MARCH 3, 2011
A Georgia state representative known for his fringe politics has introduced a radical pro-life bill that not only calls for the nullification of Roe v. Wade, but also makes having a miscarriage a capital offense unless the mother can irrefutably prove that there was “no human involvement whatsoever in the causation of such an event.” Laced with misogyny, insensitivity, and pseudo-science, Representative Bobby Franklin’s House Bill 1 (HB1) could be considered ridiculous, if it was not just the latest episode in a frightening turn of right-wing pro-life extremism that targets pregnant women.
HB1 rationalizes that, because “Georgia has the duty to protect all innocent life from the moment of conception until natural death,” the failure of an inseminated egg to come to term should fall under suspicion as an act of “prenatal murder.” So, if Franklin has his way, hospitals would be mandated to report every miscarriage (which, he points out, is known medically as “spontaneous abortion”) to the local police, who would then somehow ascertain the cause of the miscarriage. The burden of proof, in other words, would be placed on the woman who might be mourning the loss of her pregnancy.
There are many egregious problems with this bill, but, for starters, consider just the scientific angle. According to the National Institute of Health’s website, “among women who know they are pregnant, the miscarriage rate is about 15-20%.” According to the Mayo Clinic, this is a conservative estimate, and it does not include the miscarriages that occur when a fertilized egg fails to implant properly and is thus released from the body during menstruation. In these circumstances, women rarely know that they are pregnant, let alone that they have miscarried. (Some women have recently sent Franklin form letters along with photos of their used tampons, writing, “I would like to be sure that I am not killing any more Georgia citizens.”)
But, even when women do know they’ve conceived, it’s not always easy to determine what caused a miscarriage. “It would be difficult to discern if [a miscarriage] was purposely induced unless it was extremely obvious, as it was in the days before the abortion was legal and there was the use of dirty hangers,” says Dr. Lisa A. Nicholas, a clinical assistant professor at the David Geffen UCLA School of Medicine. Nicholas adds that, given the extreme trauma and psychological stress a woman often undergoes following a miscarriage, accusation and investigation would be a “horrible action without any possible benefit.”
The fact that the bill doesn’t define what “human involvement” in a miscarriage means also complicates matters. What about exigent circumstances that would necessitate intervention? If, for example, a woman had a partial miscarriage, would she have to wait until her body ejected the partial remains of her fetus, risking septic shock, so that she and the physician who assisted her wouldn’t be criminally libel? Numerous attempts by TNR to contact Franklin to pose such questions went unanswered, save for the representative’s prerecorded answering machine thanking callers “for giving me your encouragement about my sponsorship for House Bill 1, recognizing that prenatal murder is murder.”
Granted, Franklin has become known for his legislative zealotry, introducing bills that would require Georgians to pay their taxes in gold and silver coins; bar the state from issuing driver’s licenses (because they impede citizens’ right to free travel on public roads); and rename “victims” of rape, domestic abuse, and stalking as “accusers.” None of these bills has passed, and HB1 has scant support right now. “If you want to pass a bill, Bobby Franklin is probably not the person you’d want to carry it for you,” says Charles S. Bullock, University of Georgia professor of political science. Still, Bullock warns that the bill should be approached with some caution. “There have certainly been a number of efforts over ten to twelve years to restrict access to abortion in Georgia that have passed,” he notes. (Georgia received a D-rating in a National Abortion Rights Action League report this year.)
But Franklin’s bill didn’t come out of left field; in recent years, other states have made moves toward more extreme anti-abortion bills. In March 2010, a law went into effect in Utah that calls for women to be charged with murder for having miscarriages caused by “intentional or knowing acts” at any stage of their pregnancies. While many states have laws against feticide, the Utah law is unique in that it holds mothers, not third parties, criminally accountable—a development that worried groups like the American Medical Association and the American Civil Liberties Union. After all, what constitutes a “knowing” act? Would staying with an abusive boyfriend apply? What about refusing a doctor’s orders about the best way to deliver a baby or care for oneself during a pregnancy? Governor Gary Herbert, a Republican, refused to sign the original version of the law, which criminalized any “reckless” act that led to a miscarriage, citing unclear language that could potentially lead to the arrest of women who miscarry after, among other things, unintentionally falling or over-exercising. Still, the original version passed overwhelmingly in the state legislature—only four of 29 senators voted against it.
Then, there’s Iowa, where, last year, a pregnant woman spent two nights in jail after falling down a set of stairs because, once in the hospital, she confided to nurses that she had considered abortion or adoption after she had become estranged from her husband. She was detained because a nurse had misnoted on her chart that the woman was in her third trimester, which is when, according to state feticide law, a violent act committed against a pregnant woman can be considered criminal. In fact, she was in her second trimester, so she was let go. But now, the precedent of the woman’s arrest is on the books.
Moreover, there is “personhood” legislation, which has been introduced in several states. These laws would give legal protection to fetuses, meaning it’s possible that their rights, in some circumstances, could override those of mothers. “We believe that anti-abortion, feticide laws, and other laws that seek to legally segregate fetuses from pregnant women affect all women, including those who plan to come to term,” says Lynn Paltrow, executive director of the National Advocates for Pregnant Women (NAPW), which is currently compiling a report of every arrest, detention of, and forced intervention on women between 1975 and 2005 in which their pregnancies were key elements of their alleged crimes.
To be sure, Representative Franklin’s outrageous proposal in Georgia is part of a broader, well-documented GOP assault on reproductive rights: the now-scrapped bill in South Dakota to legalize the killing of abortion providers; the nearly identical bill that popped up in Nebraska; and House Republicans’ efforts to defund Planned Parenthood, to name a few. (TNR’s Ed Kilgore has thoroughly documented the return of abortion politics.) But Franklin’s contribution to this assault has been to go after mothers, not abortion providers. This line of attack may have begun in other states, but Franklin has taken it to the next level with HB1, by demanding that women prove how and why they lost their pregnancies. Indeed, he has made an already frightening trend a lot scarier.
Laura Stampler is an intern at The New Republic.