Monday, 1 March 2010

Presumed Guilty Until Proven Innocent - Legal Security Out the Window in New Utah Law that Criminalises Miscarriage

Yes, indeed you read correctly! The US state of Utah has adopted a bill according to which women who suffer miscarriage are to be assumed guilty of murder, unless proven innocent. In reports from inside and outside the US, the flabbergasted reactions have taken up the themes of the so-called Pro Life movement now showing its true face ("so now we see, they're after women after all"), and the problematic or at least uncertain implications in relation to the classic Supreme Court ruling of Roe vs. Wade from 1974, that paved the way for legal abortion in the Unites States. But, in my view, the problematic aspects of this case go way deeper than that, and has little to do with the moral or legal status of abortion. This bill assaults basic principles of legal security that are a necessity for any country that wants to label itself minimally civilized, whatever regulation of abortion, pregnancy, etcetera, one then might want to adopt.

The bill originated in a case where a 17 year old pregnant woman that had passed the time limit for legal abortion allegedly hired some guy to assault her physically in the hope of thereby inducing a miscarriage. This did not happen, so the guy was convicted for something else than murder, presumably some form of attempt. The woman (technically rather a girl at the time of the event), however, turned out not to be possible to convict for anything. Horror!!! Hence the new bill.

I wonder if it is only us non-Utahits that find this reaction particularly twisted? First, the desperation of the 17-year old girl clearly says something quite salient of the situation that the authorities of Utah leave underage, involuntary pregnant females in. Perhaps doing something about that, huh?! But I presume that the morality underlying the bill would prevent anything in that vein - "Helping a slut? What's the matter with you?!", is the expected reaction. Another case of what becomes of the message of love when unattended to by secular reason - something I have commented on before. Second, an online-acquaintance's spontaneous reaction - as my mother's - to the news about the bill was a hands on analogy with the Taliban rule of Afghanistan, and this strikes me as dead right. This perverse obsession with punishment rather than prevention out of compassion is as clear a sign as anything of the supporters of the Utah bill sharing with the Talibans the same brutal idea of how to react to the plight of others. But this is not my main point.

Neither is my point about this case being another in a quite disturbing trend in developed nations to use the pregnancy as an excuse to treat women as instruments for one thing only: the population of the earth. This recent incident from Florida may remind readers about what I'm talking about. In my work in health care ethics, I have noticed a clear rise in enthusiasm among medical staff regarding the possibility of submitting pregnant women to treatments against their will for the sake of the fetus. Conclusion: women, when pregnant, are to be treated as means only and the worry about where to draw the line is of minor consequence. But let's do what philosophers often do: let us lend the supporters of such ideas the benefit of the doubt. Let's assume for the sake of argument, as the saying goes, that actions of women that endanger fetuses are indeed to be viewed as a potentially criminal offense.

On this assumption, my point is this: the Utah bill prescribes society to apply a principle of presuming all pregnant women undertaking any sort of action that may pose some danger to the health and well-being of the fetus they are carrying as guilty of an offense. It is not society that carries the burden of proof of demonstrating the actual occurrence of this offense, it is the accused. First of all, unless some rather vast changes (that will never pass even the first round of an appellate court and even less the supreme court) in the Utah criminal code are undertaken this implies that men and women are judged according to different basic legal principles. If that does not violate the US constitution, I wonder what does! But this is not all. The whole idea of presuming people guilty of crimes, in particular crimes that may be followed by harsh punishment, violates the most basic principle of a fair, just and sustainable legal system that is to be found. For, comically as it would be had it not been for the brutal stupidity of it all, as people like Stalin have proven beyond reasonable doubt, the only consistent application of this principle is the incarceration of the entire population. For, of course, men will have to be judged by the same standard, and as we know, one of the main threats to the health and well-being of women is the actions of men.

And here's the real irony of it all: the bill seems to imply that the entire population of political representatives that voted in favor of the bill, as the public servants that will be enforcing it, have to be prosecuted for exactly the crime described by the very same bill! One needs just a minimum of empathy and imagination to understand the effects of the Utah bill on the pregnant women of Utah. Whatever they do, they will risk having the police banging on the door, dragging them off on a presumed murder charge. For, as we know, anything a pregnant woman does may have effects (given the circumstances) that makes more probable some downside for the fetus. So, the main effect of this new policy will be the inducement of severe fear and stress on pregnant women - a factor well-documented to pose a serious health risk to both woman and fetus. So, come on you Utah law-makers, let's have it all out and see you in court!