Feticide Laws Advance ‘Personhood,’ Punish Pregnant Women

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 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 antichoice agenda which champions personhood and seeks to eliminate safe abortion care access. Pregnant driver via Shutterstock

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.

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.