On Monday, ThinkProgress reported that a 2009 bill introduced by Virginia state Sen. Mark Obenshain (R) would have required women to report an instance of “fetal death” to the police within 24 hours if it did not occur in the presence of a doctor. The implication behind that type of measure is, of course, that law enforcement should double check to make sure that the women experienced a miscarriage rather than induced an illegal abortion. Obenshain, who is now the state’s Republican nominee for attorney general, ended up striking the proposed legislation after concerns about the undue burden it might place on women who miscarry.
But even though that bill didn’t become law back in 2009, there are still some situations in the state in which miscarriages are treated as potential crimes. In fact, the Virginian-Pilot reported on Tuesday that two women have been charged with “producing an illegal abortion” after one of them gave birth to a pre-term baby who died shortly after birth. Witnesses allege that they overhead the two women planning to buy drugs intended to end the pregnancy:
Jessica Renee Carpenter, 20, and her friend Rachael Anne Lowe, 27, each were charged with one count of producing an illegal abortion, which carries a sentence of two to 10 years. Each also was charged with one count of conspiracy to commit a felony.
According to a search warrant affidavit, Carpenter was 25 weeks pregnant — near the end of her second trimester — when she went to Bon Secours DePaul Medical Center in labor April 11. The baby died about 20 minutes after he was born.
Norfolk Child Protective Services received an anonymous call reporting that Carpenter had intended to end her pregnancy. Police interviewed three friends of both women, who said Carpenter and Lowe wanted to end Carpenter’s pregnancy and that they heard them talking about buying items from a drugstore that she could ingest to do it, according to the affidavit. […]
Carpenter has a ninth-grade education and was unemployed, according to court records. Lowe previously worked at the Tidewater Women’s Health Clinic in Norfolk, which performs abortions for pregnant women up to 14 weeks after their last menstrual period.
Under Virginia law, second-trimester abortions must be performed in a licensed hospital facility in the presence of a physician. Obviously, it’s important to crack down on illegal abortion providers who aren’t providing women with safe care, and — unlike Obenshain’s proposed bill — that’s likely the sole intent behind the state’s current law. But, if the allegations against the two Virginia women are true, the law will have the added effect of prosecuting a woman who made the choice to terminate her own pregnancy. The Virginia-Pilot notes that the only other “illegal abortion” charge on the books was back in 2007, when a man slipped abortion-inducing drugs into his girlfriend’s drink that caused her to have a miscarriage — an act that was obviously done without the woman’s consent.
Even if Carpenter’s miscarriage was self-induced, her case brings up questions about the criminalization of elective abortion procedures across the country. The mounting pile of state-level restrictions intended to restrict women’s access to abortion mean that some desperate women can’t get the reproductive care they need without making themselves into a suspect in the eyes of the law. That’s particularly true under late-term abortion bans, an increasingly popular anti-choice tactic to narrow the window in which women may obtain a legal abortion. If abortion is criminalized at 20 or 18 or even just six weeks of pregnancy, every woman’s miscarriage after that point could be a potential piece of evidence.
And of course, if Carpenter really did take drugs to induce an illegal abortion, it’s worth considering what might have led an undereducated, unemployed, desperate woman like Carpenter to make the choice she did. Perhaps she didn’t have the money for a legal abortion earlier in her pregnancy. Maybe she was too ashamed to make an appointment at a women’s health clinic. She might not have had any support from her friends and family, and she might have felt like she didn’t have any other options.