REPRODUCTIVE RIGHTS MAY 27, 2013
This March, John Andrew Welden allegedly tricked his girlfriend into taking an abortifacient pill after she refused to end her pregnancy. He is now awaiting trial for the murder of the six-week-old embryo that would have been his child. In Cleveland, Ariel Castro could face the death penalty, not because he allegedly held three women captive for a decade, chained them up, and raped them; but because, when they became pregnant, he is said to have beat or starved them until they miscarried.
Punching someone in the stomach is bad; punching a pregnant woman in the stomach so that she miscarries is clearly worse, and it demands a harsher punishment. But what is the crime, exactly, and who is its victim? Anti-abortion groups say the victim is the fetus, and the crime is murder. Their opponents argue that the victim is the woman, and that the criminal code should put her vulnerable status, and her loss, at the center of the case. In this debate, as in so many others over reproductive rights, the people trumpeting fetal “personhood” are ascendant. Laws that prosecute on women’s behalf—usually by dubbing pregnancy an “aggravating factor” that heightens penalties—are few and dwindling, while statutes criminalizing "feticide" are on the rise.
The problem is, the feticide approach “doesn’t get at the harm to the pregnant woman,” says Deborah Tuerkheimer, who teaches criminal and feminist law at DePaul University. “It renders her invisible. It’s all about the baby inside of her, and she is the vessel for that creature.” Women seeking reparations can file a civil case pleading emotional injuries, as Welden’s former girlfriend, Remee Jo Lee, did in Florida. As far as criminal law is concerned, though, Lee and women like her are not the principle victims.
Feminist legal experts say there is virtually no one lobbying in Washington to write more women-friendly legislation that deals with crimes like the ones Welden and Castro are accused of. The American Civil Liberties Union used to push back against local lawmakers who brought them to the floor, according to CUNY law professor Caitlin Borgmann, who worked there into the early 2000s, but a spokeswoman said the organization no longer works on the issue. (She did not respond to requests for comment on why it stopped.) The Center for Reproductive Rights, NARAL Pro-Choice America, and other pro-choice groups with large lobbying arms don’t focus on fetal homicide laws.
A NARAL spokesperson said the organization prioritizes issues that have the greatest impact on women, suggesting that with pro-life strategies proliferating, fetal homicide law isn’t one of them. “People who harm pregnant women are committing the grossest kind of physical assault,” policy director Donna Crane said in an email. “You don't need laws that entangle prosecutions in the question of when life begins in order to throw the book at people who commit these crimes. There is a time and a place for that discussion—but it’s not now.”
But Lynn Paltrow, a lawyer who founded the nonprofit National Advocates for Pregnant Women (NAPW) in 2001, sees a void that needs to be filled. “The mainstream pro-choice movement has not used its resources for the concerns of women who are going to term,” she said, adding that while local activists, predominantly in communities of color, have advanced a conception of "reproductive justice" that doesn't center on the right to end a pregnancy, their ideas haven't made it to K Street. “I very much see NAPW as a legal advocacy arm,” she said, but as a 501(c)(3) with a staff of only four, she and her colleagues are “limited in the lobbying we can do.”
Meanwhile, fetal homicide bills are popping up like weeds. In addition to the federal “Unborn Victims of Violence Act (UVVA),” at least thirty-eight states currently have some form of feticide measure on the books, according to the National Conference of State Legislatures. Some states have made fetal homicide its own crime; others have rewritten the definitions of murder and manslaughter to include the unborn, or passed broader “fetal personhood” bills that accomplish the same thing. In at least twenty-three states, these laws apply from the moment sperm meets egg.
In most states, and in the UVVA, the language of the law specifies that it doesn’t apply to women who end their own pregnancies, but Paltrow says those caveats are frequently ignored. This January, her organization released a study that documents over 600 cases in which pregnant woman were arrested or detained for attempting or committing feticide. They include a number who attempted suicide; one who accidentally fell down the stairs; and one who was arrested when one of her twins was stillborn, with the state claiming she killed her child by delaying caesarian surgery.
A combination of feticide laws and abstracted “child endangerment” legislation has been turned on women who make medical decisions that privilege their own safety over their fetus,’ including one woman in the District of Columbia whom the courts forced into having a C-section even though her doctor predicted—correctly—that it would kill her. (The baby also died.) Paltrow says feticide laws’ are used to frequently target women who use drugs and alcohol, or, in general, low-income women whose life styles could, rightly or wrongly, be construed as harmful to their unborn children. In a recent article in the American Journal of Public Health, she labels this racial and socioeconomic disparity “the new Jane Crow.”
Some of the worst abuses have occurred in South Carolina, where in 1997 the state Supreme Court declared that any woman who did drugs while pregnant was eligible for up to ten years in prison, and Texas, where an ambitious DA tried in 2003 and 2004 to extend a new child abuse law to the unborn, and force doctors to report any signs that patients were using drugs. The reading of the Texas law and many other decisions made at the local level have eventually been overturned by higher courts, but not before untallied numbers of women were jailed.
Still, these laws enjoy huge popular support. Feticide measures are often passed right after the violent death of a pregnant woman, and in that context, it’s easy to understand why they satisfy some public need for catharsis. But anti-abortion groups, which see the laws as a step on the path to recognizing "fetal personhood," leverage these opportunities. For example, as Michelle Goldberg recently pointed out over at The Daily Beast, when the UVVA passed after Laci Peterson, eight months pregnant, was murdered by her husband in 2002, most people didn’t realize that the National Right to Life Committee (NRLC) had already been trying to get the statute through for five years. The NRLC has endorsed feticide measures as a way to “change the hearts and minds of the public on abortion,” according to a 2007 strategy memo, and at the state level, the laws have often been rolled into big packages of pro-life legislation that include explicit abortion restrictions.
Roughly a dozen states have statutes on the books that punish crimes in the name of the woman, not the fetus. These “enhance” the sentences for assault and murder if the victim was pregnant, or treat pregnancy as an “aggravating factor” that can trigger the harshest possible punishment. Perhaps the best example is Colorado, where Democrats successfully fought a feticide bill just this winter. Enhanced sentencing measures vary from state to state. Some only apply in cases where a pregnancy is lost; in a minority of states, the law only takes effect if the attacker knew the victim was pregnant.
But fetal homicide laws outnumber enhanced sentencing laws roughly three to one, and while a deluge of feticide-style measures have passed in the last decade—the National Conference of Legislatures records 15 measures, not to mention UVVA, between 2004 and 2006 alone—there’s been no such uptick in enhanced sentencing. In fact, many states that have long used enhanced sentencing measures have recently passed feticide laws, too. In North Carolina, for example, the bill that passed in 2011 was named "Ethen's Law," after murdered Jenna Nielson's unborn son.
Feticide laws give the state a Big Brotherly power over pregnant women. That said, they don’t constitute as direct a challenge to Roe as other anti-abortion measures, such as TRAP laws and fetal heartbeat legislation. Borgmann, who worked at the ACLU’s Reproductive Freedom Project in the late nineties and early 2000s, suggested this might explain the lack of feminist firepower leveled against them.
“I don’t think that these laws have had the kind of impact that the anti-abortion movement has wanted them to have,” Borgmann said. “It doesn’t come up very often, and it’s not a big effect.”
Carolyn Ramsey of University of Colorado Law School made the same argument in 2007. As of the mid-2000s, she pointed out, almost 80 percent of Americans thought a person should face murder charges for causing the death of an “unborn child,” but Americans also opposed overturning Roe v. Wade by a two-to-one margin. "People occupying the middle ground between the hardcore pro-choice and pro-life trenches want to set the bounds of legality in different places,” Ramsey wrote, inferring that the public is able to “take a contextual view of homicide and to recognize that abortion does not equate to fetal murder."
But Paltrow says she hopes her new study, which is the first of its kind, shows that even if these laws aren’t going to flatten Roe v. Wade, they hurt women much more than we knew, and we let them pass at our peril. “Without the data that we’ve now provided, the problem was being able to articulate what the consequences could be. It made you sound crazy, outlandish, hypersensitive around issues like abortion and women’s rights,” she says. “The data gives you the ability to say, this is not hypothetical.”
The only hypothetical left is how much murder verdicts in the Welden and Castro cases would advance the march of fetal homicide laws, since the states those men live in, Florida and Ohio, already have them. Where this particular attempt on women’s rights is concerned, as Paltrow put it, “we’re not talking about some imaginary slippery slope. We’re already at the bottom.”
Nora Caplan-Bricker is an assistant editor at The New Republic. Follow her on Twitter @ncaplanbricker.