Windlestraws
I am told that this sort of thing doesn't happen, is a
straw man.
Kate Sheppard, explains the Mississippi situation for
Mother Jones
On March 14, 2009, 31 weeks into her pregnancy, Nina Buckhalter gave birth to a stillborn baby girl. She named the child Hayley Jade. Two months later, a grand jury in Lamar County, Mississippi, indicted Buckhalter for manslaughter, claiming that the then-29-year-old woman "did willfully, unlawfully, feloniously, kill Hayley Jade Buckhalter, a human being, by culpable negligence."
The district attorney argued that methamphetamine detected in Buckhalter's system caused Hayley Jade's death. The state Supreme Court, which heard oral arguments on the case on April 2, is expected to rule soon on whether the prosecution can move forward.
If prosecutors prevail in this case, the state would be setting a "dangerous precedent" that "unintentional pregnancy loss can be treated as a form of homicide," says Farah Diaz-Tello, a staff attorney with National Advocates for Pregnant Women, a nonprofit legal organization that has joined with Robert McDuff, a Mississippi civil rights lawyer, to defend Buckhalter. If Buckhalter's case goes forward, NAPW fears it could spur a wave of similar prosecutions in Mississippi and other states.
—and notes the problem:
Mississippi's manslaughter laws were not intended to apply in cases of stillbirths and miscarriages. Four times between 1998 through 2002, Mississippi lawmakers rejected proposals that would have set specific penalties for damaging a fetus by using illegal drugs during pregnancy. But Mississippi prosecutors say that two other state laws allow them to charge Buckhalter. One defines of manslaughter as the "killing of a human being, by the act, procurement, or culpable negligence of another"; another includes "an unborn child at every stage of gestation from conception until live birth" in the state's definition of human beings.
And while there are some—for instance, prosecutors—who might think this sort of thing is straightforward, many are not buying it.:
The cause of any given miscarriage or stillbirth is difficult to determine, and many experts believe there is no conclusive evidence that exposure to drugs in utero can cause a miscarriage or stillbirth. Because of this, prosecuting Buckhalter opens the door to investigating and prosecuting women for any number of other potential causes of a miscarriage or stillbirth, her lawyers argued in a filing to the state Supreme Court—"smoking, drinking alcohol, using drugs, exercising against doctor's orders, or failing to follow advice regarding conditions such as obesity or hypertension." Supreme Court Justice Leslie D. King also raised this question in the oral arguments last month: "Doctors say women should avoid herbal tea, things like unpasteurized cheese, lunch meats. Exactly what are the boundaries?"
Laws that criminalize hurting or killing fetuses are pitched as ways to protect pregnant women from abuse but are often used to prosecute those same women, NAPW says. The group has documented more than 400 cases across the country in which these laws have been used to detain or jail pregnant women. Earlier this year, Mississippi's neighbor to the east, Alabama, set its own precedent for prosecuting pregnant women for drug use. In January, the Alabama Supreme Court upheld convictions against two women—Amanda Kimbrough and Hope Ankrom—for "chemical endangerment" of a child, under a 2006 law that was written to punish people who expose children—not fetuses—to illegal drugs. Kimbrough gave birth prematurely to a baby boy who died shortly thereafter; she was charged after testing positive for meth. Ankrom gave birth to a healthy baby boy, but she was charged after he was found to have marijuana and cocaine in his system.
Indeed, Mississippi is preparing to prosecute for murder a woman named Rennie Gibbs, who is accused of murdering a fetus with cocaine at age sixteen.
Buckhalter's lawyers contend that both Buckhalter and Gibbs are collateral damage in the abortion wars in Mississippi, one of the most anti-abortion states in the country. A 2011 state ballot measure there would have granted full rights to fertilized eggs, making all abortions illegal all the time. That measure failed, but abortion foes have pledged to try again in 2015, and lawmakers are working hard to close the state's last remaining abortion clinic. Charging a woman with manslaughter for using drugs while pregnant is just a backdoor way of establishing legal "personhood" for fetuses, says Diaz-Tello.
But as McDuff pointed out in oral arguments before the Supreme Court last month, even the state's law defining homicide as including the killing of a child at "every stage of gestation" includes a specific exemption for women seeking a legal abortion. If a woman can legally terminate an unwanted pregnancy, he argued, how can she be jailed for unintentionally ending a wanted one?
Perhaps the most perverse impact of prosecuting Buckhalter, her lawyers say, is that it could lead to more abortions. Fear of prosecution "may cause a mother to seek an abortion that she might not have otherwise have sought," particularly if she is dealing with drug or alcohol addiction, Buckhalter's lawyers argued in a court filing.
That last point has a good deal of support, including the AMA, American Academy of Pediatrics, and the American College of OB/GYNs.
For abortion foes, it's nice work if you can get it—perpetuating the problem one purports to palliate is great job security. But this is all cynical politicking, not any genuine quest for justice.
Even judges see the problem.
To the other, we have
an answer on the LACP issue in the context of rape:
Women who are pregnant as a result of rape must take extra care to not entertain any mental health problems, as any behavior undertaken in that state of mind may be held against them in a court of law.
In Mississippi, at least. Or Alabama. Or South Carolina. Or Indiana.
According to the anti-abortion crowd.
As
Lynn Paltrow of NAPW explains:
Mississippi prosecutors and judges are not alone. In Indiana, after 34-year-old Bei Bei Shuai grew so despondent that she tried to kill herself while pregnant and tragically lost her newborn, prosecutors charged her with murder (defined to include viable fetuses) and attempted feticide (defined to include ending a human pregnancy at any stage). In February, the Indiana Court of Appeals in a 2-1 decision ruled that these laws could be used to prosecute Ms. Shuai. This is so despite the fact that attempting suicide is not a crime in Indiana and even though the murder and feticide laws in Indiana, like those in Mississippi, were specifically passed to address people who harm pregnant women — not treat women who become pregnant as potential criminals.
If Indiana’s Supreme Court upholds this judicially expanded version of the law, it will set a precedent and do what “personhood” measures do — treat eggs, embryos, and fetuses as separate legal persons and the women who carry, sustain, and nurture them as criminals when things go wrong. Pregnant women in Indiana who experience a miscarriage or a stillbirth that law enforcement believes was caused by something she did or didn’t do during pregnancy (think cigarettes, driving without a seatbelt, refusing cesarean surgery) could be investigated, arrested, prosecuted, and incarcerated, and since the charge is murder — held without bail.
Moreover, if Roe v. Wade were ever overturned, you can be sure that in Indiana a woman caught seeking or having an abortion would be charged with murder or attempted murder.
In Alabama, prosecutors and judges have also used their authority to circumvent a vote on personhood by broadly interpreting and applying the state’s 2005 chemical endangerment law. This law was passed to make it a crime to bring a “child” into an “environment” where drugs are “produced or distributed,” such as a dangerous methamphetamine lab. Local prosecutors decided, though, that it could be used to arrest and punish pregnant women who went to term and had used any amount of a controlled substance.
In other words, pregnant women, according to the prosecutors, are no different than meth labs and pregnancy is the same as “chemical endangerment.” Sixty women have been arrested and the Alabama Court of Criminal Appeals has so far affirmed this misuse of the law. Like “personhood” measures that would redefine person to include the unborn, the court of appeals redefined the word “child” to include the unborn. They did this without a statewide discussion and without a vote, in spite of the fact that the legislature has repeatedly and explicitly decided not to make the chemical endangering law applicable to women who use a drug while pregnant.
The trend is clear; what stands out in this case is that what some would dismiss as hyperbole has come from the mouth of a state supreme court justice°.
That is to say, it really does happen.
____________________
Notes:
° state supreme court justice — It is worth noting that Justice King has only been on the state's highest bench since February, 2011, after his appointment by Gov. Haley Barbour. That is to say, he's no flaming liberal.
Works Cited:
Sheppard, Kate. "Mississippi Could Soon Jail Women for Stillbirths, Miscarriages". Mother Jones. May 23, 2013. MotherJones.com. May 23, 2013. http://www.motherjones.com/politics/2013/05/buckhalter-mississippi-stillbirth-manslaughter
Paltrow, Lynn. "Prosecutors, Judges Increasingly Indict Pregnant Women Using “Personhood” Status Rejected By Voters". RH Reality Check. April 5, 2012. RHRealityCheck.org. May 23, 2013. http://rhrealitycheck.org/article/2012/04/05/personhood-measures-in-disguise/