We’re often asked if personhood would REALLY lead to investigations of women for having miscarriages, or alternately accused of “scare tactics” for discussing the possibility. A recent blog post from Personhood USA is representative:
This pro-abortion propaganda is clearly false because when abortion was illegal in the US, women weren’t investigated for miscarriages. Why? Because sadly the tragedy of miscarriage is common and therefore doesn’t provide reasonable suspicion of a crime
The first claim, that women weren’t investigated for miscarriages when abortion was illegal, is both misleading and inaccurate. It ignores the reality that, as pointed out by Americans United for Life, pre-Roe abortion law focused on prohibiting the act of abortion, rather than on using existing homicide statutes. Laws were specifically written to target the person performing the abortion, and often explicitly excluded pregnant women from prosecution. However, broadening existing homicide law to include embryos and fetuses rather than passing separate laws to regulate or prohibit abortion per se is the whole point of the personhood movement.
The case highlighted in Personhood USA’s post actually demonstrates the opposite of their claim that personhood would not require investigation of miscarriage. The reprehensible situation at issue here involves a Florida man who gave his girlfriend an abortion pill, pretending it was an “antibiotic”, and she subsequently had a miscarriage. John Welden pled guilty to product tampering and mail fraud, rather than to a fetal homicide charge prosecutors feared would be difficult to prove. The judge is currently working to decide how severe the corresponding sentence should be, since there is no scientific way to determine conclusively whether this particular miscarriage was directly caused by the medication, or if Ms. Lee was simply a coincidental part of the 20% of women who suffer early pregnancy loss.
Personhood USA claims that the judge’s indecision in this case demonstrates that miscarriage is so common that it of course would not be investigated, but in reality it proves the point. After all, here is a miscarriage which was then investigated to determine whether a crime occurred. There is suspicion in this case beyond the simple fact of the pregnancy loss, but it’s still an investigation, and it’s irrelevant whether the potential guilty party is the pregnant woman or another person. If personhood were to pass, other miscarriages might likewise give rise to suspicion that trigger law enforcement involvement.
Let’s flip the case around a little bit and suppose personhood were in effect. Ms. Lee has a spontaneous miscarriage which sends her to the hospital. Mr. Welden, who is unhappy with the relationship, tells the doctor that Ms. Lee was upset about the unplanned pregnancy, and that he heard her talking to a friend about “wanting to get rid of it”. At that point, if abortion is covered by the murder statutes, there is no way to avoid a legal investigation.
The doctor is a mandated reporter, who is required by law to contact the police and tell them there is reason to suspect a crime may have occurred, and to preserve evidence. The doctor would be obligated to preserve fetal tissue to see if there were a natural genetic anomaly that could explain the miscarriage. He would take blood samples in order to test for hormonal problems and to see whether Ms. Lee had taken misoprostol. He’d be obligated to perform another intrusive exam to see if there were pill residue from vaginal administration of Cytotec or physical evidence to show if she’d undergone an illegal D&C. The police would question Mr. Welden about what he heard, and Ms. Lee about the circumstances of the pregnancy and miscarriage. Ms. Lee’s medical records would be given to the police.
All that would occur on nothing more than Mr. Welden’s statement, and it would happen even if the miscarriage were ultimately determined to be spontaneous.The police can’t simply choose not to open an case, any more than they could ignore it if a person told them he’d overheard a widow talk about murdering her husband. They have no choice but to investigate and give the evidence to a prosecutor to determine whether charges should be brought. They might decide in the end that it’s ridiculously unfounded, but if they have a witness report of a potential crime, they have to take it seriously. After all, the Welden investigation was triggered by Ms. Lee’s witness report, and it would work just the same way if the two parties were reversed.
Nobody is claiming that personhood would require police investigations for every single miscarriage, just like police don’t get involved when elderly or sick people die in their sleep However, any questionable circumstances would definitely lead to investigations of SOME miscarriages. Since abortion often looks just like miscarriage, there’s no way to detect and prosecute illegal abortion without also investigating unusual miscarriages.
That’s why personhood laws in El Salvador result in hundreds of women being unjustly reported or imprisoned for having miscarriages. If Personhood USA wants to praise El Salvador’s personhood law and hold it up as a model for America, they’re going to have to explain why Americans wouldn’t suffer the same treatment as Salvadorans.
Personhood USA openly advocates prosecuting women who “take a pill or seek out a service like abortion that would kill their child”. If they really want those women to be prosecuted, there’s simply no way to do so without investigating miscarriages to determine which ones are spontaneous pregnancy losses and which ones are illegal abortions.