Should Miscarrying A Baby Be A Crime? Alabama Thinks So

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The British and Australian press have picked up an interesting trend story about American culture. As this article from The Guardian puts it, women are increasingly facing criminal charges for losing their babies. Yes, you read that right. Miscarrying or losing a newborn is now a crime, usually murder or child endangerment. (The Guardian’s headline says there is an “Outcry in America” over this, but unfortunately, that doesn’t seem to be true. A quick Google News search finds hits only in the foreign press and on a few English-language blogs.)

The women in the article aren’t accused of deliberately trying to induce miscarriage. Rather, they are usually accused of unintentionally causing the death through drug use; one woman featured in the article, Bei Bei Shuai of Indianapolis, attempted suicide by eating rat poison. In Alabama, where The Guardian says at least 40 women have been prosecuted for drug use during pregnancy, prosecutors are repurposing the state’s chemical endangerment law, which was intended to protect the children of addicts from meth labs.

As with so many laws concerning pregnancy, the anti-abortion lobby is behind all this. You see, if women can be prosecuted for doing anything to endanger their babies, then it’s a short, slippery slope before fetuses can be declared people. And from there, it’s only a few court decisions before abortion is redefined as murder and re-criminalized. If you think I am exaggerating, please see Alabama’s House Bill 8, which explicitly redefines “child” to include an unborn child under the chemical endangerment law. (According to the Alabama Women’s Resource Network, it didn’t pass.)

There’s no national consensus on whether a fetus is legally a person. A majority of states have laws allowing the prosecution of someone who kills an unborn child, but most of them have explicit exceptions for abortion — they’re aimed at violent crime against the mother. In the only state Supreme Court decision I could find directly addressing whether a fetus is a person for the purposes of criminal law, the Hawaii Supreme Court said no. Thus, if this issue goes to court, abortion opponents may not have a lot of precedent to rely on.

But more importantly, why is this a good idea? Losing a baby breaks parents’ hearts, and prosecuting them for it just seems cruel. It also does nothing to protect the child — the supposed rationale for the Alabama prosecutions — when there is no longer any child to protect. And if the child doesn’t die, wouldn’t it be better for the mother to get drug treatment, so she has a chance of being a good mother, rather than prison?

And finally, do we really want to start criminalizing pregnant women’s choices? Clearly, taking meth while pregnant is not a good health choice, but neither are excessive alcohol or fast food. If it’s okay to prosecute women for taking drugs during pregnancy, how many glasses of wine should they be allowed to have at dinner? From a community of people who think women shouldn’t be able to choose abortion at all, this doesn’t seem too far-fetched. When you think a fetus is more important than an adult woman’s ability to control the direction of her own life, how hard is it to prohibit a cup of coffee?

It’s difficult not to see this as an attempt to control or penalize women, using cute, chubby-cheeked babies as a justification. And that’s something no woman should put up with, even women who are strongly opposed to abortion. Whether you believe a fetus is legally a person, a woman is certainly a person — and she ought to be able to decide what’s for lunch without worrying about criminal prosecution.

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