Stripping Your Constitutional Rights: Miscarriages of Justice.

Rennie Gibbs is accused of murder and faces life in a Mississippi prison; the crime, with which she is charged, however, is no ordinary killing. At the age of 15, Gibbs became pregnant, but she lost the baby 36 weeks into the pregnancy in a stillbirth. On discovering that she had a cocaine habit – despite there being no evidence of drug abuse having anything to do with the death of her baby – prosecutors charged her with the ‘depraved-heart murder’ of her child, which carries a mandatory life sentence. Gibbs may be the first woman to be charged with murder on the occasion of the loss of her unborn child in Mississippi, but her case is by no means isolated. Across the United States, prosecutions against women who lose babies are becoming increasingly rife, essentially transforming pregnant women into potential criminals. Lynn Paltrow of the National Advocates for Pregnant Women (NAPW) has commented:

“Women are being stripped of their constitutional personhood and subjected to truly cruel laws… It’s turning pregnant women into a different class of person and removing them of their rights.”

Interestingly, Gibbs’ story was reported in The Guardian – the American press has done a good job of keeping the story quiet.

Another case is that of Bei Bei Shuai from Indianapolis, who has been imprisoned for the last three months, accused of murdering her baby. She attempted to commit suicide while 33 weeks pregnant, taking a dose of rat poison when her boyfriend abandoned her. Shuai was admitted to hospital and gave birth to her child a week later. Her baby, named Angel, lived only for four days and Shuai was charged with murder and attempted foeticide, and placed in custody.

In the state of Alabama, more than 40 cases have been brought to court under the state’s ‘chemical endangerment’ law, introduced in 2006. This statute was designed to protect children whose parents were producing methamphetamine in their homes and thus putting their children at risk from inhaling the fumes. Amanda Kimbrough, however, is one example of the law being applied in an entirely different manner. During her pregnancy, her foetus was diagnosed with possible Down’s syndrome. Doctors suggested that she terminate the pregnancy, but Kimbrough refused, holding pro-life beliefs. The baby was delivered by caesarean section prematurely and lived for less than twenty minutes. Six months later, Kimbrough found herself being arrested at her home and charged with the ‘chemical endangerment’ of her unborn child, which she denies. In an interview, Kimbrough said: “That shocked me, it really did…  I had lost a child; that was enough.” She is currently awaiting an appeal ruling; if she loses it, she will be submitted to a 10-year prison sentence. She has three other children.

Women’s rights campaigners see this increasing criminalisation of pregnant women as a new front in the war on abortion; conservatives are, essentially, attempting to expand protection laws to include foetuses, from the day of conception. In the case of Gibbs, defence lawyers have argued before Mississippi’s highest court that her prosecution is nonsensical. After all, under Mississippi law it is a crime for any person except the mother to try to cause an abortion. Following from this, the civil rights lawyer, Robert McDuff, asked the state’s Supreme Court:

“If it’s not a crime for a mother to intentionally end her pregnancy, how can it be a crime for her to do it unintentionally, whether by taking drugs or smoking or whatever it is.”

In an interview for The Guardian, McDuff said:

“I hope it’s not a trend that’s going to catch on. To charge a woman with murder because of something she did during pregnancy is really unprecedented and quite extreme.”

Approximately 70 organisations have congregated to file amicus briefs in support of Gibbs, protesting against her treatment on many levels. One states:

“[To treat] as a murderer a girl who has experienced a stillbirth serves only to increase her suffering”.

Another, from a group of psychologists, says that the indictment is founded on a severe misunderstanding of addiction; after all, Gibbs did not take cocaine because she had a ‘depraved heart’ or to deliberately ‘harm the foetus’. The brief states that her reason for taking the drug was “to satisfy an acute psychological and physical need for that particular substance.” One of the most convincing arguments presented in the collection of amicus briefs is that if these kinds of prosecutions were designed to protect the unborn child, they would be utterly counter-productive:

Prosecuting women and girls for continuing [a pregnancy] to term despite a drug addiction encourages them to terminate wanted pregnancies to avoid criminal penalties. The state could not have intended this result when it adopted the homicide statute.”

At least 38 American states have introduced foetal homicide laws that are intended to protect pregnant women and their unborn children from violent attacks from third parties (most commonly abusive partners), which is fair; however, these laws are now being shown as easily manipulated by prosecutors against women.

South Carolina was one of the first states to introduce such a foetal homicide law and the National Advocates for Pregnant Women (NAPW) has only managed to find one singular case of the law being used as initiated, with one South Carolina man being charged under the terms of the law for assaulting a pregnant woman; interestingly his conviction was eventually overturned. Meanwhile, the NAPW estimate that up to 300 women have been arrested for their actions during pregnancy. Not peculiar to North Carolina, laws that were designed to protect children against the damaging effects of drugs have been twisted to punish child bearers. It is an unsettling reality that women who are dealing with the emotional and psychological pain of miscarriage find themselves attacked in such a manner.

This kind of legislature is harmful on many levels; targeting women who use drugs and threatening them with criminal prosecution, especially murder, can only chase them away from the extra treatment that they need while pregnant to ensure that the addiction does not lead to serious birth defects in the child. Think Progress has summed up what the correct policy in dealing with pregnant women should be:

“Targeting women who use drugs while they are pregnant is exactly the wrong policy for protecting the health of their future children. When a woman who is addicted to drug becomes pregnant, she needs immediate treatment to ensure that her addiction does not lead to serious birth defects for her child. But the threat of criminal prosecution — especially for a crime as serious as murder — will only drive her into the shadows. For this reason, dozens of public health organizations including the American Public Health Association have all denounced these prosecutions as harmful to both woman and child.”

In acknowledgement of the fact that that these kinds of prosecutions protect neither the woman nor the child, a myriad of public health organisations (including the American Public Health Association) have criticised them.

These prosecutions represent a much broader threat on women’s reproductive rights. This has already been an important year for America in inhibiting women’s constitutional rights to abortion. They are part of a wider onslaught of restrictive legislations which put the basic health care of women in jeopardy. Four states have defunded Planned Parenthood, for instance. In Georgia, for example – not long after the House voted to cut federal funding to all Planned Parenthood clinics – State Rep. Bobby Franklin presented the legislature with HB1 – the bill that makes ‘pre-natal murder’ unlawful in ‘all events’, including miscarriages that occur without any known diagnosis being made. The bill begins with this summary:

“A bill to be entitled an Act to amend the Official Code of Georgia Annotated so as to provide that prenatal murder shall be unlawful in all events and to remove numerous references to such procedures; to amend Title 16, relating to crimes and offenses, so as to make certain findings of fact; to define certain terms; to provide that any prenatal murder shall be unlawful; to provide a penalty; to repeal certain exceptions to certain offenses; to provide for severability; to provide an effective date; to repeal conflicting laws; and for other purposes.”

This matter of the bill making ‘findings of fact’ is disturbing. As an example, the bill simply states outright that “because a fetus is a person, constitutional protection attaches at the moment of conception.” From here, it goes on to assert a consequential state mandate to protect such ‘innocent life’. The bill is full of not just extreme assertions but self-conscious attempts to justify them by citing history and precedents, as if aware that it would see a court challenge and would prefer to argue the case in the bill itself. No mention is made of the difficult choices women are forced to make when facing their own ill health or the possible deformity of a fetus or the fact that the baby might be born into an economically or socially challenged family.

Bills like the HB1 and the cut funding to Planned Parenthood represent a wider Republican attack on women on both national and state levels. Ohio has prohibited abortions from as early as six weeks, with no leeway in exceptional circumstances like rape and incest. In Texas, women who seek abortions are placed on a waiting list and sonograms are made mandatory. More extreme are the current plans to outlaw contraceptives like birth control pills. The main problem with these legislations is that they are innately contradictory; hypothetically, if Planned Parenthood funding is cut, contraception and gynaecological care will become unaffordable for the majority of patients. Infections and STDs will become more widespread; these, of course, are known to cause miscarriage. Then women are at risk of being thrown into jail for murder. In these states, the concerns are less about the fetus than they are about teaching women about the ‘consequences’ of sex. I suppose they have to teach ‘messed up’ teenagers the errors of their ways as poor Christians. Fundamentally, anti-choice right-wingers view abortion as a way of getting away with sex; and that cannot be tolerated. But where is the punishment for men for such transgression?

A similar movement is in play in Utah among the Mormon community, with the state’s Republican Governor, Gary Herbert, at the helm. 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 allows for murder charges to be brought against women who are found guilty of ‘intentional, knowing or reckless acts’ that lead to miscarriage. In Utah, the lawmakers are responding to the case of a 17-year-old girl who paid a man $150 to physically assault her, hoping the beating would cause a miscarriage. The attempt failed and the baby was born and put up for adoption. While the man involved has been put in prison, Utah prosecutors found no basis in state law to prosecute the young girl. You might think that this case is a one-off, but considering that a pregnant woman in Iowa spent two days in jail for falling down a flight of stairs last month, the lawmakers have seen fit to make possible a means by which to control the actions of all pregnant women.

In light of such, Missy Bird, the director of Planned Parenthood Action Fund in Utah, a group who champions abortion rights, has commented:

“This creates a law that makes any pregnant woman who has a miscarriage potentially criminally liable for murder.”

Critics have noticed the lack of exemptions for women who suffer domestic abuse. What about the punitive case of a woman who remains with an abusive partner and suffers miscarriage after being the victim of violent behaviour? Does remaining in that relationship constitute ‘reckless’ behaviour?

Abortion is still a contentious issue in the States, where – with few restrictions – it has been legal under the terms of the landmark Roe v Wade ruling by the Supreme Court in 1973. The reaction to Utah’s new initiative has verged on disbelief, however, from many angles. Lynn Paltrow, executive director of National Advocates for Pregnant Women, commenting on the issue, has made the following statement:

“For all these years the anti-choice movement has said ‘we want to outlaw abortion, not put women in jail’, but what this law says is ‘no, we really want to put women in jail’.”

The syndicated columnist Dan Savage has voiced a similar reaction:

“Where will this insanity end? If every miscarriage is a potential homicide, how does Utah avoid launching a criminal investigation every time a woman has a miscarriage? And how is Utah supposed to know when a pregnant woman has had a miscarriage? You’re going to have to create some sort of pregnancy registry to keep track of all those foetuses. Perhaps you could start issuing ‘conception certificates’ to women who get pregnant. And then, if there isn’t a baby within nine months of the issuance of a conception certificate, the woman could be hauled in for questioning.”

Given the following statistics from the Guttmacher Institute, it seems like an impossible thing to monitor:

  • Around 4.4 million pregnancies are confirmed every year in the U.S.
  • Up to 1 million of the 4.4 end in natural abortion.
  • More than 500,000 pregnancies end in miscarriage within the first 20 weeks and around 26,000 end in stillbirth after 20 weeks.
  • Approximately 19,000 end in infant death during the first month.
  • Around 39,000 end in infant death during the first year.

In these statistics, none of the spontaneous deaths were a result of abortion, Planned Parenthood or other ‘artificial’ methods. If abortion is murder, as pro-life advocates maintain, then God (or Mother Nature) is killing far more babies than abortion doctors and clinics (which would explain why abortion in not one of the Ten Commandments).

Planned Parenthood Southeast Vice-President Leola Reis said the bill represents ‘big government intrusion’ into people’s personal lives:

“I think there is no reason to have the government intruding on personal and private medical decision making, how we treat women with fertility problems or how women and families choose their birth methods or when and whether to have a family”.

Reis said abortion is protected by the U.S. Constitution and is already heavily regulated by government. She highlights that the language in his bill is so broad it could extend beyond abortion and miscarriage:

“It is so extreme it could potentially prohibit the commonly used forms of birth control, like birth control pills, IUDs, it could even stop women from accessing in vitro fertilization.”

Suzanne Ward, of Georgia Right to Life, said the anti-abortion group is also opposed to this bill because of how broad its powers would be, if passed.

Last week, the bill failed again in its attempts to be passed. Whether or not it will be implemented is hard to say, but given the current state of the Republican Party, it is not impossible. After all, Republicans planning to run for office are asked to take pro-life pledges. I can’t imagine that too many of them would be willing to oppose the statements included in this legislation that I and many others find so objectionable. To do so would be an act of political suicide.

I am not advocating deliberate miscarriages, but I am questioning their alignment to murder. Personally, I do not see much value in a several week old embryo, but many people do. What makes me most uncomfortable about the legislation highlighted here is the fact that they take the focus off the woman by focusing on an unborn fetus. As with abortion, a model of forced miscarriage as crime should focus on protecting women’s rights and preventing violence against women, not to mention a woman’s bodily autonomy. It comes down to the rights of a woman to make her own decisions; her right to be pregnant or not.

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Categories: Beliefs, Morals, Crime, Health, Medicine, People, Politics, Law

Author:Mary-Ellen L

Lives at Lecturer in Literature and Philosophy, Poet and Professional Cynic.

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2 Comments on “Stripping Your Constitutional Rights: Miscarriages of Justice.”

  1. August 3, 2011 at 6:25 pm #

    This is a disgrace in a civilised country. I’m particularly disturbed because to get a conviction for murder one needs to prove intent and in many of these cases that’s just not clear. My own personal hunch on this whole women’s right to choose in America is that it is actually strongly tied in with race and religion. Why can’t people accept that a woman’s body is her body? It is not state propertly, nor are her children.


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