Over the weekend, Virginia state Sen. Mark Obenshain (R) received backing from the Republican Party in his run for state attorney general. The announcement came as a shock to those who remember the legislation he proposed that would have required women to report any miscarriages they have to police.
A miscarriage differs from an abortion in that miscarriages are the spontaneous loss of a fetus before the 20th week of pregnancy. The loss of a fetus after the 20th week is referred to as a preterm delivery. Depending on what side of the abortion debate a person is on, a miscarriage can also be referred to as a “spontaneous abortion.”
In 2009, Obenshain introduced a bill that would charge women with a Class 1 misdemeanor if they failed to report a miscarriage to the police. In Virginia, a Class 1 misdemeanor carries a maximum sentence of up to one year in jail and a maximum fine of $2,500.
Under the legislation, if a miscarriage occurred without medical attendance, a woman would be required to report the “fetal death, location of the remains, and the identity of the mother” to the local or state police department.
Here’s an official summary of Obenshain’s bill:
“[SB962] requires that when a fetal death occurs without medical attendance upon the mother at or after the delivery or abortion, the mother or someone acting on her behalf, within 24 hours, report the fetal death, location of the remains, and identity of the mother to the local or state police or sheriff’s department of the city or county where the fetal death occurred. The bill also specifies that no one shall remove, destroy, or otherwise dispose of any remains without the express authorization of law-enforcement officials or the medical examiner, and that a violation of this section is a Class 1 misdemeanor.”
Unlike medical abortions, a miscarriage is often caused by chromosome problems that make it impossible for the baby to develop. Doctors are still not entirely sure what exactly triggers a miscarriage. Up to a quarter of all pregnancies are estimated to be terminated as a result of miscarriages. According to the Mayo Clinic, that number is probably higher, since “many miscarriages occur so early in pregnancy that a woman doesn’t even know she’s pregnant. Most miscarriages occur because the fetus isn’t developing normally.”
Miscarriages targeted by anti-abortion groups
Since Obenshain’s miscarriage bill resurfaced, his deputy campaign manager, Jared Walczak, released a statement regarding the controversial legislation:
“At the request of one of his local Commonwealth’s Attorneys, Senator Obenshain carried legislation (SB 962 of 2009) dealing with a specific law enforcement issue. As sometimes happens, the legislation that emerged was far too broad, and would have had ramifications that neither he nor the Commonwealth’s Attorney’s office ever intended. Senator Obenshain is strongly against imposing any added burden for women who suffer a miscarriage, and that was never the intent of the legislation. He explored possible amendments to address the bill’s unintended consequences, and met with representatives of both Planned Parenthood and NARAL Pro-Choice in an attempt to identify a solution. Ultimately, however, he was not satisfied that any amendment could sufficiently narrow the scope of the bill to eliminate these unintended consequences, so he had the bill stricken at his own request.”
While a miscarriage may seem like an odd thing to target, Obenshain is not alone in his attempt to criminalize miscarriages. To some, the topic is viewed as just one more facet to the debate regarding abortion rights.
Tarina Keene, the executive director for pro-abortion rights group NARAL, also released a statement after the bill resurfaced:
“In 2009 we made it clear to Sen. Obenshain that NARAL Pro-Choice Virginia vehemently opposed his bill to criminalize tragic pregnancy complications and intimidate grieving Virginian women with the threat of law enforcement — not to mention jail time. Although Sen. Obenshain did reach out to us amidst public backlash for a ‘solution,’ we clearly told him we would support nothing but immediate defeat of the legislation. While I’m relieved that he eventually decided to pull his bill, it is deeply troubling that an elected official would even consider such a callous and insulting effort.”
Virginia is not the only state to target miscarriages. In 2011, Georgia state Rep. Bobby Franklin (R) introduced a 10-page bill that would have required women to prove there was no “human involvement” in their miscarriages. Women who could not provide proof would have been at risk of felony charges that, some argued, could result in the death penalty.
Another concern for women was a provision of Franklin’s bill that required a woman to be responsible for protecting their fetuses from “the moment of conception.” This is problematic since pregnancy tests are not accurate until at least three weeks after conception.
In Tennessee, controversy ensued after the Republican-controlled state House passed a bill last April that would criminalize harming an embryo. Democratic Rep. Jeanne Richardson said that as written, the bill had the potential to lead to the prosecution of women who naturally miscarry. As Rep. Richardson pointed out, the National Institutes of Health estimates that around 50 percent of all fertilized eggs terminate naturally before reaching full term.
Obenshain’s predecessor
If Obenshain does in fact become Virginia’s next attorney general, he won’t be the state’s first attorney general to propose unusual and controversial legislation. As Mint Press News previously reported, Ken Cuccinelli, Virginia’s current attorney general, has repeatedly proposed an anti-sodomy law that would prohibit consensual anal and oral sex for both gay and straight people.
Up until March 2013, Virginia had a provision in its “Crimes Against Nature” law that made anal and oral sex acts illegal. The Fourth U.S. Circuit Court of Appeals overturned the ruling this year, saying the provision was unconstitutional. The U.S. Supreme Court invalidated sodomy laws related to actions occurring in private between consenting adults in 2003.