One thing I've learned as a crime/court reporter over the years is the Legislature shouldn't give prosecutors a power that they don't want them to use. For example, if you don't want prosecutors to file felony sex-crime charges against a 13-year-old pregnant girl and a 12-year-old boy who knocked her up, then don't write laws that allow them to do so. No matter how absurd (pdf) the application of the law may be, some prosecutor, some where, at some time, will probably do it.
So a young pregnant Vernal gal asks her guy friend to beat her up to induce a miscarraige. Yikes. No one likes that, and it really happened (it's surely happened more than we know). Perhaps the solution is to discourage this behavior by putting a criminal penalty on it? Hell no, is the resounding answer coming from women's group's nationwide and here locally. The opponents of Rep. Carl Wimmer's HB 12 don't support such rag-tag abortions, but they're afraid it will allow for too many absurd--and tragic--opportunities for prosecutors.
Planned Parenthood Action Council lobbysit Missy Bird says this bill allows for the criminal investigation of any woman who had a miscarriage. Wimmer's bill, if it becomes law (and apparently it probably will--more on that in a bit), would criminalize women who intentionally rag-tag abort their baby like the gal in Vernal, but it also criminalizes women who "recklessly [or] knowingly" caused their fetuses's death. That's where the trouble starts.
"It's not just about the young woman in Vernal, it's that a prosecutor could investigate any incident of miscarriage. So, if, you know, you've got a nosy neighbor seeing a woman drinking a dark substance that looks like wine, or a woman who's running while pregnant because she's an avid runner, if they have a miscarriage, the neighbor can call police and say, 'I know why she miscarried.'"
And the then investigation ensues, at least potentially. Do lawmakers understand that by a two-thirds majority in both the House and Senate they have done much more than criminalize rag-tag abortions: they've given police and prosecutors the power--duty?--to investigate miscarriages? Is a battered and pregnant woman who does not leave her husband recklessly putting her unborn fetus in jeopardy? That will be for prosecutors first, and juries second, to decide.
"We're talking about prosecuting [at least investigating] women who want these babies but have gone through the devestating loss of miscarraige," Bird says.
The bill passed both the House and Senate by two-thirds majority so Gov. Gary Herbert doesn't even have to sign the thing (see clarification below) and it'll become law. The only chance that it won't is if Herbert, a Republican in his first election for Governor, vetoes it. I wouldn't hold my breath.
This bill started out quietly in Utah. When it first came up in the House Health and Human Services Committee January 26, only ACLU-Utah spoke against it. Not even Bird testified against it, leading some to believe ACLU's hectoring was just "a tempest in a teacup." Why didn't Bird oppose it then?
"The thing that's disturbing about that comment [tempest in a teacup] ... is strategically, if we had spoken against it, it would have moved that much faster," she says. "Because we're Planned Parenthood."
Bird says she worked quietly behind the scenes to exempt legal abortion services from Wimmer's bill.
For more on the potential applications of Wimmer's bill to women with miscarriages, watch yesterday's Democracy Now!
Update 2:16 p.m., 3-4-10: Lesson in government: it's not because the bill was passed by two thirds in both the House and Senate that Herbert can choose to not sign the bill. He can choose to not sign any bill. But because it was passed by two-thirds in both houses, a veto is less likely because it takes only two thirds to override the veto. Someone--me--needs to return to School House Rock for finishing school.
Update 3:53 p.m., 3-4-10: Gov. Gary Herbert, despite my pessimism, is asking for changes to the bill.
Update 8:40 a.m., 3-5-10: Wimmer has submitted a new bill, HB462, which is remarkably similar to HB 12 except it contains a provision that says "A woman is not guilty of criminal homicide of her own unborn child if the death of her unborn child is caused by a criminally negligent act or reckless act of the woman; and is not caused by an intentional or knowing act of the woman." This doesn't seem to remove the possibility that mere miscarriages will have to be investigated to determine whether the mother acted intentionally or knowingly. Again, does a women who remains with her abusive husband whose violence kills her fetus act knowingly? I repeat, that will be for prosecutors to decide first, and juries to decide second.