Mississippi Could Start Prosecuting Women for Stillbirths, Miscarriages

The Mississippi Supreme Court is currently considering a case which could lead to the prosecution of women who suffer miscarriages and stillbirths, according to Mother Jones.

In 2009, Nina Buckhalter gave birth to a stillborn girl (whom she named Hayley Jade) following the use of methamphetamine during her pregnancy. Two months later, a grand jury in Lamar Country, Mississippi, indicted her for manslaughter, claiming that she “did willfully, unlawfully, feloniously, kill Hayley Jade Buckhalter, a human being, by culpable negligence”. The prosecution claimed that the methamphetamine found in Buckhalter’s system caused the death of her unborn child.

The Mississippi Supreme Court, which heard oral arguments on April 2, is expected to rule soon.

Should the judges permit the prosecution to move forward, it will likely create a “dangerous precedent” that could lead to the treatment of every unintentional pregnancy “as a form of homicide”, says Farah Diaz-Tello, a staff attorney with National Advocates for Pregnant Women (NAPW) who has joined Robert McDuff, a Mississippi civil rights lawyer, in defending Buckhalter.

Despite the fact that Mississippi manslaughter laws do not apply to fetal stillbirth and miscarriage, and that lawmakers there has repeatedly refused to amend them to include damage to an unborn fetus by illegal drug use, prosecutors have stated that two other state laws allow them to charge Buckhalter. If they are allowed to continue, Mississippi women could be prosecuted for “smoking, drinking alcohol, using drugs, exercising against doctor’s orders, or failing to follow advice regarding conditions such as obesity or hypertension”, according to Buckhalter’s attorneys.

Supreme Court Justice Leslie D. King raised a similar question during last month’s oral arguments asking prosecutors “Doctors say women should avoid herbal tea, things like unpasteurized cheese, lunch meats. Exactly what are the boundaries?”

The case has already caught the attention of several national medical, legal and public health organizations. The American Medical Women’s Association (AMWA) filed an Amicus brief with the Mississippi Supreme Court on their behalf in opposition to an indictment of Buckhalter.

“A conviction here could create far-reaching bad legal precedent that brands as potential criminals any woman who suffers a lost pregnancy, thus endangering the health and well-being of Mississippi women”, the AMWA said.

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Mississippi is one of the most anti-abortion states in the US. Despite the defeat of a ballot measure to introduce a “personhood” amendment to the state constitution in 2011 by a wide margin (58% percent of voters opposed it), anti-abortion organizations have stated that they intend to reintroduce the measure in 2015 while lawmakers continue in their attempts to shut down the one remaining abortion clinic in the state.

Nor is Mississippi alone in such tactics. Neighboring Alabama recently created a similar precedent by extending its law prohibiting the “chemical endangerment” of children to include fetuses while in Virginia, Sen. Mark Obenshain, introduced a bill in 2009 requiring women to report their miscarriages to the police, according to the Huffington Post.

In addition, 38 other states have “fetal homicide” laws which are supposed to protect fetuses but in reality are used to criminalize women who experience unintentional pregnancy loss, according to Salon.

Ironically, should the court allow Buckhalter to be prosecuted, it may lead to more abortion. Buckhalter’s attorneys argued that fear of prosecution “may cause a mother to seek an abortion that she might not have otherwise have sought”.