting that her boyfriend batter her about the abdomen with a baseball bat. Which is the incident which inspired the legislation.

[Tired of Taxes]

Thanks for finding a link. I skimmed through the text of the bill. I don’t see how this bill is pro-life. From what I can tell, all it does is tell women they have to go to a physician instead of do-it-yourself.

[bamahead]

I don’t disagree at all. But as with any law, if the means of determining real intent are not very succintly spelled out in the letter of the law, it can (and probably will be) abused. All it takes for such is a zealous D.A. prosecutor with a bone to pick (or possibly an election to win).

[bamahead]

succintly = succinctly

My spelling is always the worst on Mondays!

[acipher]

It expands the definition of criminal homicide to include an unborn child at any stage of its development. How can that not be Pro-Life?!!!!!

“(1) (a) [A] Except as provided in Subsections (3) and (4), a person commits criminal homicide if [he] the person 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.”

It provides clear exemptions that should just be common sense:

(3) A person is not guilty of criminal homicide of an unborn child if the sole reason
for the death of the unborn child is that the person:
(a) refused to consent to:
(i) medical treatment; or
(ii) a cesarean section; or
(b) failed to follow medical advice.

The tragedy is that they have to have the following language, but that is out of their control(for now).
(b) There shall be no cause of action for criminal homicide for the death of an unborn child caused by an abortion, as defined in Section 76-7-301 .

[Tired of Taxes]

But, how would reckless be defined? In skimming through the text, I didn’t see it defined specifically. (Maybe I’m missing it.)

[yefragetuwrabrumuy]

First of all, in the 1960s-1970s, the insanity defense was overused by attorneys of those attempting to escape punishment. So the rules on the use of an insanity defense were considerably tightened up.

To make matters worse, this was when the ACLU succeeded in forcing many States to release mentally ill patients from insane asylums, which suddenly the States were all in favor of as well, as it saved them a lot of money.

By the late 1970s into the 1980s, there was a blow back, in which more frivolous attempts to evade justice with an insanity defense were used, such as in infamous “Twinkie defense” (which worked, BTW).

But since States would no longer commit most of the insane, what resulted was the “guilty but insane” prosecution, in which those who were clearly insane were put in prison, unless they were so insane that they would be put in cold storage, drugged to unconsciousness and kept in that state perpetually until death.

However, in the issue at hand, there exists a clear and clinical reason for temporary insanity. Anyone could be driven temporarily nuts with vacillations of their hormones like that. And it is clearly a temporary state, in that they will almost certainly go back to normal on their own.

But if they are treated *initially* as attempting or succeeding with a *criminal* act, the forensic evidence of a blood test taken during the window of opportunity may be lost. This is my argument, that it should *first* be treated clinically, and quickly, so that if it is hormone caused temporary insanity, the test alone will prove it beyond any doubt.

Again, from my own experience, the woman who went temporarily insane did have a blood test. Her hormone levels were so far out of whack that they assumed the test was in error. It wasn’t as was shown by a second test. She ended up with a lot of prescription drugs and was under observation for days, even though she quickly returned to normal with the drugs.

As far as severe depression and despondency, it is a lot worse than typical chronic depression, again because it is chemically induced. Someone in that state is clearly a risk to themselves or others, and must be confined until they can be medicated.

In short, they are very dangerous, and should not be around any sharp object, and you shouldn’t turn your back on them. They may even come across as sane for a while, but they are anything but. Again, this is stuff that can be determined by a blood test, it is so severe.

But unless that blood test is made at the right time, no one will know for sure. Otherwise, they could be just a criminal, or permanently insane.

[bamahead]

It is a reasonable inference, from the text of the bill, that, like other instances of death or injury, there would be an investigation only if there were demonstrably suspicious circumstances.

That's where the biggest concern would rest. Intent is probably the hardest thing to prove and defend in a courtroom. I do need to read the bill (thanks acipher for the link).

But, as I said in an earlier post, the means for determining intent need to be very, very clear in the law. What constitutes those 'suspicious circumstances'? If it's a deliberate act of sanctioned violence against the mother (or even self mutiliation), that's definitely one thing that could clearly spell intent here. But, (hypothetically) let's say an expecting mother takes a bunch of cold medicine and then later has a miscarriage? The doctor determines the cold medicine likely played a role. How do you evaluate the mother's intent? Did she really have a cold that warranted all that medicine? That's what I'm saying is difficult with a law like this, unless it's very well written.

Spirit of the law vs. letter of the law always mean different things to different prosecutors.

[Tired of Taxes]

It expands the definition of criminal homicide to include an unborn child at any stage of its development.

Not really. The bill states: "There shall be no cause of action for criminal homicide for the death of an unborn child caused by an abortion..." Section 76-5-201 (b)

Then it defines abortion as: "the intentional termination or attempted termination of human pregnancy after implantation of a fertilized ovum... through a medical procedure carried out by a physician or through a substance used under the direction of a physician" 76-7-301 Definitions Line 224

[bamahead]

(3) A person is not guilty of criminal homicide of an unborn child if the sole reason for the death of the unborn child is that the person:
(a) refused to consent to:
(i) medical treatment; or
(ii) a cesarean section; or
(b) failed to follow medical advice.

Section (b) would definitely cover my concern in post # 36.

[acipher]

If you noticed, I quoted that section in the very post you quoted me from :)

Or would you prefer that because it’s legal to abort medically, criminal homicide should not be expanded to include an unborn child?

Of course I kind of like the way the word it. They don’t say abortion is not criminal homicide, only that it’s not actionable.

[Tired of Taxes]

Indeed, you did include that first line. :-) As you can see, it would still be perfectly legal for a physician to do it.

And how is “reckless” defined? As far as I can tell, with this law, a physician could perform an abortion without penalty, yet that same physician could report another pregnant woman for “reckless” endangerment of her unborn baby.

It sets it up for a physician to tell a woman: “You’ve been behaving recklessly and probably have caused harm to your baby. I could perform an abortion; otherwise, I regret that I’ll have to report you for reckless endangerment.”

Farfetched? I don’t think so. Thin line, slippery slope.