The Utah Senate recently approved a measure aimed at punishing women who arrange intentional miscarriages. The overly broad bill authorized homicide charges against expectant mothers who miscarry as a result of an "intentional, knowing, or reckless act." Under current law, the standard of "recklessness" connotes a situation in which an actor does not intend to cause harm but chooses to disregard a reasonably foreseeable risk. As many bloggers have shrewdly noted , the inclusion of such a minimal mens rea requirement means that women who indulge in an occasional glass of wine, trip on the stairs, or reunite with an abusive spouse may be charged with murder. Given that nearly one out of every five recognized pregnancies ends in miscarriage, manipulative partners could easily use this law to threaten women with a criminal investigation if the relationship turns bad.
While this scenario is deeply troubling, there is another, more perverse consequence of Utah Rep. Carl Wimmer’s carelessly worded bill. As Michelle Goldberg wrote yesterday , in socially conservative countries like Nicaragua where all abortions are illegal, doctors cannot offer pregnant cancer patients chemotherapy out of concern for the fetus. Under Utah’s new law, a pregnant woman diagnosed with cancer in her second or third trimester who consents to receive chemotherapy could be liable for murder if she miscarries. Any woman convicted of this crime-"criminal homicide of an unborn child"-faces a penalty of up to life in prison.
Utah lawmakers were careful to grant immunity to women who refuse medical treatment or fail to follow a physician’s advice, but the drafters did not carve out an exception for women who elect to undergo treatment. By heeding an oncologist’s recommendation to receive therapies that imperil the health of a developing fetus, a cancer victim can now be convicted of murder and face a maximum of life in prison.
Some may argue that this absurd situation is a mere thought experiment meant to stave off anti-choice legislation, as no politically ambitious prosecutor would ever pursue such a case. This is irrelevant. It is no moral failing to risk miscarriage in order to battle a deadly illness like cancer, and any provision so poorly constructed as to permit such a prosecution must not be signed into law.
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