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Criminal Miscarriage - New Legislation in Utah

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The Examiner: This week, Utah overwhelmingly passed a bill which declares women criminally liable in some cases of miscarriage. Obviously this is a very sensitive subject, and it is difficult to remain objective when considering the implications. Firstly, let us talk about what this bill is NOT.


* It is not directly worded to prevent abortion, stating specifically that abortion sought legally is not eligible for prosecution under this law
* It is not a "Mormon" law

Utah HB12 amends the term "abortion" under Utah state law to " amending the definition of abortion to relate only to a medical procedure carried out by a physician, or through a substance used under the direction of a physician, with the consent of the woman on whom the abortion is performed..."

There are many states with laws allowing prosecutors to charge perpetrators of assault and other violent crimes against pregnant women with a second crime against the unborn child. Most state laws pertain to the life of a fetus from the start of the third trimester, when there is a viable chance that if the fetus were delivered, it could survive outside the womb. In Arizona, the law protects the fetus at any time during gestation as follows:

"The "unborn child in the womb at any stage of its development" is fully covered by the state's murder and manslaughter statutes. For purposes of establishing the level of punishment, a victim who is "an unborn child shall be treated like a minor who is under twelve years of age." Senate Bill 1052, signed into law on April 25, 2005, amending the following sections of the Arizona Revised Statutes: 13-604, 13-604.01, 13-703, 13-1102, 13-1103, 13-1104, 13-1105, 13-4062, 31-412, 41-1604.11 and 41-1604.13. "

The Utah law is unique in that it allows the mother to be prosecuted under certain circumstances. This bill is the reaction to a 17 year old girl who, in her 7th month of pregnancy, paid a man $150 to beat her to attempt to cause a miscarriage. The child survived and has been adopted. The man involved has been sentenced to jail. The girl was unable to be charged due to the legal boundaries of the time of the incident.

The wording of the bill (just over 3,000 words long) makes it possible to prosecute a woman for seeking an illegal abortion, or knowingly, willfully, and/or recklessly behaving, at the expense of the fetus. Specifically in this bill, reckless behavior would include any activity that is known or thought to cause miscarriage.

So what does all this mean?

Up to 20 weeks of pregnancy, the loss of a pregnancy is considered spontaneous abortion, after 20 weeks the loss is a still birth. Spontaneous abortion can result from many, things. Most spontaneous abortions occur before the woman even is aware she may be pregnant and the rate is as high as 50% in the early first trimester. 30% of these "losses" contained no embryo, the phenomenon was due to an egg that was fertilized, began to implant in the uterus, and ceased to function so that only a gestational sac developed. Of the spontaneous abortions that involve an embryo, at least 50% of these losses are due to chromosome abnormalities which would have prevented the development of the embryo into a viable fetus. There is nothing that can be done to prevent these types of embryo loss and in most cases, it is impossible to determine the cause of the loss.

Lifestyle Factors

For the vast majority of women, exercise, sex, work and most other aspects of life do not need to be altered to prevent miscarriage. The large exceptions are drug use, alcohol and smoking. Other factors, such as caffeine, NSAIDS, a father who smokes, physical or severe emotional trauma and eating disorders have, in some cases, been associated with a higher risk of miscarriage.

Implications Utah HB12

The biggest problem with this bill is the room for so many "what if" situations. There is no clear definitions of what "reckless" entails with this bill. This is a critical definition that has been left to the interpretation of prosecutors. Some of the what if scenarios reported in heated discussions with local Arizonans illustrate this point rather well:

"If we just say "reckless," is that with today's medical knowledge? What if we find out tomorrow using cell phones during pregnancy causes webbed feet?" -- Real Relationships Examiner

"What if a woman who has been jogging for most of her life continues to do so, one foggy morning, and gets hit by a truck and a witness heard the father of the unborn baby warn the mother about the safety of being out in the fog near a road?"

"What if a woman returns to a home with domestic violence and is pushed down the stairs and suffers a miscarriage?"

"Women that go through a natural miscarriage are often faced with emotional challenges and to tell them they will have to prove they didn't do something wrong would be very hard. Does the average person know all the possible causes of miscarriage? Could ignorance be reason enough to punish someone?"

As in the case of an Iowa woman, what if the doctor or nurse takes a statement based in fear (which should have been confidential) and reports you to the police as possibly considering ending your pregnancy?

How then, can it be possible to prosecute a woman for "knowingly and recklessly" causing miscarriage, except in the most extreme circumstances?

It is very easy to get side tracked by emotions, which is completely expected in situations such as this. There are some glaring omissions in the wording of this bill. No sensible person will argue that. The motives of the bill are, quite probably, admirable in light of the attempted abortion by the young woman who spurred this bills inception. It is intolerant and closed minded to attack a religion perceived to have influence over the bill. The haste cannot be allowed to compromise the rights and privacy of women, however.

Be informed, not afraid. If you are a pregnant woman, seek legitimate medical consultation if you are in doubt. Educate your children about pregnancy prevention and sexual health.

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