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Heartbeat Laws: The Criminalization of Women

Last month, the attempt for Texas legislators to push anti-abortion laws had grabbed the attention of mainstream media. Ever since the passing of Roe V. Wade laws, pro-choice advocates in America have pushed against laws restricting a women's privacy to reproduction (or the lack thereof). Regarding the restriction of abortion in a state, government officials have considered and encouraged the push for “heartbeat laws” in highly conservative areas, which serves as an act of sexual oppression.

Policies in the same vein as heartbeat laws push for less time in which an abortion becomes viable to a pregnant individual; With them come bans on the termination of a pregnancy even if the termination occurs before the pregnant individuals aware of the fetus’s existence. The vague language of such policies permit legal misconstruction on what is lawful or unlawful, causing an unfair disadvantage to the person being persecuted.

Alongside restricting of access to abortion, heartbeat laws seek to criminalize self-made abortions. This brings in the concern of how miscarriages will be dealt with under such legislation; “heartbeat laws” do not clearly establish the distinction between an illegal abortion or legal miscarriage. The situation regarding the termination of a pregnancy cannot be drawn as primarily two completely different phenomenon –a miscarriage or an abortion; rather, the real-world occurrences of both blur the lines on the classification of one or the other.

In Georgia, women who performed abortions that were not in a legal medical setting would be charged with first degree murder while women who had a miscarriage would be charged with second degree murder, given it was proven to have been due to the women’s conscious behaviors (resulting in up to 10 to 30 years in prison). When the courts were to consider a fetus as a living person to ‘protect’ it under the court of law, it then causes the case of child neglect and manslaughter to apply to said fetuses. If a mother were to partake in actions that would directly cause a miscarriage such as substance abuse, then they would be trialed for manslaughter. t Such imprecise language and definitions create a gray area for the court to simply ‘decide’ if something can be trialed for manslaughter or not, disregarding any structural foundation to what is considered a lawful or unlawful miscarriage in each scenario. The mere ‘decision’ taking place is ineffective and has been troubling in cases such as Marshae Jones.

Marshae Jones was a 5-month pregnant woman who had gotten into a fight that ended with her being shot by the other participant, which subsequently caused her to have a miscarriage. She was tried for manslaughter, possibly facing up to 20 years in prison. This had occurred in the state of Alabama, who, at the time, had attempted to trial Marshae Jones in accordance to the heartbeat laws, thus treating the fetus residing in her womb as a living human.

Despite Jones potential imprisonment for the miscarriage, the individual who had shot her was not to be trialed for the termination of pregnancy. The reasoning for this was because the court had decided that Jones had endangered the fetus by intentionally getting into a fight while pregnant. Although the argument behind this was not constructed off a factual base-- it determined Marshae Jones intent without evidence-- it was utilized in court against Jones. Only through the mobilization of allies and advocates was Jones not imprisoned. butThe fact that such reasoning proceeded to court e highlights how women are targeted unfairly by these laws regarding miscarriages.

Despite the contemporary conversation on abortion and access to reproductive health care being deemed ‘controversial’ today, it should not be considered controversial to argue such subjective reasoning ought to have no place in the legal system.The physical and emotional toll that comes with having a dying fetus residing in one's womb can be immobilizing and a traumatic experience overall. To have to go through a trial to ensure a miscarriage was not intentional given a situation as drastic as the one Marshae Jones had experienced would only aid to the mental toll that the miscarriage would have on the individual. Not only are miscarriages itself something that can be unjustly given a trial, but the trial for birthing a still born fetus itself criminalizes naturally-occurring phenomena to which mothers often have little control over.

This is also seen in the case of Katherine Dellis. In 2016, Dellis had been given five months in prison for concealing a body after discarding the remains of her still born child after giving birth to it. Even though the fetus had died inside her womb and there was no evidence of external force used against the womb, Dellis had been ruled as guilty for the occurrence. Despite her own wishes, intent, and trauma, she was still deemed legally responsible for an incident she had no control over, further demonstrating how a system invoking the use of heartbeat laws neglects the experiences of the women being charged and dehumanizes mothers in general.

No feasible consideration is given to these persecuted individuals such as Jones and Dellis and this would only remain relevant with newer implications of these laws. Human beings are not being treated humanely in these trials.


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