Tuesday, February 23, 2010

Argument by hysterical fit?

A facebook friend called attention to this post at realitycheck.org: Utah Bill Criminalizes Miscarriage

The bill passed by the Utah legislature would change that. While the bill does not affect legally obtained abortions, it criminalizes any actions taken by women to induce a miscarriage or abortion outside of a doctor's care, with penalties including up to life in prison.
In addition to criminalizing an intentional attempt to induce a miscarriage or abortion, the bill also creates a standard that could make women legally responsible for miscarriages caused by "reckless" behavior.

Using the legal standard of "reckless behavior" all a district attorney needs to show is that a woman behaved in a manner that is thought to cause miscarriage, even if she didn't intend to lose the pregnancy. Drink too much alcohol and have a miscarriage? Under the new law such actions could be cause for prosecution.

Reality Check points to an article in the Salt Lake Tribune.

... The bill responds to a case in which a Vernal woman allegedly paid a man $150 to beat her and cause miscarriage but could not be charged. The Senate on Thursday approved HB12 on a vote of 24-4, criminalizing a woman's "intentional, knowing, or reckless act" leading to a pregnancy's illegal termination. It specifies that a woman cannot be prosecuted for arranging a legal abortion.
Some Senate Democrats attempted a last-minute amendment to remove the word "reckless" from the list of criminal acts leading to miscarriage. They argued that criminalizing reckless acts leaves open the possibility of prosecutions against domestic violence victims who return to their abusers only to be beaten and lose the child.

No mention in the article about drinking similar behavior.

Now, I could imagine someone introducing a bill that would criminalize acts that merely increase the odds of having a miscarriage, but I find it hard to imagine such legislation making it through two houses to the Governor's desk – of any state.

It might be interesting to read the actual text of the bill.

(The zipped file is a Word Perfect document. I knew I liked Utah!)

17     Highlighted Provisions:
18     This bill:
19     .   provides that, for aggravated murder, the aggravating factor of the victim being
20     under the age of 14 years does not apply to the homicide of an unborn child;
21     .   provides that a person is not guilty of criminal homicide of an unborn child if the
22     sole reason for the death of the unborn child is that the person refused to consent to
23     medical treatment or a cesarean section or failed to follow medical advice;
24     .   provides that a woman is not guilty of criminal homicide of her own unborn child if
25     the death of her unborn child:
26     .   is caused by a criminally negligent act of the woman; and
27     .   is not caused by an intentional, knowing, or reckless act of the woman;
28     .   defines terms, including amending the definition of abortion to relate only to a
29     medical procedure carried out by a physician, or through a substance used under
30     the direction of a physician, with the consent of the woman on whom the abortion
31     is performed;
32     .   describes the difference between abortion and criminal homicide of an unborn
33     child;
34     .   removes prohibitions against prosecution of a woman for killing an unborn child or
35     committing criminal homicide of an unborn child;
36     .   clarifies that a woman is not criminally liable for seeking to obtain, or obtaining, an
37     abortion that is permitted by law; and
38     .   makes technical changes.

Given lines 26 and 27, it looks like this law is aimed specifically at actions a woman takes, or causes to be taken, believing they will very likely lead to a miscarriage, without taking the route of a legal abortion administered by qualified medical personnel.

Now, prosecutors are perfectly capable of running amok and overcharging people, but my reading of this summary is that it's not intended to target the woman who has a drink or two, and has a miscarriage later on. It looks like she would have to get absolutely smashed, and the State would have to prove she intended to poison her unborn baby, or acted with reckless disregard of the unborn baby.

Lawyers are welcome to comment.

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