Why you should care
Many pro-life advocates in the U.S. define abortion as murder. So should that mean miscarriage constitutes involuntary manslaughter?
The right to seek an abortion is under attack nationwide. This year, eight U.S. states have restricted women’s constitutional right — provided by the Roe vs. Wade decision of 1973 — to an abortion, and Alabama has gone so far as to institute a near-blanket ban on the procedure.
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For those who want abortion to be illegal, the desire is often based on equating the procedure to murder. Protesters outside Planned Parenthood clinics wave signs declaring that “abortion is murder” and “babies are murdered here.” The American Enterprise Institute found in 2017 that when Americans are polled on whether abortion is murder, the majority say yes.
Legally speaking, murder is defined as one human being unlawfully killing another human being, according to the Legal Information Institute. But when someone is charged with murder, “states require intent or such a heightened form of recklessness that it equates with intent,” says Nora V. Demleitner, a law professor at Washington and Lee University in Virginia. If we apply this definition of murder to abortion, agreeing that abortion is one human being intentionally killing another human being, wouldn’t miscarriage then logically be involuntary manslaughter?
If you have a miscarriage, you’re assumed to have done something negligent.
Nora V. Demleitner, law professor at Washington and Lee University
The legal definition of involuntary manslaughter is negligently causing the death of another person. In fact, a New York woman named Jennifer Jorgensen was charged with manslaughter in 2008 after getting into a car accident while eight months pregnant. Her baby was delivered via emergency C-section but died five days later, and Jorgensen spent three years in prison for manslaughter before her conviction was overturned.
“If you have a miscarriage, you’re assumed to have done something negligent,” says Demleitner. And if we’re equating abortion to murder, then “a situation where a woman is not behaving perfectly could be considered manslaughter,” she adds.
But, of course, it’s not so simple.
In Jorgensen’s case, the jury ruled she was negligent for not wearing her seatbelt. But the conviction was overturned because a judge from New York’s highest court ruled that the state does not hold women responsible for such events. If it did, he argued, they would also have to charge pregnant women with manslaughter if they miscarry after ignoring doctor’s orders, lifting heavy objects or taking certain prescription drugs.
Miscarriage can also occur for a number of reasons, including chromosomal abnormalities that develop during embryo formation — something unrelated to negligence. Each year in the U.S., there are nearly 1 million miscarriages or stillbirths, according to government statistics, and the cause is rarely found. “Manslaughter also requires a reckless mental state,” Demleitner says, which many women who miscarry do not definitively have.
“Besides the fact that most miscarriages are not foreseeable, expanding the duty of care owed by a mother to a fetus for any act that is not intentional but results in a fetus’ miscarriage is broadening criminal liability too widely,” says Matthew Ryan, an attorney with Flushing Law Group in New York City.
So it’s clearly illogical to claim that all miscarriage is manslaughter, but pro-lifers continue to decry abortion with the blanket description of “murder.” In April, Texas Republican state Rep. Tony Tinderholt introduced a bill that would alter the state’s penal code to eliminate abortion as an exception to criminal homicide. If the bill passes, everyone involved in the procedure, from doctors and nurses to women seeking abortions, could face murder charges. And because Texas has capital punishment for murder charges, a woman could potentially face the death penalty for getting an abortion.
The bill is unlikely to pass, as it falls far outside the mainstream ideology of anti-choice advocates, who are generally against punishing women for obtaining an abortion. But if legislators like Tinderholt continue to insist that abortion is murder, then the law must also reflect miscarriage as manslaughter. Both cannot be true.