‘But she was 30+ weeks?’ A response


If the aim of criminalising women for behaviour while pregnant (aka foetal homicide laws) is to protect foetuses and children, as this blog shows, they clearly they fail!

‘But she was 30+ weeks?’    A response from Dr Emma Milne.

With permission from Emma we are reproducing her  thread responding to the tragic case of a woman self-aborting, and why criminalisation of abortion is neither preventative, nor a solution for women. 

This thread follows the sentencing of a vulnerable mother of three for self-miscarrying at 30+ weeks. Her case has been widely shocking.

Why would a woman do this? Is a criminal justice framework the most appropriate way to respond to her situation? to understand more, you can watch Dr Emma Milne and Dr Shonagh Dillon in conversation at #WPUKReproductiveRights:

People seem to assume that saying “a woman shouldn’t be criminalised for ending her pregnancy” is the same as saying “it’s ok to have a late-term abortion or kill a baby”. These two statements are not the same & advocating for the first does not mean you believe the second.

Decriminalising abortion does not mean deregulation of abortion. It does not mean that doctors and nurses will be performing abortions for women at any point in their pregnancy. The medical community is regulated, and we trust that regulation for all other types of medicine.

For example, we trust them to work out who should get an organ transplant and how that should be done. Why would we not trust them to regulate the provision of abortion? The criminal law is not needed for this. They have ethical and medical standards that they must & will follow.

Decriminalisation means women aren’t imprisoned if they self-abort, including in the latter stages of pregnancy. Removing the criminal law does not mean such behaviour is condoned. Research shows that criminal law involvement increases the harm to babies and pregnant women.

There are many reasons why it is important women aren’t criminalised for abortion. There are key reasons that relate to abortion itself. I’m not going to go into these as other people know this area better than I do. Read more here. My key concern about criminalising women who harm or kill a late-term foetus is the implications for women’s rights generally, and that such laws fail to protect foetuses/babies.
We have clear evidence of this if we look to the USA. In the USA, most state have enacted foetal homicide laws – that is, the foetus is considered a legal person who has protection under the criminal law. In some of these states, women can be and have been prosecuted and convicted of crimes committed against their unborn child.
I can understand why people might see this as an appropriate response to women whose actions harms or kills a late-term foetus: a late-term foetus and newborn baby are pretty much the same, except for location, right (one is inside the woman, one is outside)?

BUT! And it’s a big BUT! location of the foetus/baby is crucial.

1. To conceptually see a baby in utero (a foetus) as a potential victim of crime puts the woman whose body that foetus is within in an incredibly dangerous position in terms of her freedom, rights & bodily autonomy. The consequence is that behaviour that would be legal while not pregnant, becomes illegal because a woman is pregnant. For example, drinking alcohol is not illegal. But if we criminalise a woman who drinks alcohol (and we can then prove the alcohol caused the foetus to die). the non-criminal behaviour of drinking alcohol becomes criminal BECAUSE the woman is pregnant. Consequently women’s behaviour will be specifically criminalised because of our reproductive function, constituting a sex-based criminalisation: only impacting women because we are women. This is discrimination.
2. There is clear evidence from the USA that introduction of foetal homicide laws and the criminalisation of pregnancy led directly to the overturning of Roe V Wade and the ending of access to abortion in many states. The logic is: if the foetus has legal protection under the criminal law, why would a woman be allowed to have an abortion at any stage of gestation? Why would a woman be legally allowed to kill her “unborn baby” at 2-3 weeks, if it is illegal for her to kill it at 24+ weeks?
3. As with almost all forms of crime control, it is the most vulnerable women who are the focus of law enforcement. In the USA, women of colour and those of lower socio-economic status are disproportionately criminalised. Read Michele Goodwin Policing the womb and Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005.
4.There is clear evidence that the criminalisation of pregnant women has disastrous consequences for foetuses and babies. If women are scared to go to Drs & nurses because they think they will be reported to the police (e.g., women who drink or take drugs) then they avoid medical care during pregnancy. Lack of antenatal care is a leading factor in poor pregnancy outcomes. Numerous US health bodies have declared foetal protection laws to have limited positive impact & there is evidence that women have sought abortions to escape prosecution under foetal protection laws. See Substance Abuse Reporting by the American College of Obstetricians and Gynecologists ) and Punishing Women by The Centre For Reproductive Rights.
If the aim of criminalising women for behaviour while pregnant (aka foetal homicide laws) is to protect foetuses and children, as this blog shows, they clearly they fail!
We need to decriminalise abortion. It is not about believing it’s ok to kill a late-term foetus. It’s about recognising that criminalising women for conduct while pregnant (including self-abortion) has a devastating impact for foetuses, babies and women.
Dr Emma Milne is Associate Professor in Criminal Law and Criminal Justice at Durham University. Her research focuses on criminal law and criminal justice responses to infant killing and foetal harm. The wider context of Emma’s work is social controls and regulations of all women, notably in relation to pregnancy, sex, and motherhood.  Find out more about Emma’s research and receive updates about the campaign to change the law. Read her book, ‘Criminal Justice Responses to Maternal Filicide: Judging the Failed Mother‘.
But it was 30+ weeks?

Further resources

Watch and share the emergency question tabled by MP Diana Johnson in Parliament (5.6.2023) calling for law reform.

Take Action

Join us this Saturday (17th June 2023) at 1pm Royal courts London, or 2pm St Peter’s Square Manchester to protests for abortion reform. Come and find our banner!

Write to your MP. You can use the BPAS form here.

Further reading

The Guardian The Case For Decriminalisation  I  The Guardian Google earned $10m from ads misdirecting abortion seekers to ‘pregnancy crisis centers’  I  WPUK: Advice to US Women to Compromise on Abortion Rights Misses the Mark: Katherine M Acosta  I  WPUK: Roe V Wade must stand  I

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