A “Welcome Home” sign is posted at a restaurant near a crime scene where Gina DeJesus, Amanda Berry and Michelle Knight were held captive for a decade in Cleveland. AP Photo/David Duprey.
Michelle Knight, one of the three women kidnapped, raped and imprisoned in Cleveland reported that she had repeatedly miscarried pregnancies as a result of her captor’s abuse. In response, Ohio prosecutors announced that they are considering bringing aggravated murder charges against Ariel Castro for the “unlawful termination” of Knight’s pregnancies. The fact that prosecutors across the country are using the same kind of fetal murder laws as the basis for arresting pregnant women themselves requires us to consider some uncomfortable questions.
What if on the day Knight was freed, she had been found to have attempted suicide while pregnant and then had miscarried? If the case had happened in Indiana, the state’s murder and attempted feticide laws would be applicable to her. In Indiana, Bei Bei Shuai currently faces a trial on such charges because she attempted suicide while pregnant and suffered the loss of her newborn. What if any of the women held in the Cleveland horror house had found ways to perform self-abortions to prevent giving birth to children in those conditions? Under some states’ fetal murder laws, these would be unlawful abortions that are not necessarily exempt from prosecution. Utah law specifically defines such intentional acts as murder. And what if any one of these three women had admitted that while pregnant she had used painkillers found in the house to numb the pain of her terrifying ordeal? Whether or not such drugs caused a pregnancy loss, prosecutors in dozens of states have argued, sometimes successfully, that state laws treating the death of fertilized eggs, embryos and fetuses as murder provide the basis for arresting and imprisoning such women for a decade or more.
Today, the federal government, Ohio and thirty-seven other states have feticide and murder laws that treat the death of fetuses as homicide. While many states started out passing “feticide” laws, they are now more likely to expand their existing homicide laws, redefining “persons” to include fertilized eggs, embryos and fetuses as entirely separate subjects of the crime of murder. Virtually all such laws were adopted in the wake of an assault on a pregnant woman. Some followed incidents involving negligent or drunk drivers who killed a pregnant woman. Many more followed violent attacks on pregnant women that featured brutality similar to that inflicted on Michelle Knight.
According to their proponents, these laws do not conflict with pregnant women’s rights, particularly her right to choose abortion, and instead they offer protection from violence to pregnant women and their unborn children.
That’s the theory. The reality is another matter.
While the violent incidents used to generate public support for these laws are very individual, the organizations that draft and lobby for them are very political. Indeed, it is clear that passing laws that treat fertilized eggs, embryos and fetuses as completely legally separate from the pregnant woman is part of a long term strategy to overturn Roe v. Wade. For example, in a 1983 piece “Restricting Abortion Through Legislation,” Lynn D. Wardle, a pro-life strategist, identified enacting legislation “to extend the maximum permissible protection for the unborn” as one way that state legislatures could contribute to overturning Roe.
Once passed, these laws not only define fertilized eggs, embryos and fetuses as legal entities entirely separate from the pregnant woman, they also equate pregnancy termination with the most heinous and unforgivable of crimes: murder.
Almost all of these laws prohibit punishment for abortions, but only lawful abortions. A growing number of state laws, however, define a wide range of abortions as unlawful. In a recent Idaho case, which challenged laws that could be used to arrest a woman who ended her own pregnancy, the state Attorney General argued that all “self-abortions” are unlawful and the state may arrest pregnant women for having them. Only some states’ fetal murder statutes, like Ohio’s, specify that the law may not be used to punish women in relationship to their own pregnancies.
The research my colleague Jeanne Flavin and I published earlier this year in the Journal of Health Politics, Policy and Law found that when pregnancy termination is equated with murder, homicide and feticide laws—including those with explicit exceptions for the pregnant woman—will be used to justify the arrests and detentions of pregnant women themselves. We identified more than 600 cases since 1973 in which a woman’s pregnancy was a factor leading to her arrest, detention or being subject to a forced medical intervention. In a separate analysis in American Journal of Public Health, I found that prosecutors in at least eighteen states have used their existing murder and feticide laws as a basis for arresting and prosecuting pregnant women who had abortions, or who suffered miscarriages, stillbirths or neonatal losses.