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.’"