Overview of HB1677, "Report of Fetal Death by mother, penalty"

It sounds preposterous to talk about criminalizing women who suffer miscarriages, but one Virginia legislator is proposing just that. HB1677, "Report of Fetal Death by mother, penalty" is a bill introduced by John A. Cosgrove (R) of Chesapeake. Cosgrove's bill requires any woman who experiences "fetal death" without a doctor's assistance to report this to the local law-enforcement agency within twelve hours of the miscarriage. Failure to do so is punishable as a Class 1 Misdemeanor.

Background: Reporting of Fetal Deaths

Almost all states mandate reporting of fetal deaths to vital statistics bureaus. These statistics are then collected nationally by the CDC. In most states, health care providers must provide reports on fetal deaths after 20 weeks gestation (or at a certain fetal weight approximating 20 weeks gestation). Virginia is one of only 7 states, however, that mandate the reporting of loss of all "products of conception" regardless of gestational age. This includes both spontaneous losses of pregnancy and induced terminations of pregnancy, though the required data elements are different for abortions.

In Virginia, all losses of pregnancy must be reported by health care providers according to current law. The reality, though, is that countless women experience spontaneous abortions in the first few gestational weeks without even being aware of pregnancy, so not all losses of "products of conception" are reported. Women who experience miscarriages at home without a doctor's care may not even think to inform their doctors, especially if the pregnancy is so early that they have not yet even sought prenatal care. Until this bill, though, no one has suggested it was in the interest of the Commonwealth of Virginia to track down these unreported losses of "products of conception".

The Bil Itself

Full text of HB1677: When a fetal death occurs without medical attendance, it shall be the woman's responsibility to report the death to the law-enforcement agency in the jurisdiction of which the delivery occurs within 12 hours after the delivery. A violation of this section shall be punishable as a Class 1 misdemeanor.

The Bill: The Most Odious Infringement on the Privacy of Virginia women...ever



Delegate Cosgrove's bill is an outrageous attack on the privacy of Virginia women. Consider this - there is no law mandating that a woman must report a pregnancy to the Commonwealth, or even seek medical treatment for one. But this bill proposes that a woman report a LOSS of a pregnancy to the Commonwealth, whatever the gestational age of the embryo/fetus.

Furthermore, this bill means that a woman who experiences a spontaneous loss of pregnancy will have her privacy violated significantly more than if she had chosen an abortion. Though Virginia requires that induced terminations of pregnancy be reported, those reporting forms require only a "patient number" and information on the procedure. The "report of fetal death" asks for the woman's full name, her history of prenatal care, her marital status, her education history, her previous deliveries (if any), and a number of other very intrusive data items.

If the miscarriage occurred under a physician's care, all of this information would be provided by the physician out of the patient's medical records. Physicians and/or funeral directors are given 24 hours to file this report. Delegate Cosgrove's bill gives women who experience miscarriage without a doctor only 12 hours to report, adding insult to injury.

Practical concerns: an affront to decency

Returning to our original scenario, let's imagine that this bill becomes law. Will the average woman in Virginia who experiences spontaneous loss of pregnancy at home know that she is risking a year in jail if she doesn't report it? (The practical considerations for publicizing such a law are enormous - a Class 1 misdemeanor is a serious crime in Virginia - will the health department create TV ads to inform women of this new law?)

But let's assume, against all probability, that you are aware that there is a law requiring you to report it.

At what point during your first 12 hours of grief at the loss of this pregnancy do you make time to call the cops to report it? Let's say you finally pull yourself together after your partner and best friend arrive to comfort you. You pick up the phone at midnight and call your local police non-emergency number. What do you say? "Hello? Um. I'd like to report that I just had a miscarriage?"

What then? Does the officer on the other end of the phone have a Commonwealth of Virginia Report of Fetal Death form right in front of him or her? Does a squad car with flashing lights arrive at your house to investigate? Is the officer who responds trained to handle your case compassionately and kindly? Let's consider what information you would be required to provide when you comply with the law.

What's in the Commonwealth of Virginia Report of Fetal Death?

Virginia Board of Health regulations specify the required information on the Commonwealth of Virginia Report of Fetal Death. Delegate Cosgrove's bill provides for no modification of this form when women report fetal deaths themselves.

The report requires the following items for spontaneous fetal deaths:



place of occurrence



usual residence of patient (mother)



full maiden name of patient



medical record number and social security number of patient



Hispanic origin, if any, and race of patient



age of patient



education of patient



sex of fetus



patient married to father



previous deliveries to patient



single or plural delivery and order of plural delivery



date of delivery



date of last normal menses and physician's estimate of gestation



weight of fetus in grams



month of pregnancy care began (sic)



number of prenatal visits



when fetus died



congenital malformations, if any



events of labor and delivery



medical history for this pregnancy



other history for this pregnancy



obstetric procedures and method of delivery



autopsy



medical certification of cause of spontaneous fetal death



signature of attending physician or medical examiner including title, address and date signed



method of disposal of fetus



signature and address of funeral director or hospital representative



date received by registrar



registrar's signature



registration area and report numbers.

Remember, Virginia defines "fetal death" regardless of gestational age, and requires reporting of deaths of all "products of conception". At early gestational age of pregnancy, how are you supposed to get some of this information? Are you supposed to find a kitchen scale and weigh the "products of conception" so you can get a report in grams?

I know this is quite ghastly for me to suggest, but these are the practical considerations that occur to me as a woman when I think about the actual implementation of such a bill. Delegate Cosgrove's bill does not change the data elements required when a woman reports a fetal death herself, so the police officer in charge of taking the report would have to ask these questions. I assume that the officer would be understanding if a woman says "I have no idea" for some of the questions, but the ordeal of having to even consider answering some of these - such as guessing the sex of the "products of conception" is nothing short of barbaric.

Of course I'm assuming that this would all happen over the phone. But what if some police departments in Virginia decided that the report would have to be taken in person? Would a squad car then appear in front of the woman's home? She'd then have to face the curious stares and questions of her neighbors, yet another gross violation of privacy. Would she be required to produce the "products of conception" for the police officer's inspection? Again, I know this is gory, but I've been present when a friend miscarried in early pregnancy. I know what early "products of conception" may look like. And I am outraged that some man in Chesapeake would come along and try to pass a law that says I or any other Virginia woman who experiences miscarriage at home might have to weigh them so I can include this information in the report in the first 12 hours after miscarriage or face a year in jail.

Does the punishment fit the "crime"?



Suffering a miscarriage is no crime, but Delegate Cosgrove wants to make it a crime for a woman to fail to violate her own privacy in the first 12 hours after a miscarriage, so let's look at his proposed penalty.

Cosgrove's bill says, "A violation of this section shall be punishable as a Class 1 misdemeanor."

Let's see. What other crimes are punishable as Class 1 misdemeanors in Virginia? A cursory Google search reveals just a few...



A person 18 years of age or older engaging in consensual intercourse with a child 15 or older not his spouse, child or grandchild (more commonly known as "statutory rape")



burning or destroying a building or structure if the property therein is valued at less than $200 (arson)



a bomb threat made by someone younger than 15



carrying a concealed weapon while under the influence of drugs or alcohol



possession or distribution of fraudulent drivers' licenses or official identification



stalking



threatening any public school employee while on a school bus, on school property, or at a school-sponsored activity



purchasing or providing alcohol to minors

So Delegate Cosgrove is basically saying that failing to violate your own privacy within 12 hours of a miscarriage is the criminal equivalent of statutory rape, arson, stalking, and other serious crimes.

The authorized punishments for convictions for a Class 1 misdemeanor in Virginia are "confinement in jail for not more than 12 months and a fine of not more than $2500, either or both." Do women deserve this?

In what way would the Commonwealth of Virginia benefit from this bill?



I have no idea. Most other states don't even bother collecting data for spontaneous loss of pregnancy before 20 weeks gestation. The CDC does not process this data along with other state data on fetal death. The health care providers I have spoken to see no benefit, since reporting the loss of products of conception to law enforcement authorities provides no benefit to medical science.

Three days ago, I wrote what I consider to be a restrained and respectful email to Delegate Cosgrove asking for his rationale on the necessity of this bill. I have not yet heard a response from him or his office.

What I have learned, through initial research, is that the legislative agenda of numerous anti-abortion groups includes increased reporting of fetal deaths and issuance of death certificates for miscarriages. The point is to advance the legal recognition of "personhood" for all "products of conception".



In the 2003 legislative session in Virginia, a law was passed allowing parents to request a "birth certificate" for a stillbirth, a law that is clearly in line with the agenda of anti-abortion extremists to recognize embryonic and fetal personhood. The fact that Virginia is one of the few states that requires reporting of deaths of all "products of conception" regardless of gestational age plays in to this anti-abortion agenda.

Though there is no practical benefit to the Commonwealth in collecting this information from women - in fact, there would be considerable burden placed on local law enforcement agencies.

This bill places the advancement of the cause of recognizing legal "personhood" for all products of conception far above the concerns of the Commonwealth and of the dignity of individual women whose privacy would be violated.

If you find this bill as offensive as I do, what can you do now? A few ideas...

If you live in Virginia, join me in asking Delegate Cosgrove how his bill will benefit the people of the Commonwealth.

If you live in Virginia, write to your Delegate and State Senator to express your views on this bill and demand that they oppose it.





Contact the Democratic candidates for Lieutenant Governor in Virginia and let them know that you will expect them to oppose this bill and will consider this in your voting decision in the primary.





If you participate in online communities for women, please spread the word about this bill. I believe that most women, regardless of position on the issue of reproductive freedom, will be offended by this bill. I know many avowedly pro-life women who have experienced miscarriages and who would be horrified by the intrusion of the state in the first 12 hours following this tragedy. This is a perfect opportunity to reach out to a "netroots" beyond the Democratic netroots -- there are many online support groups for mothers, women who have experienced miscarriages, women experiencing fertility problems, etc, that may be appropriate to contact about this bill. I welcome any ideas you have about how we can spread the word.





No one ran against John Cosgrove in the 78th District in 2003. If you live in or near this district, please try to find someone to stand against him this year!





If you live in or near this district, please try to find someone to stand against him this year! If you live in Virginia and want to keep watch over bills in this legislative session, please join the Democracy for Virginia Legislative Sentry email list. This listserv was created this week to serve as a tool for collecting and disseminating information on bills for the upcoming Virginia legislative session. HB1677 is only one of dozens of very dangerous bills, and progressive activists in Virginia must get the word out about this proposed legislation among allied grassroots groups, organizations, and like-minded citizens. If you want to keep watch along with other volunteer "sentries", please sign up!

Since the 100-member Virginia House of Delegates is dominated by over 60 Republicans, it will take a wide public awareness campaign to defeat this bill. It has become too easy for the Republicans in the Virginia legislature to sneak through bills like this one, and the most potent weapon available for defeating this bill is awareness. Only a widespread public condemnation of this bill will stop it from becoming the law of the Commonwealth.

Update [2005-1-6 23:2:14 by Maura in VA]: Rep. Cosgrove has written an email reply to a Kossack who wrote and called him a "troglodyte". Interestingly, he still has not responded to my original email, though I never called him a troglodyte. (I was thinking it, though.) Here's what he has said is his rationale for the law:

"This bill, which was requested by the Chesapeake Police Department, is an attempt to reduce the number of "trashcan" babies that are born and then abandoned in trashcans, toilets, or elsewhere to die from exposure or worse. There are numerous examples of these tragic deaths in Virginia, many in Northern Virginia and also in Hampton Roads. Once the body of a child is found, if the death of that child is undetermined by a coroner, the person abandoning that child can only be charged with "the improper disposal of a human body".



That is the intent of the bill. I normally do not answer abusive and condescending emails. Please try to ask questions of people as you would have questions asked of you. You know.....kind of like the Golden Rule."

He didn't write a bill about deaths of infants, though. He wrote a bill about "fetal death", which is defined by Virginia as covering all products of conception, regardless of gestational age. So if this honestly was his intention, he's written a bill misses the mark. By far.