Originally implemented to protect pregnant women, feticide laws become tricky when they are used as a way to criminalize these same women.
By definition, fetal homicide is the act of killing an intrauterine fetus accidentally or purposefully, outside of the context of a legal abortion in accordance with state laws. Under feticide regulations, anyone who is thought to cause a fetus’ unnatural death within the womb, even if inadvertently, can be charged with murder.
Since the Roe v. Wade decision in 1973, various resolutions have been made in court that seemingly advocate for the safety of women and the fetuses they carry. President Bush signed the Unborn Victims of Violence Act in 2004 seeking to defend unborn children and their mothers from assault, and 38 states have passed fetal homicide legislation meant to punish those perpetuating violence against them.
In Indiana, legislation lengthening the sentencing of individuals responsible for a child’s death at any stage of pregnancy has been around since 1979. Subsequently there have been a few cases which have caught the public’s attention, and caused people to demand more severe consequences for those subjecting pregnant women to domestic abuse, gun violence or toxic substances.
Because fetal homicide laws classify the fetus as a separate entity from the mother, and a “person” with legal protection under the U.S. Constitution, anyone who harms the unborn child would face repercussions equivalent to normal criminal charges. This means mothers who are found to be the cause of their fetus’ death can be prosecuted for infringing on their child’s autonomous right to life.
Thus, under the technical pretenses of “personhood,” several hundred mothers have been charged and incarcerated for actions that endangered or ended their unborn child’s life in the past 30 years. The case of Bei Bei Shuai, a Chinese immigrant living in Indiana, alerted the public on a national scale to the fact that women could be punished by the same law intended to safeguard them and their baby.
— Soraya "You Sound Angry" Chemaly (@schemaly) November 20, 2016
Shuai was charged with murder in 2011 after a failed suicide attempt was linked to the death of her child following an emergency C-section. Despite her severe depression and grief over the loss of her newborn baby, Shuai was sent to prison and made to endure a grueling legal battle to fight for her liberation.
While it was the instance that made the most headlines, Shuai’s case wasn’t completely unique. Other pregnant women have been charged after getting into car crashes, struggling with drug addictions, miscarrying due to abortion inducing pills and making mistakes that could cost them their innocence and freedom.
Part of the issue is that mental illnesses in pregnant women are seen as criminal offenses rather than health conditions to be treated. Medical studies prove that over 20% of women suffer from mood or anxiety disorders during pregnancy, a problem that disproportionately affects women of color. If society was to rehabilitate these women instead of enforcing punitive measures, there might be more long-term benefits and healthy births in the future.
Another complication is the fact that feticide laws separate the rights of the unborn from those of their mothers, which allows the possibility of women serving prison time for actions against their own children that may not have been intentional.
Anti-abortion organizations have supported the personhood movement since its conception in 2008, as they vehemently believe in the protection of unborn life. However the fetal rights they promote often come at the expense of a woman’s right to choose, which is constitutionally granted under Roe v. Wade.
Fetal rights can mean that women who self abort could be charged with murder, or prenatal negligence. Fetal rights can start a slippery slope to more pregnancy and body policing.
Rather than treating mothers and fetuses as independent entities, one solution to preserve women’s rights are penalty-enhancement laws. In eight states without feticide laws, there is no separate charge for the loss of a fetus; instead any harm to a fetus is considered to be harm to the woman as well. Colorado in particular offers a maximum punishment of 32 years in prison for “unlawful termination of pregnancy”
There are ways to protect unborn children and women while preserving a woman’s right to choose. The topic of feticide laws in the U.S. doesn’t have to be a partisan or religious debate, because it is about simultaneously ensuring the rights of woman and unborn child. Proper feticide laws would allow women to abort if they want, and properly punish those who cause women emotional and physical distress by taking their children against their will.
If left alone, the current laws criminalizing women will only continue to further undermine the progress made towards reproductive rights.
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