Recently, anti-abortion activists have claimed unequivocal opposition to punishment for women who have abortions. Meanwhile, Purvi Patel, an Indiana woman who sought to have a safe home abortion with medication, has already spent more than a year behind bars. Indiana does not have a law that criminalizes people who have or seek to have an abortion. What Indiana does have is a feticide law. No one should be surprised that this law, passed under the guise of protecting pregnant women from violence, is now being used to punish pregnant women.
Here is how it works.
First, anti-abortion groups draft feticide laws declaring that -- for the purposes of homicide and assault offenses -- a "person" includes an unborn child at every stage of gestation from conception until live birth.
Next, they wait until someone commits a horrific act of violence against a pregnant woman and introduce the legislation. Feticide law supporters claim that the law will ensure justice for the loss of fetal life and protect pregnant women against violence.
With rare exception, these efforts succeed. Thirty-eight states and the federal government now have feticide, unborn victims of violence laws, or expanded murder laws that define the "unborn" as a person from the moment of fertilization.
Once the law is in place, it is only a matter of time before a prosecutor uses the law as a basis for arresting or otherwise punishing a pregnant woman or new mother, not protecting her
How do prosecutors justify this? They argue that it is hypocritical and unfair to treat fetuses as persons when attacked by third parties but not when they are harmed (or are at risk of being harmed) by the pregnant woman herself.
These steps from the now well-worn feticide playbook have been employed repeatedly, and often with success.
This is exactly what has happened in Patel's case. Indiana's feticide law was a response to a case in which a bank robber shot a bank teller who was pregnant with twins. The law was presented as a means of preventing and punishing third-party violence against pregnant women. The law does not use the word abortion nor warn that a pregnant woman herself could be punished under the law. Yet, in the Patel case, Indiana argues that the purpose of the state's feticide law is to protect fetal life; therefore everyone, including the pregnant woman herself, should be subject to punishment.
Women in California, Mississippi, Oklahoma and other states who have experienced stillbirths have also been arrested under feticide laws. In Utah, a woman gave birth to twins, one was stillborn. She was arrested under Utah's feticide law because the stillbirth was blamed on her decision to delay having cesarean surgery.
Prosecutors in other states have successfully used the state's feticide law and its protection of the unborn to provide the legal precedent for using other criminal laws to punish pregnant women. For example, the South Carolina Supreme Court agreed with prosecutors in concluding that it would be "absurd" to treat fetuses as persons in one aspect of the state's law (feticide) and not others (its child endangerment laws). As a result, women in South Carolina have been arrested for being pregnant and drinking alcohol, for experiencing stillbirths, and even attempting suicide
In Alabama, State Supreme Court Justice Tom Parker outlined the feticide playbook in detail. In a decision that has resulted in the arrest of more than 400 pregnant women and new mothers, Justice Parker explained that treating fetuses as separate persons in one context (such as the state's feticide law) but not in another context (when a pregnant woman herself is accused of risking or causing harm to her "unborn child") violates the principle of "non-contradiction." In other words, he claimed it was contradictory to treat a man who brutalizes a pregnant woman differently from a pregnant woman who has an abortion or in any way risks harm to her own pregnancy.
Pregnant women have been arrested even in states where the feticide law clearly explains that it may not be used to punish the woman herself. While courts in some of these states have eventually rejected this feticide bait-and-switch, this is small comfort to women who have spent months or years in jail as their cases worked their way through the criminal court system.
Finally, no pregnant woman is protected from the message that feticide laws send.
According to feticide laws, any acts that risk or actually harm fertilized eggs, embryos or fetuses constitute criminal acts that carry severe criminal penalties.
As a result, the laws effectively define women who have abortions, experience miscarriages, and stillbirths, or who disagree with a doctor's advice about cesarean delivery as criminals. Such women are stigmatized by these laws, painted as people who commit murder and get away with it.
Lawmakers, prosecutors, and judges need to throw out the feticide playbook. Respect for pregnant women requires rejection of new feticide laws and repeal of any that directly or indirectly provide the basis for punishing pregnant women.