Prosecuting women based on the outcomes of their pregnancies violates their constitutional rights and is cruel and unusual punishment. And yet, this is what is happening.
Bei Bei Shuai is a woman in Indiana who attempted suicide while pregnant. Shuai was saved by friends and three days after a caesarian surgery the newborn died. She was arrested and charged with feticide. She has been in jail for 14 months and faces 45 years in prison. Last week, the Indiana Supreme Court refused to review a Court of Appeals decision, thereby allowing her case to move forward and essentially supporting the idea that the fetal murder and feticide charges against her are applicable to pregnant women Her situation is tragic. But, her case is also a very dangerous precedent, ensuring as it does that girls and women will lose their rights and can be put in jail for miscarriage, drug addiction, accidents, attempted suicides, and for “chemically endangering” their fetuses from the moment of conception. Circumstances like hers are sadly, too frequent. She needs public support. Another woman, Christine Taylor was arrested and imprisoned and charged with "attempted feticide" for falling down stairs under what her doctors thought were questionable circumstances.
Of particular note is that in denying Bei Bei Shuai reprieve from charges, the Indiana Supreme Court upheld a mid-level appellate court ruling that said that laws established to penalize people who hurt pregnant women can actually be used against pregnant women themselves. Hundreds of women around the country* are currently imprisoned under the aegis of "best intentions" laws. What this means is that feticide and fetal murder laws can now be used to charge, imprison and penalize pregnant women at the discretion of legislators and law enforcement officials.
“It means that women can be charged and imprisoned if they engage in any intentional act that law enforcement believes will threaten the life or health of the fertilized eggs, embryos, and fetuses they carry,” explains Emma Kettering of the National Advocates for Pregnant Women.
So, since this is happening, it is only fair to say that once a woman gets pregnant she is a crime scene in waiting. In Arizona, she doesn't even have to be pregnant. How much jail time should she consider when she is expecting?
In the case of Bei Bei Shuai, up to 45 years. What was clearly a sad and gruesome suicide attempt (she took rat poison) resulting from depression and desperate personal circumstances is being turned into murder.
In this environment, and with no confidence that their rights will be respected and protected, pregnant women will continue to be jailed, in ever increasing numbers, in unexpected ways that violate their rights. Fear of imprisonment will result in women compromising their health and the health of their fetuses by avoiding pre-natal care, treatment for addiction and medical help if they fear they are miscarrying. They will have more abortions to avoid penalization.
The creeping expansion of these laws needs to be broadly objected to as a matter of citizenship, rights, law, logic, science and public health. This is particularly true in the case of insidious chemical endangerment laws, which demonstrate as Bei Bei Shua’s case does, the danger of turning health issues into criminal issues.
Chemical endangerment laws in particular ignore actual scientific research regarding fetal development, relying instead on faux moralities, irrational mythologies and deliberate misunderstandings. But, once the laws are established they can be mis-used. And, whereas “chemical endangerment” starts off with illegal substances, like cocaine and meth, among women who need drug treatment programs, not vilification, it is applicable to any chemical threat to a fetus in any woman’s womb. Severe alcohol abuse, although entire legal, can be far more dangerous than illegal drugs, what do we do about that? What about pesticides in your garden? How about BPAs in...everything? What about if a woman works somewhere where she is exposed to toxic substances, say she's a nurse in a hospital? What if she takes medication to regulate an illness? What if she needs chemotherapy? These are all chemically endangering. How long should a woman go to jail? Twelve months for cigarettes? Six for anti-depressants? She has to take them, because if she is depressed enough to attempt suicide and her fetus is lost, she – like Bei Bei Shuai - will go to jail for much longer.
What has come to pass is exactly what anti-abortion activists always denied would happen: namely, that women would lose their rights and be criminalized through pregnancy (*see below). Their strategy has always focused on eliminating abortion and prosecuting abortion providers. But, that strategy is increasingly obsolete. Changing medical technology and options that allow women to bypass doctors in terminating unwanted pregnancies clearly mean that doctors cannot be the target of prosecution and women have to be.
“You pass laws first that say only physicians can perform abortions. Then you pass laws that make it impossible for those physicians to provide abortions. And then women take the steps they need to take as they do all around the world, as they did before Roe," explains Lynn Paltrow, founder of the National Advocates for Pregnant Women, one Bei Bei Shua's legal representatives. "And you create a perfect setup for making literally millions of women subject to arrest for having illegal self abortions.”
This is the only way to achieve their goal - stripping women of their right and ability to control their own reproduction safely and legally. That's what happens when wombs are public property and pregnancy loss is considered murder.
Using laws like the ones used against Bei Bei Shuai and creating fetal pain and chemical endangerment laws ensure that women are penalized for exercising their rights, claiming bodily integrity and assuming they have equal protection under the law. They are criminalized. And criminals are punished when they break laws. What the “pro-family,” “pro-life” movement has successfully done is create dangerous precedents and legal frameworks that penalize women who violate state defined breeding rules.
In pursuing anti-choice, fetal protection policies that erroneously pit a woman’s rights against those of her fetus equally from the moment of conception the “pro-life” movement targets unsympathetic women and manipulates public opinion about what makes women “good mothers.” Women who break laws, use drugs, seem careless and unethical are “bad mothers.” They do this strategically and effectively play on the complexity and nuance implicit in research regarding fetal development, societal ideals that glorify motherhood and public opinion. Women like Bei Bei Shua and others are paying the price for their achieving their goal of voiding Roe v. Wade. Persecuting women by any means necessary is just one component of dismantling women's rights and eliminating abortion.
Consider Mississippi which while it has not technically outlawed abortion, in practice it has, especially for women who cannot afford to leave the state to end their pregnancies.
- Murder in Mississippi includes the unborn. A prosecutor in Mississippi is already trying to use the state's murder law to punish Rennie Gibbs, a teenager who suffered a stillbirth and faces life imprisonment. She was a cocaine user, but there is no evidence of a correlation between her drug use and the stillbirth.
- There is one, at-risk, remaining abortion clinic staffed by people who drive from Alabama.
- Women in Mississippi are prohibited by law upon threat of penalty from performing their own abortions, even with perfectly legal drugs. A doctor has to be involved.
- Doctors in Mississippi who want to perform abortions must have admitting privileges in a local hospital, which legislators – dismissing the coat-hanger concerns of “some African Americans” – boast is near impossible.
- Women in Mississippi who cannot travel because they do not have the financial wherewithal or they have children or parents that they care for, will do what women have always done and find dangerous, not medically sound ways to terminate unwanted pregnancies. This is, of course, illegal.
“But, hey…” if women die using hangers and "home remedies" and go to jail for doing it or miscarry trying, so be it. Mississippi is proud to be the first state to enact compulsory pregnancy for women.
Is this really what American’s want? There is no other conclusion. Pregnant women will all be potential criminals, their bodies considered potential crime scenes. They will deny themselves health care, endanger their lives, harm their bodies, have high-risk pregnancies. Many, many will go to jail.
People need compassion, they need to be educated about how to avoid unwanted pregnancies, they need medical attention, pre-natal care and drug treatment if suffering from addiction. They need access to safe abortions. They need their rights to be respected and protected. They do not need to go to jail.
Forty-seven medical and legal advocacy groups have filed amicus briefs describing their objections to this “disturbing trend.” This isn’t a trend. A trend is something organic and possibly unexpected. This is a planned strategic assault on women and their rights.
Follow Soraya Chemaly on Twitter, @schemaly