No, Women Will Not be Investigated for Miscarriages if Roe v. Wade is Overturned

National   |   Micaiah Bilger   |   Nov 30, 2021   |   1:38PM   |   Washington, DC

Abortion activists are stirring up unfounded fears once again that women will be criminally investigated for miscarriages if the U.S. Supreme Court overturns Roe v. Wade.

Newsweek promoted their false claims this week as the high court prepares to hear a major abortion case out of Mississippi.

The truth is that pro-life advocates and the laws that they fight for do not and never have punished women, including laws that protected unborn babies’ right to life in the decades before Roe v. Wade. But abortion activists view the issue as a matter of control, believing erroneously that pro-life advocates’ goal is to control women’s bodies, not protect unborn babies’ lives.

To make their case, pro-abortion groups pointed to the recent manslaughter conviction of an Oklahoma woman who admitted to taking illegal drugs while pregnant with her unborn child. Her unborn baby died, and a medical examiner found illegal drugs in the baby’s body that likely caused or contributed to the baby’s death.

According to Newsweek, Brittney Poolaw’s jail sentence “prompted an outcry, but experts warn that her case offers a preview of a draconian future where such prosecutions could become all too common” if the Supreme Court overturns Roe.

Lynn Paltrow, the founder and executive director of National Advocates for Pregnant Women, admitted that cases like Poolaw’s are rare, but she argued that more could happen if Roe goes.

Overturning Roe would be “a giant green light for prosecutors who are intent on finding ways to police and penalize the people who get pregnant,” Paltrow told Newsweek.

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However, the historical evidence that Paltrow herself shared contradicts her predictions. She told Newsweek, “There were arrests before Roe, not that many, but there absolutely were some.”

The rare cases that Paltrow cited were not about “penalizing” women just because they were pregnant or because their unborn babies died of natural causes in miscarriages. Those cases involved strong evidence of unborn babies being killed on purpose or as a result of reckless disregard and extreme negligence.

Claims about women being prosecuted in the future simply because they suffered a miscarriage or did not seeking out prenatal care are irrational hyperbole with no basis in reality.

Yet, more fear-mongering came from a report by the National Association of Criminal Defense Lawyers about abortion. It claimed that recognizing unborn babies as persons with protected legal rights will lead to mass over-criminalization of women, according to Newsweek.

While the authors acknowledged that most pro-life laws explicitly exclude women from punishment, they dismissed this inconvenient fact by claiming that potential future pro-life laws could “subject women to criminal prosecution and incarceration for their pregnancy outcomes.”

Here’s more from the report:

Missy Owen, co-author of report from the National Association of Criminal Defense Lawyers , said defining personhood prior to the point of fetal viability will put more women in danger of prosecutions for suffering natural miscarriages in a post-Roe world.

“It’s just going to be a natural consequence that miscarriages happen before viability,” Owen told Newsweek. “If a fetus is considered a human being, the laws that are already on the books are going to enable prosecutors to make these prosecutions without additional legislation. When we’re dealing with miscarriages, these now could be called homicide.”

As many as 26 states could protect unborn babies by banning abortions if Roe v. Wade is overturned, according to the Guttmacher Institute, a pro-abortion research group. But none of these states punish mothers for losing their unborn babies to miscarriages or even for choosing to abort them.

Abortion advocates often bring up the possibility of women being punished if abortion becomes illegal again, but past and current laws both show that pro-lifers do not support punishments for women. Current abortion bans, such as the ban on partial-birth abortions, do not punish women who have abortions.

While pro-life advocates yearn for the day when unborn children are protected under law and abortions are banned, the pro-life movement has historically opposed punishing women who have abortions — instead focusing on holding abortion practitioners criminally accountable for the unborn children they kill in abortions.

Historically, women were not prosecuted for obtaining abortions prior to Roe v. Wade, and there are only two known prosecutions of women for abortions (in 1911 and 1922) in the whole of the U.S., according to research by Clarke D. Forsythe, senior legal counsel for Americans United for Life.

In 2016, Forsythe wrote:

This political claim is not an abstract question that is left to speculation—there is a long record of states treating women as the second victim of abortion in the law that can be found and read. To state the policy in legal terms, the states prosecuted the principal (the abortionist) and did not prosecute someone who might be considered an accomplice (the woman) in order to more effectively enforce the law against the principal. And that will most certainly be the state policy if the abortion issue is returned to the states.