A New Era of Slavery: Criminal Miscarriage as a Gateway to Loss of Reproductive Freedom

Erica David

Writer’s Comment: I have always enjoyed writing, from editorial pieces, to scientific analyses, to poetry. Watching the words dance across the page, a sentence pop into reality, or a concept settle into a slow simmer acts as a sort of release from the stresses of the outside world. Yet with this research paper, that usual sense of release was lost, as suddenly the harsh, shocking reality of the issue invaded my peaceful writing space. I found myself angry, scared, and anxious about writing, emotions that grew into passion as I began to understand the urgency of educating people about my subject. I would like to thank Dr. Katherine Arosteguy, as her guidance has enhanced my writing and helped me navigate this controversial area. Hopefully, readers come away with a better understanding of the dangers of criminal miscarriage and are empowered and activated to take a stand.

Instructor’s Comment: In my Advanced Composition class (UWP 101), I encourage students to examine contemporary controversial topics that affect not only the landscape of American culture, but also their own personal lives. Erica David’s essay, “A New Era of Slavery—Criminal Miscarriage as a Gateway to Loss of Reproductive Freedom,” was written in an effort to explore the national and personal implications of the current sweep of state legislation aimed at regulating women’s bodies by criminalizing miscarriage. Erica’s passion for this topic was clear from the start, as she rigorously researched the legislation and viewed video coverage of the Senate floor debates. Erica and I worked together to see this legislation as part of the bigger picture of the Political Right’s chipping away at Roe v. Wade by assigning personhood to the fetus. I helped Erica with tone and with fine-tuning the structure, and I pointed her in the direction of possible sources, but the level of thought she gives this topic and her adept use of logical evidence to support her view is all hers. Erica came to my class an excellent writer; she has a very natural talent for the art of concise and poignant sentence structure. All of her papers made me want to read slowly and re-read. It’s not every day I have a student who takes the task of analytic writing so seriously; Erica is the writing student we all dream of having in our class.
—Katie Arosteguy, University Writing Program

I was a premature baby. Not by a day, or two, or seven, but by six weeks. My family jokes that I have never been one to wait for life. My rush to escape the womb seems a simple precursor to the fast-paced life I enjoy today. Yet the six-week early birthday hardly tells the tale; at four and a half months my mother began having strong uterine contractions, and as a result she spent the remainder of her pregnancy on bed rest, heavily medicated, in and out of the hospital. Those months were filled with a nervous energy, as every premature contraction beckoned back to the loss of her first pregnancy, a miscarriage three months in. History was hardly on her side, as my grandmother also struggled with miscarriage, losing three of her pregnancies before reaching term. So when my mother’s contractions once again broke through the medication, it seemed the already slim odds had started to run out. During labor the umbilical cord wrapped around my neck, leaving me a dark denim blue when I was delivered. With lungs barely developed enough to survive, I spent the next ten days in an oxygen tank. At any moment, I could have become another miscarriage, another lost pregnancy. Nevertheless, twenty-one years later here I am, a strong, independent woman beginning to wonder about children of my own. Yet this leaves me faced with a dilemma. As I begin to think about starting a family, I am forced to remember the likelihood that I, like my mother and grandmother, will miscarry. Until recently that was a simple fact, a caution to be dealt with using modern medicine and technology. Unfortunately, upcoming legislation has turned that fact to fear. Specifically, bills have been presented in Utah (UT HB 12) and Georgia (GA HB 1), which strive to redefine abortion laws with a more stringent focus on concepts of prenatal murder and criminal miscarriage. In simpler terms, if passed, this legislation could turn my likely miscarriages into impending felony charges as severe as the death penalty. 

Now, I do not consider myself an extremist. In truth I rarely find an impassioned desire to rise to debates about similar forms of female oppression like discrimination in the workplace or pornography; however, in the issue of reproductive rights I cannot sit idly by—no one can. The current legislation is so extraordinarily patriarchal I find myself petrified at the reality of either bill passing into law. This fear is not driven by the standard pro-life, child murder stance–no, that debate has been in action for years and, for me, honestly has some merit. I can identify with the emotions behind protecting our youth, but in an issue so intimate as her own anatomy, the woman deserves a voice. Her life, her future, and her health are outright most important. Implied compulsory pregnancy, or forcing women to carry pregnancies to term, destroys the woman’s autonomy, identifying her instead as a voiceless reproductive machine forced to cater to the fetus without regard for her own life or desires.

Certainly, the pro-life/pro-choice standoff is not novel; however, this recent expansion to holding women liable for miscarriage to the extent of defining it as murder amplifies the debate to a new and disturbing level. Women’s rights are removed and replaced with those of the fetus, pitting women against their own anatomy as an uncontrollable biological event threatens to sentence them to prison or death. I hope to expose the dangerous reality of the bills’ unintended consequences, thereby increasing awareness and underscoring the need to focus on the woman and her individual rights in this debate. 

History on the legislation differs between the states. The Utah legislation, sponsored by Representative Carl Wimmer, is a direct reflection of a recent incident in Vernal, Utah. CBS News reports that “a 17-year-old Uintah County girl paid Harrison [the 21 year-old boy charged with the crime] $150 to beat her after her boyfriend threatened a breakup if she didn’t get rid of the child” (Martinez). The child survived, but whereas Harrison was charged, the girl was not held criminally liable, sparking a campaign to rewrite laws to prevent this sort of extreme situation. Utah legislation seeks to remove protection provided to women seeking abortions and redefines prenatal homicide. Although intentions are focused on extreme cases such as the occurrence in Vernal, the bill fails to recognize and protect against the unintended consequences, dramatically restricting women’s freedoms. 

The Georgia legislation, by contrast, directly and intentionally targets women’s reproductive rights. The sponsor, Representative Bobby Franklin, is well known for extreme viewpoints and is a strong advocate of the pro-life movement. His bill attacks women’s rights in a blatant and abrasive manner, bypassing Roe v Wade (claiming the decision has no jurisdiction in Georgia), and relabeling miscarriage as a felony equivalent to homicide. The driving force for the legislation is the pro-life campaign, a movement that seeks to outlaw all abortions, protecting the rights of the fetus as a person. In an interview for LifeSiteNews, President of the American Life League, Judie Brown, calls Franklin “a very heroic man,” urging her audience to “unanimously support” the legislation “which is ultimately is [sic] the goal of the entire pro-life movement” (Smith). The legislation is powered by its strong focus on the rights of the fetus, on the desire to save an unborn child from murder. Yes, individuals are guaranteed certain rights in this country; however, what the pro-life movement fails, or refuses, to recognize is that by forcing delegation of rights to the unborn they shatter the very same rights for the woman.

Indeed, centralizing women’s rights in this debate is essential, a theme well expressed by prominent feminist writer, Ellen Willis, as she conveys frustration in her article “Putting Women Back into the Abortion Debate.” She highlights the injustice, stating, “Public concern over abortion centers almost exclusively on fetuses; women and their bodies are merely the stage on which the drama of fetal life and death takes place” (757). The statement eloquently captures the objectification of the female body, reducing women to props in the glorified life of the fetus. She expands on the topic by recognizing that during pregnancy, a woman “is immersed in the most intimate possible relationship with another being,” a relationship marked with emotional, mental, and physical damages, and substantial chance of illness or death (758-759). Describing her own pregnancy as painful, exhausting, and psychologically consuming, she wonders, “Can it be moral, under any circumstances, to make a woman bear a child against her will?” (759). While a wanted pregnancy can be an amazing and magical experience, a woman forced to carry a pregnancy to term is being forced to endure extensive emotional and physical damage, putting her life in danger without her consent. Even if we accept that the fetus is a human being, fully protected and entitled to rights equal to those of the mother, “no ‘member of the species’ in any stage of development has the ‘essential right’ to make use of someone else’s body, let alone in such an all-encompassing fashion” (Willis 759). No adult would be allowed to inflict treatment similar to the pregnancy experience upon another person; what exempts the fetus from this societal standard? The bottom line is that in a relationship as interconnected as a pregnancy, providing additional rights to one party inherently deprives rights from the other. 

The key issue is the dichotomy constructed between the woman and the fetus. Pitting the woman against her fetus places substantial pressure on the issue, as finding a middle ground becomes increasingly complicated. In her article “Fetal Rights vs. the Female Body: Contested Domains,” Jean Heriot, a cultural anthropologist, identifies this “fundamental dichotomy between the rights of the woman as a person and the rights of the fetus” as a key aspect of the debate (180). She quotes an earlier essay by Mary Anne Warren, pro-choice activist and Professor of Philosophy at San Francisco State University, who claims “It is impossible to treat fetuses in utero as if they were persons without treating women as if they were something less than persons,” again highlighting the dehumanizing impacts of the legislation to the woman as an individual (Warren). Heriot continues by underscoring women’s isolation, pointing to the “symbolically loaded label[s]” (179) used in legislative wording. Identification of the fetus as an unborn child directly implies “a dichotomy between the rights of the mother and the rights of the fetus…[an attempt] to legislate morality by enforcing one particular view of personhood” (Heriot 179). She emphasizes that creating such an “adversarial relationship provides the state with a powerful means for controlling women’s behavior during pregnancy, thereby threatening women’s fundamental rights” (182). These two beings, woman and fetus, are interconnected–intimately engaged and inseparable, therefore they cannot be isolated and used against each other. 

The language of both bills disregards women as individuals of importance, focusing exclusively on fetal rights to create a situation where women can suffer severe punishment for biology out of their control. Georgia legislation proclaims, “removal of a fetus from a woman with an intention other than to produce a live birth or to remove a dead fetus” constitutes a murder (Franklin, Article 5-b-2). The true complication, however, lies in the following statement: “‘spontaneous abortion’…popularly [known] as a ‘miscarriage’ [will only be excluded] so long as there is no human involvement whatsoever in the causation of such event” (Franklin, Article 5-b-2). This boldly ambiguous claim holds potential to become a legal firing ground for attacks on women, as absolute proof of no involvement opens a door to a subjective and case-specific interpretation. The call for the fetus to be removed from the womb only “to produce a live birth or remove a dead fetus” (Article 5-b-2), directly implements a standard of compulsory pregnancy, forcing women into a role of reproductive servitude against their will.

While the Utah legislation is substantially tamer, the bill still fails to counter potential for considerable restrictions to women’s freedoms. The phrase generating the most concern allows homicide classification if a person “intentionally, knowingly, [or] recklessly…causes the death of another human being, including an unborn child at any stage of its development” (Wimmer Article 76-5-201-1a). Similar to the Georgia legislation, this places the woman in a pivotal position, criminalizing her for situations often out of her control. A jog in the park or a drink of coffee could be interpreted as the cause of a miscarriage, leaving a woman liable and at criminal risk. The term “recklessly” sparks the strongest dispute, as the vague, open-ended meaning is vulnerable to exploitation. During floor debates, bill sponsor Wimmer defined reckless as “surrounding conduct or the result of conduct when the person is aware but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur,” emphasizing conscious disregard in an effort to counter concerns that women will be prosecuted unjustly (House Floor Debates). Nonetheless, in the hands of the right prosecutor, the verbiage could quickly include activities as commonplace as exercising or drinking coffee if malicious intent is suspected. Senator Ben McAdams expressed this concern in the floor debates, stating that, “including a reckless standard for criminal homicide…opens up a Pandora’s box [of] consequences and prosecutions that we are not trying to reach in this circumstance” (Senate Floor Debates). Unfortunately, Senator Ross Romero’s motion to amend the bill by removing the term “reckless” failed (Senate Floor Debates), leaving the wording dangerously open for interpretation.

The most profound difficulty with the proposed legislation is the infliction of responsibility on the woman for miscarriage, an uncontrollable facet of her biology and anatomy. Timothy F. Murphy, Pennsylvanian Republican Representative, discusses the issue in his article “The Moral Significance of Spontaneous Abortion,” arguing for the deeper implications of including miscarriage in the abortion debate. He opens with a clear medical definition of “spontaneous abortion,” commonly called miscarriage, as “the termination of pregnancy…before the fetus is sufficiently developed to survive…without inducement by the mother or other persons” (Murphy 79). The key aspect is the final clause, highlighting that the mother is not involved in the spontaneous abortion and, as a result, cannot be held liable for that loss of life. Still, the complication becomes distinguishing what is or is not spontaneous, the proposed necessity for causation for each recorded miscarriage providing a substantial field for personal bias in prosecution. 

Miscarriage is common in human reproduction, with research indicating incidences of ten to fifteen per cent of all known pregnancies, a value which increases if considering the multitude of pregnancies “aborted at menstruation without the woman’s being aware” (Murphy 79). Given that proposed legislation is to be enforced “from the moment of conception” (Franklin Article 5-b-1), these losses, although completely natural and out of the control of the woman, have potential to result in prosecution if proof of ‘no involvement’ cannot be satisfied. 

The consideration of miscarriage causation brings up another rather interesting issue with the legislation. Little is known about the scientific causes or triggers of miscarriages, and the body of knowledge for preventing them is even smaller. Murphy cites that “fifty to sixty per cent of early spontaneous abortions are associated with chromosomal anomaly…Such abnormality radically affects the development of the embryo” (80). Chromosomal complications are far outside women’s control, yet they can cause an astounding number of miscarriages for which women could be blamed. Even assuming a healthy embryo, many common occurrences can cause significantly increased risk of spontaneous abortion. A 1992 study published in Epidemiology links caffeine consumption to increased miscarriage risk, stating, “caffeine consumption may result in a decrease of estrogen level…and subsequently increase the risk of spontaneous abortion” (Wen et al 42). A study from California shows that “women abstaining from tap water or drinking bottled water during the first trimester of pregnancy may be at reduced risk of spontaneous abortion” (Swan et al 83). Research by Green et al indicates that “living within 50 m of a road with AADT [Annual Average Daily Traffic] of 15,200 or more was significantly associated with SAB [spontaneous abortion]” (1939). Miscarriages have also been linked to electric blanket use (Belanger et al) and consumption of certain types of fish (Mendoula et al). With this powerful base of evidence attributing miscarriage to daily activities as mundane as driving through traffic or drinking water, criminalizing miscarriage, and as a result, the women who suffer them, seems to be a hasty and poorly thought out course of action. 

Proposed legislation holds women liable, with severe consequences, for knowingly exposing themselves to conditions shown to cause miscarriage. A woman pursuing a healthy pregnancy, who wants and loves her unborn child, may be thrown into a hostile interrogation if an unfortunate and unintended miscarriage were to occur. The vague definitions of knowing intent and reckless open the door for prosecutors to twist words and motivations into a felony sentence. Miscarriage has been associated with a vast range of activities, many common in the everyday lives of active women. Consequently, once pregnant, women will be essentially forced to lock themselves in airtight, sanitary boxes for nine months, drinking only distilled water and crossing their fingers in hopes that their bodies can retain the pregnancy. Make sure to install an unbreakable glass ceiling—it will add more meaning to the experience. 

While the restriction of women’s rights is, in itself, a powerful incentive to fight against legislation akin to that proposed in Utah and Georgia today, I feel the issue reaches dreadfully near a more disturbing concept. By abolishing women’s autonomy and individual freedom of choice, the movement activates a precedent for compulsory pregnancy, flirting with the borderline between a free society and one of oppression and slavery. Garret Hardin, Professor of Human Ecology at UC Santa Barbara, calls compulsory pregnancy “a special case of compulsory servitude, which the Western world has agreed, in principle, has no valid justification” (246). A modern, civilized, enlightened society has, in theory, progressed beyond such barbaric rituals as slavery, so how can forcing a woman against her will to endure nine months of servitude to a fetus gain serious consideration? 

I believe in the good of this nation, in the strength of our convictions and unwavering moral standards that ensure freedom, security, and independence for all. I suppose this belief is a large part of why these criminal miscarriage laws are truly frustrating. The concept that everything I have pursued in life—my future, my passions, my dreams–may be ripped away in an instant and replaced with a prison jumpsuit is frightening. To have that occur all because I was born with a uterus I cannot control–now that thought is simply paralyzing. The legislation in Georgia and Utah threatens to set a precedent for similar state or federal bills, creating a fast spreading and hard to contain assault on women’s rights that will be next-to impossible to undo. If passed, women will constantly be in fear of their anatomy, generating a profound insecurity and repression that will underscore the resulting sexual hierarchy. As a society we must stand up against this distressing legislation, refuse the subjugation of women, and protect the very rights that set our culture apart as one espousing compassion, justice, and humanity.

Belanger, Kathleen, Brian Leaderer, Karen Hellenbrand, Theodore R. Holford, and Jean-ellen McSharry. “Spontaneous Abortion and Exposure to Electric Blankets and Heated Water Beds.” Epidemiology 9.1 Jan. (1998): 36-42. JSTOR. Web. 27 Feb. 2011.

Franklin, Bobby. Georgia State House of Representatives. A Bill to be Entitled of 2010. 43rd Cong. HB 1. State of Georgia, 2010. Web. 25 Feb. 2011.

Green, Rochelle S., Brian Malig, Gayle C. Windham, Laura Fenster, and Bart Ostro. “Residential Exposure to Traffic and Spontaneous Abortion.” Environmental Health Perspectives 117.12 Dec. (2009): 1939-44. JSTOR. Web. 27 Feb. 2011.

Heriot, Jean. “Fetal Rights versus the Female Body: Contested Domains.” Medical Anthropology Quarterly 10.2 June (1996): 176-94. JSTOR. Web. 1 Mar. 2011.

House Floor Debates HB0012. By Utah House of Representatives, 2010. Utah State Legislature. 29 Jan. 2010. Web. 25 Feb. 2011. 

Martinez, Edecio. “Abortion Beating: Aaron Harrison Sentenced for Trying to Cause Miscarriage with Fists.” CBS News. Ed. Dan Farber. CBS, 28 Oct. 2009. Web. 9 Mar. 2011.

Mendola, Pauline, Germaine M. Buck, John E. Vena, Maria Zielezny, and Lowell E. Server. “Consumption of PCB-Contaminated Sport Fish and Risk of Spontaneous Fetal Death.” Environmental Health Perspectives 103.5 May (1995): 498-502. JSTOR. Web. 27 Feb. 2011.

Murphy, Timothy F. “The Moral Significance of Spontaneous Abortion.” Journal of Medical Ethics 11.2 June (1985): 79-83. JSTOR. Web. 2 Mar. 2011.

Senate Floor Debates HB0012. By Utah Senate, 2010. Utah State Legislature. 29 Jan. 2010. Web. 25 Feb. 2011. 

Smith, Peter J. “Interview With Judie Brown on Pro-life Hope From Dramatic Georgia Bill.” LifeSiteNews. 16 Jan. 2007. Web. 15 Mar. 2011.

Swan, Shanna H., Raymond R. Neutra, Margaret Wrensch, Irva Hertz-Picciotto, and Gayle C. Windham. “Is Drinking Water Related to Spontaneous Abortion? Reviewing the Evidence from the California Department of Health Service Studies.” Epidemiology 3.2 Mar. (1992): 83-93. JSTOR. Web. 27 Feb. 2011.

Warren, Mary A. “On the Moral and Legal Status of Abortion.” Biomedical Ethics 4th (1996): 434-40. Web. 18 July 2011.

Wen, Wanqing, Xiao Ou Shu, David R. Jacobs, and Judith E. Brown. “The Associations of Maternal Caffeine Consumption and Nausea with Spontaneous Abortion.” Epidemiology 12.1 Jan. (2001): 38-42. JSTOR. Web. 27 Feb. 2011.

Willis, Ellen. “Putting Women Back into the Abortion Debate.” Current Issues and Enduring Questions - A Guide to Critical Thinking and Argument with Readings. Ed. Sylvan Carnet and Hugo Bedau. Ninth ed. New York: Bedford/St Martin’s, 2011. 757-63. Print.

Wimmer, Carl. Utah State House of Representatives. Criminal Homicide and Abortion Amendments of 2010. General sess. HB 12. State of Utah 2010. Web. 25 Feb. 2011.