Commentary Abortion

Miscarriage-as-Murder Bill Center of GOP War on Women

Amie Newman

Rep. Bobby Franklin (R-Marietta, GA) of "rape victims aren't victims" and, now, miscarriage is "prenatal murder" infamy, is not simply a "Lone Ranger," as some call him. He's exactly what happens when we allow a GOP full-scale war on women, girls and families to get this far.

Sigh. This is what happens when you find someone who’s earned an undergraduate degree in both “Biblical studies” and “Business Administration,” have him run for state representative unopposed in 2010 (although he’s been part of the Georgia House of Representatives since 1996) and then allow him to revel in a nation-wide political assault on women, led by the Republican party, of which he’s a member.

Rep. Bobby Franklin (R-Marietta) of “rape victims should be classified as accusers and not victims” fame – or the “Lone Ranger” as he’s been called and has taken to calling himself – has most recently introduced a bill to criminalize miscarriages, renaming the process “prenatal murder.” Oh, they say, no. It’s only miscarriages where the cause cannot be determined – not all miscarriages. Well, folks, that’s most miscarriages.

Here’s the thing: you’ll need, as others more witty than I have deemed them, a team of Uterus Police Officers – to suss this out as a crime.

Ask my midwife why I miscarried with my second pregnancy. What was the cause? The cause was my body behaving as the female human body will sometimes behave. What do you mean – what’s the cause?! Was there human involvement in the causation of the event? Of course my body was “involved in the cause of the event.” If the female body itself is criminalized – something this bill would do – we may as well throw all girls and women on an island somewhere far away and let us fend for ourselves in all of our evil glory. Sadly, that does not sound so horrible at this point and time.

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HB 1 creates a new legal classification for pregnancy termination – “Prenatal Murder,”

‘Prenatal murder’ means the intentional removal of a fetus from a woman with an intention other than to produce a live birth or to remove a dead fetus; provided, however, that if a physician makes a medically justified effort to save the lives of both the mother and the fetus and the fetus does not survive, such action shall not be prenatal murder. Such term does not include a naturally occurring expulsion of a fetus known medically as a ‘spontaneous abortion’ and popularly as a ‘miscarriage’ so long as there is no human involvement whatsoever in the causation of such event.   (c) The act of prenatal murder is contrary to the health and well-being of the citizens of  this state and to the state itself and is illegal in this state in all instances.   (d) Any person committing prenatal murder in this state shall be guilty of a felony and,  upon conviction, shall be punished as provided in subsection (d) of Code Section 16-5-1.  The license of any physician indicted for an alleged violation of this Code section shall be    suspended until resolution of the matter. The license of any physician convicted of a   violation of this Code section shall be permanently revoked. The provisions of this Code  section shall be in addition to any other provisions relating to the killing of a fetus or any other person.”

I have it on good authority that even those who work in the political arena think he’s crazy; that he does not represent the state of Georgia. But just who is he representing and how did he get this far? Franklin may be seen as a rogue representative but he’s far from it. Representative Bobby Franklin is empowered by the current state of extreme agenda-setting by the GOP. Instead of focusing on the health and lives and current well-being of Americans – especially the millions of Americans who seem to be living in an increasingly separate state, those who are uninsured or underinsured in terms of health coverage, those who are unemployed or underemployed, those who are living near, at or below the poverty line, women, people of color and children – Republicans are intent upon ripping away any shred of assistance owed to these citizens, as much as governmental safety net programs, paid for by our taxes, are owed to us all.

Franklin’s horrifying bill is not out of left field in the least, if you’ve been following the constant legislative pummeling on the “other” Americans. House GOP leaders proposed a budget which places the health and lives of the rest of us in danger. From cutting billions in aid to programs like Women, Infant, Children (WIC) which helps pay for milk, formula, food and diapers to defunding our nation’s only federal program, Title X, which provides for critical preventative care like Pap tests, breast exams, STI checks, HIV tests and more, to cutting millions in foreign aid to PEPFAR, our global AIDS prevention program, which helps prevent mother-to-child HIV transmission among other things, we’re watching a crisis of principles play out in front of our eyes.

Women’s health advocates may be the warriors out in front of this battle but if we allow the GOP to do what they’re doing, it may end up being a victory for all of us “other” Americans. Are they not digging their own graves at this point? Rep. Michele Bachmann is “taking a stance” against families being able to use their own pre-tax dollars to cover breastfeeding pumps, making quite the couragous stand against First Lady Michelle Obama’s work to combat the obesity epidemic and the CDC’s goals to increase breastfeeding rates for the health and lives of our mothers and babies.

Rep. Bobby Franklin may not be taken seriously by his colleagues but his proposal to criminalize miscarriage must be seen as relevant to the broader assault – not just on women and women’s bodies. This is an assault on freedom and justice. It’s an assault on all Americans who understand that there is a difference between making a personal decision not to do something with which you disagree and legislating inhumanity and injustice. The introduction of this bill must be viewed as the center of the current storm. When the GOP creates a climate of absolute antipathy for humankind, displayed in their assault particularly on women’s health and lives, bills like this are born.

Analysis Law and Policy

Indiana Court of Appeals Tosses Patel Feticide Conviction, Still Defers to Junk Science

Jessica Mason Pieklo

The Indiana Court of Appeals ruled patients cannot be prosecuted for self-inducing an abortion under the feticide statute, but left open the possibility other criminal charges could apply.

The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.

As Rewire previously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”

To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”

According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.

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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.

“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.

This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.

Shuai was held in prison for a year until a plea agreement was reached in her case.

The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.

A Class D felony conviction in Indiana carries with it a sentence of six months to three years.

To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.

According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”

Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.

That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.

In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.

The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.

But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.

Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.

Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.

Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.

The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.

Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?

Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.

News Politics

Former Klan Leader on Senate Run: My Views Are Now the ‘GOP Mainstream’

Teddy Wilson

David Duke has been a fervent support of the Trump campaign, and has posted dozens of messages in support of Trump on Twitter. Duke has often used the hashtag #TrumpWasRight.

David Duke, convicted felon, white supremacist, and former leader of the Ku Klux Klan, announced Friday that he will run for U.S. Senate in Louisiana, Roll Call reported.

Duke said that after a “great outpouring of overwhelming support,” he will campaign for the open Senate seat vacated by former Republican Sen. David Vitter, who lost a bid for Louisiana governor in a runoff election.

Duke’s announcement comes the day after Donald Trump accepted the GOP nomination in the midst of growing tensions over race relations across the country. Trump has been criticized during the campaign for his rhetoric, which, his critics say, mainstreams white nationalism and provokes anxiety and fear among students of color.

His statements about crime and immigration, particularly about immigrants from Mexico and predominantly Muslim countries, have been interpreted by outlets such as the New York Times as speaking to some white supporters’ “deeper and more elaborate bigotry.”

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Duke said in his campaign announcement that he was the first candidate to promote the policy of “America first,” echoing a line from Trump’s nomination acceptance speech on Thursday night.

“The most important difference between our plan and that of our opponents, is that our plan will put America First,” Trump said Thursday night. “As long as we are led by politicians who will not put America First, then we can be assured that other nations will not treat America with respect.”

Duke said his platform has become “the GOP mainstream” and claimed credit for propelling Republicans to control of Congress in 2010. He said he is “overjoyed to see Donald Trump … embrace most of the issues I’ve championed for years.”

Trump in February declined to disavow the support of a white supremacist group and Duke, saying he knew “nothing about David Duke” and knew “nothing about white supremacists.” He later clarified that he rejected their support, and blamed his initial failure to disavow Duke on a “bad earpiece.”

Trump’s candidacy has also brought to light brought many incidents of anti-Semitism, much of which has been directed at journalists and commentators covering the presidential campaign.

Conservative commentator Ben Shapiro wrote in the National Review that Trump’s nomination has “drawn anti-Semites from the woodwork,” and that the Republican nominee has been willing to “channel the support of anti-Semites to his own ends.”

Duke took to Twitter after Trump’s acceptance speech Thursday to express his support for the Republican nominee’s vision for America.

“Great Trump Speech, America First! Stop Wars! Defeat the Corrupt elites! Protect our Borders!, Fair Trade! Couldn’t have said it better!” Duke tweeted.

Duke has been a fervent Trump supporter, and has posted dozens of messages in support of Trump on Twitter. Duke has often used the hashtag #TrumpWasRight.

Duke was elected to the Louisiana house in 1989, serving one term. Duke was the Republican nominee for governor in 1991, and was defeated by Democrat Edwin Edwards.

Duke, who plead guilty in 2002 to mail fraud and tax fraud, has served a year in federal prison.