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Alabama bill would give new meaning to 'miscarriage of justice' [1]

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Date: 2023-05-10

The law does have some exceptions. A woman would not be found responsible if the cause of the ended pregnancy was “duress.”

That term also gets a special definition in this bill, making it not a crime if “the actor engaged in the proscribed conduct because he was compelled to do so by the threat of imminent death or serious physical injury to himself or another.”

That “he” and “himself” in the section above applies to the woman. It’s just that the law is written as if any actual person is a “he.” The woman is going to be “he” throughout most of this bill. Because God forbid someone in Alabama use “they” when creating a legal definition that applies to any gender.

However, even the duress clause has an exception.



The defense provided by this section is unavailable if the actor intentionally or recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

So a woman could use the duress clause as a potential way to avoid being charged with murder if an abusive spouse either forced her to get an abortion or caused her to miscarry. However, it looks like this protection would be voided if the woman did something like return to a spouse who had been abusive, or place herself in some other position of danger, because she simply had nowhere else to go.

The bill makes it clear that it is explicitly not a defense to get an abortion or take any action that might lead to miscarriage because a spouse insisted on it. In fact, to make that absolutely clear, it removes existing protections under Alabama law, including, “The presumption that a woman is subject to compulsion when acting in the presence of her husband is abolished.”

The Alabama legislature would probably call this giving women more rights.

The bill also provides some protection for medical personnel, who are given a pass so long as anything that happens to the fetus during some other procedure is accidental. Also, when attempting to save the life of the woman, “provided all reasonable alternatives to save the life of the unborn child were attempted.”

That last part is so purposely vague that not an obstetrician in the state is going to be fooled. There’s no level of care that can’t be nitpicked by an overzealous prosecutor.

All of this is astounding, but the most appalling part of this completely appalling bill may be this:



This bill would expand the definition of person for the purposes of the criminal code to include an unborn child from the moment of fertilization.

This is a bill that criminalizes both abortion and miscarriage, and starts the clock from a period when women don’t even know they are pregnant. The earliest a home test can detect a pregnancy is around 10 days after fertilization. Most physicians advise women not to even bother with a test until they have missed a period.

Even among pregnancies that are detected, 10-20% end in miscarriage. That’s somewhere between 6,000 and 12,000 women every year in Alabama. Some of those women may be relieved by what happened. Many will regard that miscarriage as a tragedy. Should this bill become law, all of them will be subject to investigation.

Did they drink before they knew they were pregnant? Did they take drugs? Was that exercise too strenuous? Did they engage in overly vigorous sex? Or just sex? What might they have done that caused their pregnancy to end?

Take every question that women ask themselves in the emotional and physical eddy following a miscarriage. Now make every one of those thoughts a potential charge of manslaughter. Or reckless homicide. Or first-degree murder.

Even those situations where a woman clearly has been abused so severely as to directly cause a miscarriage or has been forced into an abortion they didn’t want would involve that woman becoming a suspect in an investigation. It would be left to local prosecutors and police to decide if she had any fault in the loss of the fetus.

In Alabama last year, 523 women went to the hospital and experienced stillbirths. Most of those women expected to go home with a baby, and instead found themselves facing one of the greatest emotional blows of their lives. Some of them came to that moment through medical conditions that also threatened their own lives and left them physically as well as emotionally wrecked. Take that situation, then add a detective coming to the hospital to ask questions about every moment of the previous nine months.

So you went to visit your mother last month, did you? Did you fly in a plane? Uh huh. And tell me, what kind of prenatal vitamins were you taking? Oh, you didn’t? I see.

The Alabama law acknowledges that it will cost the state money to enact. It doesn’t say how much. But the potential for real emotional, mental, and physical harm is almost unlimited.

If this law is passed, some women will be jailed by men who investigated every aspect of their lives and determined they didn’t do enough to protect a pregnancy that may have never proceeded beyond a tiny cluster of cells. Thousands of others will have a cloud of fear and guilt cast over them at a time when they are already feeling those things. It is impossible to distinguish between a pregnancy that was self-terminated by the body because of some issue with the early progress of the embryo, and one that might have been triggered by some aspect of diet or some other action. With this law, juries will make that decision.

No lives will be saved by this bill, but the number of women who fail to visit a doctor, especially early in their pregnancy, out of fear of the consequences of this bill, will almost certainly be significant. And fully justified. That will lead to an increase, not a decrease, in the number of pregnancies that end in unplanned loss.

This bill is simply more proof that none of this—not anti-abortion laws, not peering up the skirt of female athletes, not this bill—is about protecting children. It’s about men subjecting women to an ever greater level of intrusion, restriction, and threat. It’s about putting those women in their place. It’s about control.

And don’t worry. If a local prosecutor—say in one of those “blue cities”—is unwilling to spend police resources questioning neighbors to see if a woman might have been known to drink a glass of wine, or maybe eat too much fast food to be healthy, the bill allows the state attorney general to step in and take over the prosecution.

It’s 2023, which may be an odd year, but that just means Virginia takes its traditional place as one of the key states to watch. With odd-year state elections, Virginia has often been a key bellwether for the rest of the country, and this year is no different. Both the state Senate and the General Assembly are up, and both chambers could be won by either party. Daily Kos Elections Editor Jeff Singer joins us to preview the key races in both the June primary and the fall general election.

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[1] Url: https://www.dailykos.com/stories/2023/5/10/2168613/-Alabama-bill-would-give-new-meaning-to-miscarriage-of-justice

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