Underplayed Story of the Day

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Writing law from anecdotes is generally a bad idea. Today, we see why in a story buried on page A16 of the New York Times. After a heinous episode in which a 17-year-old girl who was seven months pregnant paid a man to beat her in hopes of inducing a miscarriage, Governor Gary Herbert is trying to decide whether to sign into a law a bill, passed by both houses of the legislature, that would make it a crime to seek an illegal abortion.

The potential implications of such a law are enormous:

The bill’s sponsor, Representative Carl D. Wimmer, a Republican and former police officer from the suburbs of Salt Lake City, said the beating case, and the decision by a judge last fall that the girl had committed no crime because seeking an abortion is not illegal, revealed “a loophole” in the law.

“A woman going out to seek any way to kill her unborn child, no matter how heinous or brutal, couldn’t be held liable,” Mr. Wimmer said.

But critics say legislation inspired by an unusual, perhaps even freakish criminal case, could open up a vast frontier around the question of intent and responsibility and give local prosecutors huge new powers to inquire about a woman’s intentions toward her unborn child.

For example, if a pregnant woman gets into a vehicle, goes on a wild ride way over the speed limit without wearing a seatbelt and crashes and the fetus is killed, is she a reckless driver? Or is she a reckless mother-to-be who criminally ignored the safety of her fetus?

Under the bill, a woman guilty of criminal homicide of her fetus could be punished by up to life in prison.

“So many things can happen, and it’s all in the eye of the beholder — that’s what’s very dangerous about this legislation,” said Marina Lowe, the legislative and policy counsel to the American Civil Liberties Union of Utah, which has urged Mr. Herbert to veto the bill.

Some women’s advocacy groups say the bill simply codifies what many states are already doing, using existing laws about the unborn to prosecute apparently errant mothers.

Just last month in Iowa, for example, a pregnant woman who fell down the stairs at home confided to emergency workers that she was not sure she really wanted to have her child. Though the woman did not immediately miscarry from the fall, she was arrested anyway under a state law that makes it a criminal act to harm a fetus. She was released after two days in jail, and the charges were dropped.

At least 38 states have laws against fetal homicide, generally intended to create additional penalties when a pregnant woman is assaulted or killed. And two states, Delaware and New York, also have laws specifically making self-abortion a crime. Both laws were passed before the United States Supreme Court decision in Roe v. Wade.

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