The inalienable right to life possessed by every human being is present from the moment of initial formation, and all human beings shall be entitled to the equal protection of persons under the law.
Personhood and Miscarriage
Bill Fortenberry
If a personhood amendment is passed, would that mean that a woman could be prosecuted for manslaughter if she has a miscarriage?
There are two groups of people who ask this question. There are those who ask it innocently because they are legitimately concerned about the negative effects of a personhood amendment, and then there are those who already know the answer to this question but ask it anyway in order to stir up opposition to the personhood amendment. This article is written for those in the first of these two groups, so I’m going to assume that my readers are rational adults who are willing to consider a complex answer to a subtly simple question. If that doesn’t describe you, then you should probably stop reading at this point. For everyone else, please read the entire article and take some time to think about it before deciding if you would vote in favor of a personhood amendment.
In Alabama, there are several laws which work together to protect women from being criminally charged for miscarriages. The first and most significant of these laws is Alabama’s definition of the term “manslaughter.” According to the Code of Alabama:
“A person commits the crime of manslaughter if he recklessly causes the death of another person.”[1]
There are two key elements to this definition of manslaughter, recklessness and causation. Before a woman could be found guilty of manslaughter in regards to a miscarriage, a prosecutor would have to prove that she caused her own miscarriage and that she did so while acting recklessly.
Now, the term “recklessly” is also defined in Alabama’s Code. At the beginning of its criminal code, Alabama includes a section on culpability which defines “recklessly” as:
“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”[2]
What this means is that, in order to be guilty of manslaughter, a woman must not only cause her own miscarriage but she must do so while taking a risk that meets three specific standards.
First, it must be a risk that is substantial. This excludes risks such as driving a car or taking a trip on a plane. Anytime someone drives a car, there is a certain amount of risk that he will be killed in an accident. Similarly, there is a certain amount of risk that a plane will fall out of the sky, but these are not substantial risks. An action that has a substantial risk of death is an action which will almost certainly result in death.[3]
Second, the risk must be unjustifiable. For example, if a man were to grab a child and jump out of a third story window, he would be taking a risk of killing or injuring that child, but if he did it in order to save the child from a burning building, then that risk would be considered justified. If this man’s pregnant wife were to make the same leap and lose the baby as a result, her actions would be just as justifiable as her husband’s.
Third, the risk must be a result of a gross deviation from reason. In other words, the action which produces the risk must be something that a normal, reasonable person would not do. For example, a normal, reasonable person would not randomly choose to drive his car down the sidewalk instead of the street. If a man just decided that it would be fun to drive down the sidewalk and he were to kill someone as a result of that decision, he would be guilty of manslaughter. However, if that same man were to accidentally kill someone as a result of swerving onto the sidewalk in order to avoid a vehicle that had entered his lane from the opposite direction, then he would not be guilty of manslaughter. Suddenly swerving out of the path of an oncoming vehicle is something that a normal, reasonable person would do.[4]
These are the three standards which a risk must meet in order for the person taking the risk to be convicted of manslaughter. In such cases, the risk of death must be substantial. It must be unjustifiable. And it must be a result of a gross deviation from reason.
This means that, in order for a woman to be convicted of manslaughter as a result of a miscarriage, the prosecutor would have to prove that the woman caused her own miscarriage, that she did so while taking an action that carried a substantial risk of death to her prenatal child, that her action was unjustifiable, and that her action was a gross deviation from the actions of a normal, reasonable adult. This is an extremely high burden of proof, and it effectively guarantees that mothers in Alabama have no reason to fear such a prosecution.
However, when we consider the question of personhood and miscarriage, it is important to note that the answer being sought is one of absolute certainty. The individual asking this question is often looking for a 100% guarantee that no woman will ever be prosecuted for a miscarriage under any circumstances. What is really being asked here is, “Can you look into the future and guarantee that no one will ever misconstrue this amendment so much that they prosecute a woman who has had a miscarriage?”
The answer to this question is, No. There is no law on earth that is incapable of being misconstrued and misapplied. Every law that has ever been written can be twisted and used to oppress the rights of the citizens rather than to defend the rights of the citizens. History is replete with examples of good laws being used for bad purposes, and there is no way to guarantee that this will never happen with a personhood amendment.
We have a law in our state prohibiting murder.[5] Because of this law, it is possible for me to deceitfully accuse my neighbor of being a murderer. It is also possible for the District Attorney to believe my accusation and prosecute my neighbor as a murderer. It is even possible for a jury to believe my accusation and convict my innocent neighbor of a murder which he did not commit. It is possible for this innocent man to spend the rest of his life in prison. All of this is possible because our state has a law prohibiting murder.
Does this mean that our law against murder is a bad law? Not in the least. The law against murder is a good law, but every good law necessarily includes the possibility of evil men twisting it for their own vile purposes.
The same thing can be said about the personhood amendment. Can I guarantee that this amendment will never be used in a twisted manner to prosecute a woman for manslaughter if she has a miscarriage? I can no more guarantee this than I can guarantee that an innocent man will never be prosecuted for murder. However, what I can guarantee is that anyone who tries to use the personhood amendment to prosecute women for having miscarriages will be just as guilty as someone who falsely accuses his neighbor of murder. It is always possible for bad people to use a good law in an evil way, but this possibility is not a sufficient reason for voting against a good law.
______________________________
[1] Ala. Code § 13A-6-3(a)
[2] Ala. Code § 13A-2-2(3)
[3] Miller v. Fisher, 2010 U.S. App. LEXIS 12932 (7th Cir. Ill. June 23, 2010)
[4] Prior to 2014, the gentleman in this example could have been convicted of vehicular homicide, but vehicular homicide convictions were repeatedly overturned on both the Appellate and the State Supreme Court level until Alabama’s vehicular homicide law was eventually repealed. The case of Julia Edwards (Ex parte Edwards, 816 So. 2d 98 - Ala: Supreme Court 2001) particularly illustrates the fact that it was the vehicular homicide statute’s lack of mental culpability language similar to that found in Alabama’s manslaughter statute which led to its demise.
[5] Ala. Code § 13A-6-3
There are two groups of people who ask this question. There are those who ask it innocently because they are legitimately concerned about the negative effects of a personhood amendment, and then there are those who already know the answer to this question but ask it anyway in order to stir up opposition to the personhood amendment. This article is written for those in the first of these two groups, so I’m going to assume that my readers are rational adults who are willing to consider a complex answer to a subtly simple question. If that doesn’t describe you, then you should probably stop reading at this point. For everyone else, please read the entire article and take some time to think about it before deciding if you would vote in favor of a personhood amendment.
In Alabama, there are several laws which work together to protect women from being criminally charged for miscarriages. The first and most significant of these laws is Alabama’s definition of the term “manslaughter.” According to the Code of Alabama:
“A person commits the crime of manslaughter if he recklessly causes the death of another person.”[1]
There are two key elements to this definition of manslaughter, recklessness and causation. Before a woman could be found guilty of manslaughter in regards to a miscarriage, a prosecutor would have to prove that she caused her own miscarriage and that she did so while acting recklessly.
Now, the term “recklessly” is also defined in Alabama’s Code. At the beginning of its criminal code, Alabama includes a section on culpability which defines “recklessly” as:
“A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.”[2]
What this means is that, in order to be guilty of manslaughter, a woman must not only cause her own miscarriage but she must do so while taking a risk that meets three specific standards.
First, it must be a risk that is substantial. This excludes risks such as driving a car or taking a trip on a plane. Anytime someone drives a car, there is a certain amount of risk that he will be killed in an accident. Similarly, there is a certain amount of risk that a plane will fall out of the sky, but these are not substantial risks. An action that has a substantial risk of death is an action which will almost certainly result in death.[3]
Second, the risk must be unjustifiable. For example, if a man were to grab a child and jump out of a third story window, he would be taking a risk of killing or injuring that child, but if he did it in order to save the child from a burning building, then that risk would be considered justified. If this man’s pregnant wife were to make the same leap and lose the baby as a result, her actions would be just as justifiable as her husband’s.
Third, the risk must be a result of a gross deviation from reason. In other words, the action which produces the risk must be something that a normal, reasonable person would not do. For example, a normal, reasonable person would not randomly choose to drive his car down the sidewalk instead of the street. If a man just decided that it would be fun to drive down the sidewalk and he were to kill someone as a result of that decision, he would be guilty of manslaughter. However, if that same man were to accidentally kill someone as a result of swerving onto the sidewalk in order to avoid a vehicle that had entered his lane from the opposite direction, then he would not be guilty of manslaughter. Suddenly swerving out of the path of an oncoming vehicle is something that a normal, reasonable person would do.[4]
These are the three standards which a risk must meet in order for the person taking the risk to be convicted of manslaughter. In such cases, the risk of death must be substantial. It must be unjustifiable. And it must be a result of a gross deviation from reason.
This means that, in order for a woman to be convicted of manslaughter as a result of a miscarriage, the prosecutor would have to prove that the woman caused her own miscarriage, that she did so while taking an action that carried a substantial risk of death to her prenatal child, that her action was unjustifiable, and that her action was a gross deviation from the actions of a normal, reasonable adult. This is an extremely high burden of proof, and it effectively guarantees that mothers in Alabama have no reason to fear such a prosecution.
However, when we consider the question of personhood and miscarriage, it is important to note that the answer being sought is one of absolute certainty. The individual asking this question is often looking for a 100% guarantee that no woman will ever be prosecuted for a miscarriage under any circumstances. What is really being asked here is, “Can you look into the future and guarantee that no one will ever misconstrue this amendment so much that they prosecute a woman who has had a miscarriage?”
The answer to this question is, No. There is no law on earth that is incapable of being misconstrued and misapplied. Every law that has ever been written can be twisted and used to oppress the rights of the citizens rather than to defend the rights of the citizens. History is replete with examples of good laws being used for bad purposes, and there is no way to guarantee that this will never happen with a personhood amendment.
We have a law in our state prohibiting murder.[5] Because of this law, it is possible for me to deceitfully accuse my neighbor of being a murderer. It is also possible for the District Attorney to believe my accusation and prosecute my neighbor as a murderer. It is even possible for a jury to believe my accusation and convict my innocent neighbor of a murder which he did not commit. It is possible for this innocent man to spend the rest of his life in prison. All of this is possible because our state has a law prohibiting murder.
Does this mean that our law against murder is a bad law? Not in the least. The law against murder is a good law, but every good law necessarily includes the possibility of evil men twisting it for their own vile purposes.
The same thing can be said about the personhood amendment. Can I guarantee that this amendment will never be used in a twisted manner to prosecute a woman for manslaughter if she has a miscarriage? I can no more guarantee this than I can guarantee that an innocent man will never be prosecuted for murder. However, what I can guarantee is that anyone who tries to use the personhood amendment to prosecute women for having miscarriages will be just as guilty as someone who falsely accuses his neighbor of murder. It is always possible for bad people to use a good law in an evil way, but this possibility is not a sufficient reason for voting against a good law.
______________________________
[1] Ala. Code § 13A-6-3(a)
[2] Ala. Code § 13A-2-2(3)
[3] Miller v. Fisher, 2010 U.S. App. LEXIS 12932 (7th Cir. Ill. June 23, 2010)
[4] Prior to 2014, the gentleman in this example could have been convicted of vehicular homicide, but vehicular homicide convictions were repeatedly overturned on both the Appellate and the State Supreme Court level until Alabama’s vehicular homicide law was eventually repealed. The case of Julia Edwards (Ex parte Edwards, 816 So. 2d 98 - Ala: Supreme Court 2001) particularly illustrates the fact that it was the vehicular homicide statute’s lack of mental culpability language similar to that found in Alabama’s manslaughter statute which led to its demise.
[5] Ala. Code § 13A-6-3