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Univ. of San Diego School of Law

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Tuesday, September 11, 2012

Beety on Criminalization of Acts by Pregnant Women

Beety valenaValena Elizabeth Beety  (West Virginia University - College of Law) has posted Mississippi Initiative 26: Personhood and the Criminalization of Intentional and Unintentional Acts by Pregnant Women (Mississippi Law Journal, Vol. 81, p. 55, 2011) on SSRN. Here is the abstract:

The intent of Initiative 26 is to criminalize abortion in the State of Mississippi by defining life — and rights of citizenship — as beginning at fertilization. Other possible outcomes include criminal charges against pregnant women accused of harming fetuses and increases in the prison population from newly incarcerated women. Such a trend is already observable in Alabama. There the state prosecutes pregnant women who test positive for drugs while at the hospital, even if they are giving birth to apparently healthy newborns.



Initiative 26, however, will not grant the state permission to pursue such prosecutions. In Mississippi, the state currently does not have the authority to prosecute a pregnant woman for actions, intentional or unintentional, that are harmful to her unborn child. If Initiative 26 passes, the state still will not have the direct authority to criminally prosecute a mother for harm to the fetus, because the initiative only changes the definition of person within the limited scope of the Mississippi Bill of Rights. The definition of person for all other statutes, including statutes defining crimes, will not be altered.

Notably, this lack of authority for criminal prosecutions may be of little significance. The State of Mississippi is currently prosecuting pregnant women for unintentional, harmful acts toward a fetus, with or without any statutory basis. Already, the courts are challenged with determining whether the state may prosecute pregnant women on behalf of the unborn child. Initiative 26 only heightens the possible statutory confusion. Ultimately, politics may influence the end result more than a strict interpretation of the law. In the cautionary words of National Advocates for Pregnant Women on the potential impact of Initiative 26: “Never before have rights been given to a new class of people while taking away the rights of others.” If the rules of statutory interpretation are carelessly disregarded, that day may indeed come. 

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