Analysis Law and Policy

Feticide Laws Advance ‘Personhood,’ Punish Pregnant Women

Imani Gandy

When viewed as part of this ”fetus first” landscape, fetal homicide laws quite plainly seek to exploit tragedies like that suffered by Heather Surovik in order to pursue an anti-choice agenda, which champions so-called personhood and seeks to eliminate safe abortion care access.

When a drunk driver slammed into Heather Surovik’s car in July 2012, Heather and her mother were badly injured but survived. Heather was due to give birth in just a few days to a boy she’d already named Brady, but he died at birth from injuries sustained in the crash.

The drunk driver faced numerous charges for the accident—vehicular assault, leaving the scene of an accident, and driving under the influence—but did not face any charges for Brady’s death.

Colorado law provides that defendants can be convicted for specified offenses against pregnant victims if those defendants knew or reasonably should have known that the victim was pregnant. Colorado law also requires that a baby be born and take a breath before it can be considered a “person.” Neither circumstance applied to the Surovik tragedy, however. “They had told us he has this charge, this charge, this charge and that there was no charge for Brady,” Surovik explained to KOAA.com.

In response to this tragedy, a law named in Brady’s memory will be one of the ballot measures considered by Colorado voters this year. The Brady Amendment is a measure being couched as a fetal homicide statute, and would require “person” and “child” in the Colorado Criminal Code and the Colorado Wrongful Death Act to include “unborn human beings.” It would punish the killing of a fetus in circumstances similar to what happened to Brady and Heather Surovik. It would also, however, introduce the legal status of “personhood” into law in a state where voters have twice rejected ballot measures to establish just such status.

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Fetal homicide laws are common in the United States, with 38 states now reporting such statutes on their books. Frequently, the laws are introduced in the wake of an incident like the accident that killed Brady Surovik, or the killing of Laci Peterson who, at seven-and-a-half-months pregnant, was brutally murdered by her husband Scott.

These laws differ significantly between states. According to the National Conference of State Legislatures, 23 of the 38 states that have passed fetal homicide laws apply those laws to the earliest stages of pregnancy. In some states like California, existing homicide statutes have been amended to include fetuses as possible victims. Other states have enacted statutes defining a fetus as a “person” or “human being,” thus making applicable penalties for harm to a born person equally applicable to a fetus. Others have followed in the footsteps of Congress—which, in the wake of Laci Peterson’s murder, passed the Unborn Victims of Violence Act—and have enacted statutes to penalize a new crime of “injury to a fetus.” And still other states provide that pregnant women and families of victims can sue offenders for wrongful death.

Many such feticide laws are not, as drafted, incompatible with a woman’s choice to terminate a pregnancy. Indeed, the majority of states that have passed feticide laws expressly exempt abortion and do not punish a pregnant woman’s actions. As such, these laws have, in the past, been welcomed by pro-choice activists who view them as consistent with protecting a mother’s relationship with a wanted pregnancy.

Farah Diaz-Tello, staff attorney at National Advocates for Pregnant Women (NAPW), regards such views as naive, however. “It’s really optimistic or overly generous to think that the laws as created are not intended to create ‘personhood,’” she told Rewire. “I think that the Brady Amendment is one of the laws that makes that the most clear, and that’s only because we have the conservative smoking gun; and that’s the admission that yes, this is a ‘personhood’ law.”

“This is part of a concerted effort to create ‘personhood’ in as many places in the law as possible,” she added.

The rush to establish “personhood” and the enthusiasm for protecting fetuses above all else has perverted the stated purpose of fetal homicide laws. Once intended to protect fetuses and provide to pregnant women and their families a legal remedy for wrongful death, fetal homicide laws are being misused by overzealous prosecutors and judges to trample women’s rights in favor of the nebulous personhood rights of fertilized eggs, embryos, and fetuses. These nebulous personhood rights even include the right of a fetus to be free from any potential harm in utero. Accordingly, women who engage in stigmatized behavior—like drug or alcohol use—are finding themselves incarcerated and arrested, charged under fetal homicide laws that were specifically not intended to criminalize their behavior or punish them.

“A prosecutor on a mission can change the law just by charging until it sticks, and hoping that the court will engage in judicial activism and allow laws that explicitly say that they won’t be used against pregnant women to be used against pregnant women,” explained Diaz-Tello. Indeed, a recent study by NAPW Executive Director Lynn Paltrow and Jeanne Flavin, a sociology professor at Fordham University, found 413 cases in which laws intended to protect fetuses have been used to arrest, prosecute, and detain women, or to force them to submit to medical intervention.

Tragic cases like that of Bei Bei Shuai, whose attempted suicide resulted in the death of her newborn daughter, illustrate the point.

Shuai was charged under Indiana’s feticide statute, despite the fact that at the time of her death her daughter Angel was not a fetus, and Indiana’s feticide statute was not intended to criminalize the behavior of pregnant women. Even though Shuai’s daughter was born and lived for several days before dying, attorneys for the State of Indiana proceeded with the case anyway, with a stamp of approval from the state judge who refused to dismiss the charges against Shuai. (Shuai eventually plead guilty to criminal recklessness.)

This perversion of laws intended to protect the rights of women and children extends beyond the fetal homicide context; criminal laws are being used to establish separate legal rights for eggs, embryos, and fetuses even in cases where state legislatures did not intend such a result.

In Alabama, for instance, a judge contorted a chemical endangerment statute to affirm the conviction of Amanda Kimbrough even though the statute under which Kimbrough was prosecuted criminalized exposing a child to controlled substances and was specifically not intended to address the behavior of pregnant women or to apply to fetuses in utero. The judge in Kimbrough’s case ignored the plain language of the statute, as well as the legislature’s repeated failure to amend the existing statute so that it would apply to drug use by pregnant women, and cemented the prosecution’s efforts to expand the law beyond what it was intended to cover.

In a stunning display of judicial activism in Ohio, a state judge used quasi-“personhood” language in the Criminal Code to allow prosecutors to move forward with a case charging Astasia Clemons with “corrupting another with drugs,” even though the law specifically excluded pregnant women from the class of individuals who can be prosecuted under the law. The judge in Clemons’ case reasoned that “another” could also mean “person,” and that “person” could be defined as “an unborn human who is viable.” Inexplicably, the judge ignored that in enacting the law, the legislature expressly exempted pregnant women from prosecution.

These are but two of myriad examples throughout the country of prosecutors and judges going well beyond what a particular law allows and criminalizing pregnant women, stripping women of the right to decide how their pregnancy should proceed, and using draconian tactics against grief-stricken women in the wake of bad pregnancy outcomes.

In some states, efforts to criminalize the behavior of pregnant women and prioritize the rights of the “unborn” over the rights of women are more blatant and far more insidious. In Wisconsin, for example, Alicia Beltran is being involuntarily detained under a statute that, under certain circumstances, gives courts “original jurisdiction over fertilized eggs, embryos, and pregnant women at all stages of pregnancy where the pregnant woman ‘habitually lacks self-control’ in the use of alcohol or controlled substances.” Such approaches demonstrate a woeful lack of understanding about drug addiction and prenatal and maternal health, but underscore concerns that when it comes to pregnancy, the trend seems to be to do whatever it takes to protect the “unborn child” at every stage of development, even at the expense of the woman carrying it.

When viewed as part of this “fetus first” landscape, fetal homicide laws quite plainly seek to exploit tragedies like that suffered by Heather Surovik in order to pursue an anti-choice agenda, which champions “personhood” and seeks to eliminate safe abortion care access.

After the Surovik tragedy, Colorado state Rep. Janak Joshi (R-Colorado Springs) sponsored HB 1130, a bill proposed in 2012 that would have created a new class of crime victim: “an unborn member of the species Homo sapiens.” Rep. Joshi touted the legislation as being about victim’s rights and protecting pregnant women. State Rep. Cherylin Peniston (D-Westminster), on the other hand, expressed concerns that Joshi’s bill was a naked attempt to circumvent the will of the people and impose “personhood” on Colorado. The bill failed.

A short time later, state Rep. Mark Waller (R-Colorado Springs) introduced the Crimes Against an Unborn Child Act, an abortion-neutral bipartisan effort to establish the crime of fetal homicide. The policy would have brought justice to women like Heather Surovik without establishing “personhood.” Nevertheless, Colorado Right to Life and National Right to Life, along with Surovik herself, opposed the bill because of a single line:

Nothing in this article … shall be construed to confer the status of ‘person’ upon the human embryo, fetus, or unborn child at any stage of development prior to life birth.

The bill failed.

The fierce opposition of Right to Life groups to the Crimes Against Unborn Child Act is damning evidence that the true purpose of HB 1130 and similar fetal homicide laws is to punish pregnant women and establish “personhood,” and not to punish drunk drivers or violent offenders who cause the death of an infant.

The Brady Amendment, spearheaded by Surovik and backed by Personhood USA, followed soon after Rep. Waller’s failed effort, and laid to rest any doubts that these sorts of laws are simply about victim’s rights and protecting women. “The Brady Amendment is a good example of a law being couched as a feticide law but which is outwardly being touted as a ‘personhood’ law,” said Diaz-Tello of NAPW.

“This is an effort to spread ‘personhood’ in so many states that by the time Roe v. Wade is considered, the right to abortion will be seen as an anomaly,” she added.

That Colorado rejected “personhood” measures in 2008 and 2010 may provide some comfort to those in Colorado who oppose the 2014 measure. Still, the zeal for such legislation has not been dampened, nor have anti-choice efforts to restrict abortion out of existence. As such, any legislation touted by anti-choice advocates as “protecting women” should be examined closely for alternative consequences that actually harm women.

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.

News Abortion

Texas Pro-Choice Advocates Push Back Against State’s Anti-Choice Pamphlet

Teddy Wilson

The “A Woman’s Right to Know” pamphlet, published by the state, has not been updated since 2003. The pamphlet includes the medically dubious link between abortion care and breast cancer, among other medical inaccuracies common in anti-choice literature.

Reproductive rights advocates are calling for changes to information forced on pregnant people seeking abortion services, thanks to a Texas mandate.

Texas lawmakers passed the Texas Woman’s Right to Know Act in 2003, which requires abortion providers to inform pregnant people of the medical risks associated with abortion care, as well as the probable gestational age of the fetus and the medical risks of carrying a pregnancy to term.

The “A Woman’s Right to Know” pamphlet, published by the state, has not been updated or revised since it was first made public in 2003. The pamphlet includes the medically dubious link between abortion care and breast cancer, among other medical inaccuracies common in anti-choice literature. 

The Texas Department of State Health Services (DSHS) in June published a revised draft version of the pamphlet. The draft version of “A Woman’s Right to Know” was published online, and proposed revisions are available for public comment until Friday.

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John Seago, spokesperson for the anti-choice Texas Right to Life, told KUT that the pamphlet was created so pregnant people have accurate information before they consent to receiving abortion care.

“This is a booklet that’s not going to be put in the hands of experts, it’s not going to be put in the hands of OB-GYNs or scientists–it’s going to be put in the hands of women who will range in education, will range in background, and we want this booklet to be user-friendly enough that anyone can read this booklet and be informed,” he said.

Reproductive rights advocates charge that the information in the pamphlet presented an anti-abortion bias and includes factually incorrect information.

More than 34 percent of the information found in the previous version of the state’s “A Woman’s Right to Know” pamphlet was medically inaccurate, according to a study by a Rutgers University research team.

State lawmakers and activists held a press conference Wednesday outside the DSHS offices in Austin and delivered nearly 5,000 Texans’ comments to the agency.  

Kryston Skinner, an organizer with the Texas Equal Access Fund, spoke during the press conference about her experience having an abortion in Texas, and how the state-mandated pamphlet made her feel stigmatized.

Skinner told Rewire that the pamphlet “causes fear” in pregnant people who are unaware that the pamphlet is rife with misinformation. “It’s obviously a deterrent,” Skinner said. “There is no other reason for the state to force a medical professional to provide misinformation to their patients.”

State Rep. Donna Howard (D-Austin) said in a statement that the pamphlet is the “latest shameful example” of Texas lawmakers playing politics with reproductive health care. “As a former registered nurse, I find it outrageous that the state requires health professionals to provide misleading and coercive information to patients,” Howard said.

Howard, vice chair of the Texas House Women’s Health Caucus, vowed to propose legislation that would rid the booklet of its many inaccuracies if DSHS fails to take the thousands of comments into account, according to the Austin Chronicle

Lawmakers in several states have passed laws mandating that states provide written materials to pregnant people seeking abortion services. These so-called informed consent laws often require that the material include inaccurate or misleading information pushed by legislators and organizations that oppose legal abortion care. 

The American Congress of Obstetricians and Gynecologists (ACOG) sent a letter to DSHS that said the organization has “significant concerns with some of the material and how it is presented.”

Among the most controversial statements made in the pamphlet is the claim that “doctors and scientists are actively studying the complex biology of breast cancer to understand whether abortion may affect the risk of breast cancer.”

Texas Right to Life said in a statement that the organization wants the DSHS include “stronger language” about the supposed correlation between abortion and breast cancer. The organization wants the pamphlet to explicitly cite “the numerous studies that indicate undergoing an elective abortion contributes to the incidence of breast cancer in women.”

Rep. Sarah Davis (R-West University Place) said in a statement that the state should provide the “most accurate science available” to pregnant people seeking an abortion. “As a breast cancer survivor, I am disappointed that DSHS has published revisions to the ‘A Woman’s Right to Know’ booklet that remain scientifically and medically inaccurate,” Davis said.

The link between abortion and cancer has been repeatedly debunked by scientific research.

“Scientific research studies have not found a cause-and-effect relationship between abortion and breast cancer,” according to the American Cancer Society.

A report by the National Cancer Institute explains, “having an abortion or miscarriage does not increase a woman’s subsequent risk of developing breast cancer.”

DSHS spokesperson Carrie Williams told the Texas Tribune that the original booklet was written by a group of agency officials, legislators and public health and medical professionals.

“We carefully considered medical and scientific information when updating the draft booklet,” Williams said.