Monday, May 16, 2022
May 16, 2022, by Cynthia Soohoo and Dana Sussman (originally published by Jurist Commentary, May 14, 2022 ):
Last week, Louisiana made headlines by proposing a bill that would make abortion a homicide and explicitly allow pregnant people to be charged with murder. While the bill ultimately failed to advance in the Louisiana House of Representatives, it’s important to know that many states already have laws on the books that could result in charging healthcare workers with murder if Roe v. Wade is overturned and states make abortion illegal in all or most cases. That’s because several states have provisions in their criminal codes that define victims of homicide to include unborn children. For instance, Arkansas’ criminal code defines a person for purposes of its homicide statutes to include “an unborn child in utero at any stage of development.” But statutory language like Louisiana’s explicitly creating a new category of criminal–the pregnant person–is relatively new.
Research done by National Advocates for Pregnant Women and the Human Rights and Gender Justice Clinic at CUNY Law School shows that over 20 states allow murder charges to be brought for causing the death of an unborn child. Most of these states have explicit exceptions for acts committed by pregnant people, and many shield abortions that are performed with the consent of the pregnant person. However, laws in Arkansas, Indiana, Oklahoma, Tennessee and Texas only provide exceptions for lawful abortions or medical procedures. That means if those states make abortions illegal, anyone who performs an abortion could be charged not only with performing an illegal abortion but also murder.
In addition to the states that treat causing the death of an unborn child as murder, approximately 18 states create the distinct crimes of feticide or “murder of an unborn child.” Some of those laws also only provide exceptions for healthcare providers who perform lawful abortions or medical procedures.
When these laws were passed redefining homicide victims, many were championed as a way to protect pregnant people from violence by another person that results in pregnancy loss, but defining homicide victims to include the unborn must be understood as an insidious attempt at normalizing the concept of “fetal personhood.” So perhaps it is not surprising that overzealous prosecutors have brought murder and feticide charges for abortions even in cases where the prosecution is not authorized by the statute. Most homicide and feticide laws explicitly preclude charging pregnant people for actions that lead to pregnancy loss. Yet, recently, in Texas, a prosecutor got a grand jury to indict Lizelle Herrera for murder allegedly based on a self-managed abortion, even though Texas’ penal code specifically prohibits murder charges for conduct committed by a pregnant person. While that charge was dropped after local activists sparked a national outcry, these types of prosecutions are not unusual. In 2015, an Indiana judge sentenced Purvi Patel to 20 years in prison under a feticide law, which does not apply to the pregnant person. After years of appeals while Ms. Patel remained incarcerated, Ms. Patel’s feticide conviction was overturned by Indiana’s highest court in 2016.
The broad scope of protection for the unborn also creates risks for the provision of other healthcare. Many of these criminal laws define the unborn who can be victims of homicide or feticide starting at fertilization. This could impact IVF treatment and forms of contraception that prevent a fertilized egg from implanting in the womb. While several states limit victims of homicide and feticide crimes to unborn children “in utero” or in the womb, not all do. Because of this, Arkansas, Texas, West Virginia, and Kentucky have created explicit exceptions in their homicide and feticide laws for medical procedures involved in assisted reproduction. Some states like Kansas have exceptions for lawful dispensation or administration of a prescribed medicine, which could provide protection for providing contraception. But not all states have these exceptions.
As we see states like Louisiana introduce legislation that would explicitly authorize prosecuting people who have abortions for murder, from our work and research, we know two things to be true. One: there are already laws on the books that would authorize murder prosecutions for health care providers if abortion is made illegal. Two: based on experience, prosecutors will not feel limited by the plain language of statutes, particularly with respect to carve-outs or exemptions that limit their power to prosecute pregnant people. However, Louisiana’s law signals a new overt, full-throated hostility towards people who chose to end their pregnancies. In a post-Roe world, legislatures will not be afraid to rewrite their laws so that they explicitly criminalize pregnant people. The implications of this are vast and terrifying.
Cynthia Soohoo is a Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law.
Dana Sussman is the Deputy Executive Director at National Advocates for Pregnant Women.