Miscarriage Injustice

© Josh Sager – February 2013


Did you know that there are dozens of women who are currently sitting in American jails today for “fetal homicide” or “negligence” charges resulting from miscarriages? It seems amazing to think about, but this unjust persecution of women who have lost children is a very real pattern in some areas of the United States.

In some areas of the country—primarily the south—numerous women have been arrested after giving birth to stillborn children. These women are charged with a variety of offenses, ranging from “fetal homicide” to “criminal negligence” and are threatened with years of jail time.

In a recent study by the Journal of Health Politics, it is reported that over 400 women have been arrested and charged with crimes against fetuses since 1973. Of these women, many are arrested while still pregnant and are detained through a judicial order for the duration of their pregnancy (in an effort to “protect” the fetus). While there is no central compilation of this type of case after 2005 (the end of the study), the National Advocates for Pregnant Women estimates that at least 250 women have been persecuted for this type of “offense” since 2005, indicating that his problem is far from solved.

According to the study, the vast majority (nearly 80%) of “fetal homicide” arrests come after a woman gives birth to a stillborn child and is suspected of having a substance abuse problem; in many cases, the accusation of drug abuse is never proven, yet the women is assumed to have taken drugs and endangered the fetus. Prosecutors make the argument that a fetus is a child and that any activity that compromises the safety of the fetus is criminal and should be punished as harshly as if the fetus was born.

Legally, a fetus is not a person and endangering a fetus is a very murky legal territory. By the reading of the law used by these prosecutors, they allege that the harm caused damage after viability (even if the drugs were allegedly taken before viability), thus they assert that the fetus was actually a person.

Unsurprisingly, the majority of these arrests are of poor, racial minority women who lack the funds or power to successfully face the charges. A minority of the women arrested under these grounds were Caucasians and virtually none were of upper income brackets.

In reality, miscarriages are an unfortunate fact of life and they are often spontaneous—there is no negligence by the mother to cause it. Punishing women for miscarriages—particularly considering the fact that there is no evidence connecting the miscarriage to a specific event—is unfair and serves to punish women for things that they cannot control.

The persecution of women who have miscarriages is a terrible injustice and it illustrates a strain of thought places the life of the mother as subservient to the potential life of the fetus. By attempting to punish women for having a miscarriage, these prosecutors and lawmakers are making their opinions known: they care more about the unborn then women and they have no problem pushing their pro-life agenda even if it victimizes innocent women. If the law sees fetus as a person, it is one step closer to ending abortion rights, which is the true goal of this pattern of persecution.

For as long as this situation flies under the radar, it will continue to lead to the imprisonment of innocent women for something that they have no legal or ethical responsibility for. Everybody should remember that next time, the woman to be caught up in this type of miscarriage of justice could be you, your mother, your sister, or your daughter—unless you make steps to stop this injustice, the next person to be hurt may be somebody that you care for.


My opinion—if you just want the facts of this situation, just stop here, as I am going to rant

This situation, more than any other, illustrates the contempt that many on the right have for women and their rights to control their own bodies. Rather than just trying to shame or coerce women into not having abortions (which is, in itself, disgusting), the men who support this persecution are actually sending women to jail for years in order to push their “pro-life agenda.” Sacrificing these women only serves to promote the idea that the fetus is more important then the woman who carries it and is a travesty.

Miscarriages are tragic, but they are not criminal in any way; they occur spontaneously in nature and punishing women for miscarriages is analogous to punishing somebody for falling down the stairs (actually, several of the 400 women in the study were jailed for falling down the stairs while pregnant). It is plainly absurd that some people feel justified in compounding the tragedy of a woman losing a child with the threat of decades in jail.

If women are legally culpable for indirect actions that may or may not have resulted in their miscarriages, then what about the legal culpability of the politicians who cut pre-natal care funding? Unlike with the possible actions of these women, there are clear links between a lack of healthcare to pregnant women and miscarriages—as politicians are responsible for cuts that stop women from getting healthcare assistance, wouldn’t they be liable for this “fetal homicide” and arrested? No, but this is because they have power.

The issue of power imbalances leading to injustice brings me to another point about this situation: This policy crushes poor and minority women in the gears of our justice system to a disproportionate degree. Personally, I think that no woman should be subjected to this type of persecution, but the fact that is targets the poor and minorities makes it just that little bit more heinous. By promoting a legal disparity between the rich and the poor women, this policy compounds its injustice across not only gender lines, but also economic.

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