Utah Bill Criminalizes Miscarriage

Rachel Larris

A bill passed this week by the Utah State Legislature and awaiting the governor's signature, will criminalize miscarriages and abortions under certain circumstances and send women to jail.

A bill passed by the Utah House and Senate this
week
and waiting for the governor’s signature, will make it a crime for a woman to have a miscarriage, and make induced abortion a crime in some instances.

According Lynn M. Paltrow, executive director of National
Advocates for Pregnant Women, what makes Utah’s proposed law unique is that it
is specifically designed to be punitive toward pregnant women, not those who might assist or cause an illegal abortion or unintended miscarriage.

The bill passed by legislators amends Utah’s criminal
statute to allow the state to charge a woman with criminal homicide for inducing a miscarriage or obtaining an illegal abortion. The
basis for the law was a recent case in which a 17-year-old girl, who was seven
months pregnant, paid a man
$150 to beat her
in an attempt to cause a miscarriage. Although the girl
gave birth to a baby later given up for adoption, she was
initially charged with attempted murder. However the charges were dropped because,
at the time, under Utah state law a woman could not be prosecuted for
attempting to arrange an abortion, lawful or unlawful.

The bill passed by the Utah legislature would change that. While
the bill does not affect legally obtained abortions, it criminalizes any actions
taken by women to induce a miscarriage or abortion outside of a doctor’s care,
with penalties including up to life in prison.

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"What is really radical and different about this statute is
that all of the other states’ feticide laws are directed to third party
attackers," Paltrow explained. "[Other states’ feticide laws] were passed in
response to a pregnant woman who has been beaten up by a husband or boyfriend.
Utah’s law is directed to the woman herself and that’s what makes it different
and dangerous."

In addition to criminalizing an intentional attempt to
induce a miscarriage or abortion, the bill also creates a standard that could
make women legally responsible for miscarriages caused by "reckless" behavior.  

Using the legal standard of "reckless behavior" all a district
attorney needs to show is that a woman behaved in a manner that is thought to
cause miscarriage, even if she didn’t intend to lose the pregnancy. Drink too
much alcohol and have a miscarriage? Under the new law such actions could be cause for prosecution.

"This creates a law that makes any pregnant woman who has a
miscarriage potentially criminally liable for murder," says Missy Bird,
executive director of Planned Parenthood Action Fund of Utah. Bird says there are
no exemptions in the bill for victims of domestic violence or for those who are
substance abusers. The standard is so broad, Bird says, "there nothing in the
bill to exempt a woman for not wearing her seatbelt who got into a car
accident."

Such a standard could even make falling down stairs a
prosecutable event, such as the recent case in Iowa where a pregnant woman who
fell down the stairs at her home was arrested under the suspicion she was trying to terminate
her pregnancy.

"This statute and the standards chosen leave a large number
of pregnant women vulnerable to arrest even though they have no intention of
ending a pregnancy," Paltrow said. "Whether or not the legislature intended
this bill to become a tool for policing and punishing all pregnant women, if
enacted this law would permit prosecution of a pregnant woman who stayed with
her abusive husband because she was unable to leave. Not leaving would, under
the ‘reckless’ standard, constitute conduct that consciously disregarded a
substantial risk," Paltrow explained.

While many states have fetal homicide laws most apply only
in the third trimester. Utah’s bill would
apply throughout the entirety of a woman’s pregnancy. Even first trimester
miscarriages could become the basis for a murder trial.

Bird said she is also concerned that the law will drive pregnant
women with substance abuse problems "underground;" afraid to seek treatment
lest they have a miscarriage and be charged for murder. She said it directly
reverses the attempts made, though a bill passed in 2008, to encourage pregnant
women to seek treatment for addiction.

Paltrow added that the commonly thought belief that pregnant
women who use drugs are engaging in behavior that is likely to cause a stillbirth
or a miscarriage is wrong.

"Science now makes clear that drug use by pregnant women
does not create unique risks for pregnant women, although it is likely that
among those targeted for prosecutions by this statute will be women who go to
term under drug usage," she said.

The bill does exempt from prosecution fetal deaths due to failure
to follow medical advice, accept treatment or refuse a cesarean section. Bird said
this exemption was likely because of a 2004 case where a woman who was
pregnant with twins was later charged with criminal homicide after one
of the babies was stillborn, which the state deemed due to her refusal
to have a cesarean section.

Planned Parenthood and the ACLU of Utah worked together to "amend
the hell out of the bill," Bird said. One of their few accomplishments was at
least dropping the legal standard of "negligence" from the bill, a much lower
standard than "recklessness."

Bird was shaken with emotion after the Senate vote. "I broke
down and cried," she admitted. "I normally never let these kind of [legislative]
battles get to me."

"What really sucks is that we had three supposed allies in
the Senate, three [Democratic] women, who voted for the bill," Bird said,
adding she didn’t yet know why the three senators switched votes.

Marina Lowe is legislative and policy counsel for the ACLU
of Utah. She worked in tandem with Bird on trying to derail or at least
mitigate the worst aspects of the bill. Lowe says at this point she doesn’t
know if there is a potential constitutional challenge to the law once it is
signed by the governor.

But she points to cases like the one in Iowa as exactly the
kind of situation that might arise once this law is put into place.

Paltrow says this bill puts a lie to the idea that the
pro-life movement cares about women.

"For all these years the anti-choice movement has said ‘we
want to outlaw abortion, not put women in jail, but what this law says is ‘no,
we really want to put women in jail.’"

News Law and Policy

Pastors Fight Illinois’ Ban on ‘Gay Conversion Therapy’

Imani Gandy

Illinois is one of a handful of states that ban so-called gay conversion therapy. Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans.

A group of pastors filed a lawsuit last week arguing an Illinois law that bans mental health providers from engaging in so-called gay conversion therapy unconstitutionally infringes on rights to free speech and freedom of religion.

The Illinois legislature passed the Youth Mental Health Protection Act, which went into effect on January 1. The measure bans mental health providers from engaging in sexual orientation change efforts or so-called conversion therapy with a minor.

The pastors in their lawsuit argue the enactment of the law means they are “deprived of the right to further minister to those who seek their help.”

While the pastors do not qualify as mental health providers since they are neither licensed counselors nor social workers, the pastors allege that they may be liable for consumer fraud under Section 25 of the law, which states that “no person or entity” may advertise or otherwise offer “conversion therapy” services “in a manner that represents homosexuality as a mental disease, disorder, or illness.”

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The pastors’ lawsuit seeks an order from a federal court in Illinois exempting pastoral counseling from the law. The pastors believe that “the law should not apply to pastoral counseling which informs counselees that homosexuality conduct is a sin and disorder from God’s plan for humanity,” according to a press release issued by the pastors’ attorneys.

Illinois is one of a handful of states that ban gay “conversion therapy.” Lawmakers in four states—California, Oregon, Vermont, and New Jersey—along with Washington, D.C. have passed such bans. None have been struck down as unconstitutional. The Supreme Court this year declined to take up a case challenging New Jersey’s “gay conversion therapy” ban on First Amendment grounds.

The pastors say the Illinois law is different. The complaint alleges that the Illinois statute is broader than those like it in other states because the prohibitions in the law is not limited to licensed counselors, but also apply to “any person or entity in the conduct of any trade or commerce,” which they claim affects clergy.

The pastors allege that the law is not limited to counseling minors but “prohibits offering such counseling services to any person, regardless of age.”

Aside from demanding protection for their own rights, the group of pastors asked the court for an order “protecting the rights of counselees in their congregations and others to receive pastoral counseling and teaching on the matters of homosexuality.”

“We are most concerned about young people who are seeking the right to choose their own identity,” the pastors’ attorney, John W. Mauck, said in a statement.

“This is an essential human right. However, this law undermines the dignity and integrity of those who choose a different path for their lives than politicians and activists prefer,” he continued.

“Gay conversion therapy” bans have gained traction after Leelah Alcorn, a transgender teenager, committed suicide following her experience with so-called conversion therapy.

Before taking her own life, Alcorn posted on Reddit that her parents had refused her request to transition to a woman.

“The[y] would only let me see biased Christian therapists, who instead of listening to my feelings would try to change me into a straight male who loved God, and I would cry after every session because I felt like it was hopeless and there was no way I would ever become a girl,” she wrote of her experience with conversion therapy.

The American Psychological Association, along with a coalition of health advocacy groups including the American Academy of Pediatrics, the American Counseling Association, and the National Association of Social Workers, have condemned “gay conversion therapy” as potentially harmful to young people “because they present the view that the sexual orientation of lesbian, gay and bisexual youth is a mental illness or disorder, and they often frame the inability to change one’s sexual orientation as a personal and moral failure.”

The White House in 2015 took a stance against so-called conversion therapy for LGBTQ youth.

Attorneys for the State of Illinois have not yet responded to the pastors’ lawsuit.

Roundups Law and Policy

Gavel Drop: The Fight Over Voter ID Laws Heats Up in the Courts

Jessica Mason Pieklo & Imani Gandy

Texas and North Carolina both have cases that could bring the constitutionality of Voter ID laws back before the U.S. Supreme Court as soon as this term.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts

Texas Attorney General Ken Paxton intends to ask the U.S. Supreme Court to reinstate the state’s voter ID law.

Meanwhile, according to Politifact, North Carolina attorney general and gubernatorial challenger Roy Cooper is actually saving taxpayers money by refusing to appeal the Fourth Circuit’s ruling on the state’s voter ID law, so Gov. Pat McCrory (R) should stop complaining about it.

And in other North Carolina news, Ian Millhiser writes that the state has hired high-powered conservative attorney Paul Clement to defend its indefensible voter ID law.

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Alex Thompson writes in Vice that the Zika virus is about to hit states with the most restrictive abortion laws in the United States, including Alabama, Louisiana, Mississippi, and Texas. So if you’re pregnant, stay away. No one has yet offered advice for those pregnant people who can’t leave Zika-prone areas.

Robin Marty writes on Care2 about Americans United for Life’s (AUL) latest Mad Lib-style model bill, the “National Abortion Data Reporting Law.” Attacking abortion rights: It’s what AUL does.

The Washington Post profiled Cecile Richards, president of the Planned Parenthood Federation of America. Given this Congress, that will likely spur another round of hearings. (It did get a response from Richards herself.)

Kimberly Strawbridge Robinson writes in Bloomberg BNA that Stanford Law Professor Pamela Karlan thinks the Supreme Court’s clarification of the undue burden standard in Whole Woman’s Health v. Hellerstedt will have ramifications for voting rights cases.

This must-read New York Times piece reminds us that we still have a long way to go in accommodating breastfeeding parents on the job.

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