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.
Even when states do not charge women directly under feticide or murder laws that treat eggs, embryos and fetuses as completely separate persons, prosecutors typically cite these laws as authority for subjecting pregnant women to forced medical interventions and for interpreting generally-worded child endangerment laws, drug delivery laws and other criminal statutes as ones that may be used to arrest pregnant women themselves.
For example, in Alabama, the state Supreme Court recently held  that the commonly understood meaning of the word “child” in Alabama criminal law includes fertilized eggs. The judge who wrote this opinion explained in a separate concurrence with himself that this definition of the word child was consistent with Alabama and other states’ laws that recognize “unborn children as persons,” including specifically, fetal-murder laws. As a result, the state’s chemical endangerment of a child statute, one that was clearly passed only to punish adults who bring children to places like meth labs may be used to punish women who use any amount of any controlled substance (prescribed or unprescribed) while pregnant . So far more than 80 women have been arrested, all of them facing imprisonment on sentences that can range from 1 year and a day to 99 years.
In these kinds of cases, judges, prosecutors and arresting officers describe pregnant women in terms that make the women sound like they are the captors, forcibly holding unborn life in captivity much as Ariel Castro is accused of doing to Michelle Knight, Amanda Berry and Gina DeJesus. In Tennessee, a prosecutor described the fetus as a baby “which will be viable if born but can not escape the uterus.” An Alaska prosecutor described a fetus as being “captured in the womb.” A prosecutor in South Carolina defined the unborn child as a “victim” that was “in essence, held hostage by the defendant for nine months.” And, an Illinois case in which state officials sought to force a woman to undergo cesarean surgery for the benefit of her fetus, the Cook County Public Guardian argued that the fetus is a “real life being kept prisoner in its mother’s womb and tied to an oxygen source that is not working.”
In practice, and regardless of their intent, laws equating pregnancy termination with murder are being used against pregnant women not for them.
In South Carolina, an 18-year-old pregnant woman with a history of mental health issues attempted suicide by jumping out of a building. She survived, despite major injuries, but lost the pregnancy. She was arrested and incarcerated on the charge of “homicide by child abuse.” Rather than face a murder, she pleaded guilty to manslaughter. Women in Indiana and Mississippi who suffered pregnancy losses that the state claims they caused are now awaiting trials for murder.
In order to ensure that women like these are not punished but forced terminations of pregnancy are, states could pass laws that significantly increase the penalties for assaults on women who are pregnant. But proponents of feticide laws have insisted that unless laws acknowledge separately the death of fertilized eggs, embryos and fetuses, justice cannot be achieved. This is one reason why today far more states have laws that enhance penalties for assaults on and causing the death of eggs, embryos and fetuses than laws enhancing penalties for or specifically punishing assaults on or murder of pregnant women. Indeed we live in a country where more state have laws increasing the penalties for assaults on sports officials (umpires and referees) than assaults on pregnant women.
There is absolutely no evidence that prosecuting the death of fertilized eggs as murder has reduced violence against pregnant women or advanced in any way maternal, fetal or child health. In fact, equating pregnancy termination with murder is likely a contributing factor in the US epidemic of violence against women. Jeremy Blanchard, convicted of murdering his girlfriend, explained in an MSNBC interview  that she deserved it because she had ended a pregnancy in which she was carrying his child.
The desire to punish Michelle Knight’s captor for every violent and cruel act including causing her to miscarry is understandable. We need, however, to be very wary of the kind of murder law that may be used for this purpose in this case—but across the country is being used to punish, not protect, pregnant women.
The kidnapped women in Cleveland, sexual assault in the military, the NRA’s “Ex-Girlfriend” bleeding target—do we see a pattern? Leslie Savans says we should, in “The Cleveland Horror and a Week of Violence Against Women .”