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By Willoughby Mariano March 2, 2011

Liberal blogger says abortion bill could affect women who miscarrry

Republican state Rep. Bobby Franklin has made a hobby out of triggering liberal ire. And yes, he’s done it again.

The Marietta legislator’s House Bill 1 rejects the authority of landmark U.S. Supreme Court ruling Roe v. Wade. It bans abortion and labels it "prenatal murder," a crime punishable by life in prison or death.

But that’s not what had bloggers at left-leaning publications seething. It’s that they think the bill could allow prosecutors to charge mothers who miscarry with a crime.

Jen Phillips, a staffer with liberal magazine Mother Jones, wrote the bill "showed an astonishing lack of concern for women’s health and well-being."

"Under Rep. Franklin’s bill, HB 1, women who miscarry could become felons if they cannot prove that there was ‘no human involvement whatsoever in the causation’ of their miscarriage," she wrote.

Women who miscarry could be charged as felons? Is that true?

Franklin has sponsored similar anti-abortion bills without success. This one doesn’t have much steam behind it, either. But given how this claim took off in the blogosphere, we thought it was worth a look.

We called Phillips, who pointed us to a portion of the bill that defines "prenatal murder."

"Such a term does not include a naturally occurring expulsion of a fetus known medically as a ‘spontaneous abortion’ and popularly as a ‘miscarriage’ so long as there is no human involvement whatsoever in the causation of such event," the bill states.

The problem is the phrase "no human involvement" is so broad and the causes of miscarriage can be so complex and difficult to understand that any woman whose actions can be viewed as playing a role in her miscarriage could be prosecuted, Phillips argued.  

This could be a problem. Other critics we interviewed said that under this language, a woman who miscarried could be prosecuted for choosing cancer treatment, taking illegal drugs, or falling off a bicycle while pregnant. All of those situations require some "human involvement."

Franklin said these objections have absolutely no merit.

"[T]hose criticisms are mere smoke screens since as you know the bill does not specifically call for … those things," Franklin wrote in an e-mail.  

Abortion rights advocates agreed that Franklin’s legislation could criminalize miscarriage. A spokeswoman for anti-abortion group Georgia Right to Life said they have not analyzed the bill.

Franklin is right that the bill does not specify that women can be prosecuted under the scenarios that critics raised. However, laws can have unexpected consequences. We therefore took a closer look at Georgia law.

An existing state statute on "feticide," or the destruction of a fetus in the uterus, generally bars women from being prosecuted in the death of her fetus. Frankin’s bill does not repeal this law.

But there’s an exception under Georgia’s "feticide by vehicle" statute. In a 2010 Douglasville case, a pregnant driver fled from police, leading them on a chase.

The driver crashed. Her baby was delivered by emergency C-section but did not survive.

Prosecutors charged the pregnant driver. While Georgia’s "feticide by vehicle" statute does not mandate mothers be charged when they cause crashes leading to the death of their own fetuses, it does not prohibit it.

Research shows that nationally, women have been prosecuted for conduct affecting their fetuses, even when the law does not expressly provide for it, said Lynn Paltrow, executive director of National Advocates for Pregnant Women, which fights anti-abortion laws.

Paltrow gave us examples, which we confirmed.

For instance, in a 2008 South Carolina case, a woman faced homicide charges after attempting suicide while eight months pregnant, killing the fetus. A 1997 state Supreme Court ruling decided that a fetus is considered a child if it is viable, or able to live outside the uterus. This means pregnant women can be prosecuted under state child abuse statutes.

In Missouri, the law bars prosecuting a woman for "indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care," but mothers have been charged with child abuse and convicted of involuntary manslaughter for substance abuse while pregnant, news accounts show.  

Since HB 1 does not repeal existing Georgia feticide law, it’s possible to argue its passage might not lead to the prosecution of women in the death of their fetuses. A judge might decide the earlier feticide law prevents it. However, such a ruling is no sure thing.

In conclusion:

Critics of Franklin’s bill say that the "human involvement" language is so vague that women could be prosecuted for miscarriages, and we agree with them.

While the law does not explicitly allow for miscarriage prosecutions, and Franklin said this is not his intent, the language is so broad it does open the door for women to face felony charges if they abuse drugs, fall off a bicycle, fail to wear a seat belt, or opt for cancer treatment while pregnant.

Women in Georgia and across the nation have previously been prosecuted for actions investigators think adversely affected their fetuses, even if the law does not specifically call for them to do so.  

However, women who miscarry might not be handled as felons. It depends on how prosecutors and judges decide to handle the law.

The statement could use a little more context. We therefore rule Phillips’ statement Mostly True.

Featured Fact-check

Our Sources

Mother Jones, "Ga. Law Could Give Death Penalty for Miscarriages," Feb. 23, 2011

Georgia General Assembly 2011, HB 1, accessed Feb. 25, 2011

Huffington Post, "Anti-Abortion Georgia Lawmaker Proposes Law That Would Criminalize Miscarriages," Feb. 23, 2011,

The Associated Press, "Drug prosecution of pregnant women allowed," May 26, 1998

The Rock Hill (S.C.) Herald, "Woman faces charge of killing unborn child during August suicide attempt," Feb. 21, 2009

St. Louis Post-Dispatch, "Sentence of counseling, treatment for alcoholic whose newborn died stirs frustration, support," Dec. 16, 2007

Missouri Revised Statutes, Chapter 1, Laws in Force and Construction of Statutes,
Section 1.205, accessed March 1, 2011

Guttmacher Institute, State Policies in Brief, "Substance Abuse During Pregnancy," March 1, 2011

Official Code of Georgia Annotated, 2010 Supplement

The Atlanta Journal-Constitution, "Pregnant woman charged in chase," May 15, 2010  

Interview, Jen Phillips, editorial coordinator, Mother Jones, Feb. 28, 2011

E-mail interview, state Rep. Bobby Franklin, March 1, 2011

Interview, Suzanne Ward, spokeswoman, Georgia Right to Life, Feb. 25, 2011

Interview, Lynn Paltrow, executive director, National Advocates for Pregnant Women, Feb. 28, 2011

Interview, Linda Fentiman, professor, Pace University Law School, March 1, 2011

Interview, Chara Fisher Jackson, legal director, ACLU of Georgia, March 1, 2011

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Liberal blogger says abortion bill could affect women who miscarrry

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