Utah Bill Criminalizes Miscarriage

[Valerie]

So you are okay with punishing a woman that skis while pregnant and accidentally miscarries but aren't willing to put a share of blame on the man that impregnated the woman skier?

Where'd you get that idea???

That's what this bill does ... it allows the possibility that a woman could be charged for miscarrying because she "recklessly" did something as innocent as skiing or yoga or eating a big mac.

Yes, but where did you get the idea that I support the bill???

 

[uscitizen]

Utah Bill Criminalizes Miscarriage


Who the heck is Utah Bill and how can he do such things?

 

[Valerie]

Full info including floor debate and proposed amendments:

H.B. 12 Bill Documents - 2010 General Session

Goldcatt, can you explain the legal arguments against simply taking the word reckless out of the bill???

Me, personally? No, I can't. Intentional I can understand and even support. But reckless is so subjective it leaves the door wide open for abuse.

Look at the standard from the Utah Criminal Code. There are actually two parts if you break it down. The first part applies to the woman, in that she had to know (usually applied as "or have reason to know") there was a "substantial" risk of miscarriage in the facts as she saw them and did the act anyway. But the term "substantial" is not defined by the woman, but by the State. So here we have the State defining the acceptable level of risk.

The second is that whatever she did has to deviate from the usual standard of care - but this is not from her eyes, rather from the State's. Standard of care basically refers to the level of caution reasonably expected in the face of risk, and it is not set individually but by either a statute or case law. So here we have the State defining what level of caution is necessary to avoid the risk or be responsible for homicide.

Inserting the "reckless" standard was probably intended to discourage and prosecute things like drug use, etc. etc. But the problem is once this is signed, it's entirely up to prosecutorial discretion and the judges in criminal courts (both of which are elected, BTW) to interpret and apply it. What the bill's drafter says now matters for exactly Jack and Shit.

I hope they use common sense, but all it takes is one or two prosecutors and/or judges on a mission political or otherwise and there is the potential for serious abuse.

Intentional I can understand and even support. But reckless is so subjective it leaves the door wide open for abuse.


Yes, Goldcatt...I think that's it in a nutshell.

 

[goldcatt]

The key point is Gross Deviation of Standard of Care.

A woman skiing in the first trimester shouldn't fall under that definition - third trimester would probably cross the line. Just my opinion.

"Shouldn't", yes. But since the list of reckless behaviors is not defined, it's up to the individual prosecutors to decide whether they think it "should" or "shouldn't" be included in the definition of "reckless" behavior.

THAT is the entire problem.

Even if a charge doesn't stick, do we really want women who have miscarried due to a physical activity like skiing, or not wearing a set belt, or whatever you want to fill in the blank with to have to go through a criminal investigation and prosecution?

 

[Valerie]

LONG TITLE
12 General Description:
13 This bill amends provisions of the Utah Criminal Code to describe the difference
14 between abortion and criminal homicide of an unborn child and to remove prohibitions
15 against prosecution of a woman for killing an unborn child or committing criminal
16 homicide of an unborn child.
17 Highlighted Provisions:
18 This bill:
19 . provides that, for aggravated murder, the aggravating factor of the victim being
20 under the age of 14 years does not apply to the homicide of an unborn child;
21 . provides that a person is not guilty of criminal homicide of an unborn child if the
22 sole reason for the death of the unborn child is that the person refused to consent to
23 medical treatment or a cesarean section or failed to follow medical advice;
24 . provides that a woman is not guilty of criminal homicide of her own unborn child if
25 the death of her unborn child:
26 . is caused by a criminally negligent act of the woman; and
27 . is not caused by an intentional, knowing, or reckless act of the woman;
28 . defines terms, including amending the definition of abortion to relate only to a
29 medical procedure carried out by a physician, or through a substance used under
30 the direction of a physician, with the consent of the woman on whom the abortion

31 is performed;
32 . describes the difference between abortion and criminal homicide of an unborn
33 child;
34 . removes prohibitions against prosecution of a woman for killing an unborn child or
35 committing criminal homicide of an unborn child;
36 . clarifies that a woman is not criminally liable for seeking to obtain, or obtaining, an
37 abortion that is permitted by law; and
38 . makes technical changes.
39 Monies Appropriated in this Bill:
40 None
41 Other Special Clauses:
42 This bill provides an immediate effective date.

Utah Legislature HB0012

 

[goldcatt]

The other interesting thing this bill does is ban all abortions effective immediately should Roe v. Wade be overturned.

(My opinion is that Roe is too politically valuable to the left and even more so the right for them to ever allow it to actually be overturned, but then again I'm a cynic. Take it for what it's worth.)

 

[Valerie]

The other interesting thing this bill does is ban all abortions effective immediately should Roe v. Wade be overturned.

(My opinion is that Roe is too politically valuable to the left and even more so the right for them to ever allow it to actually be overturned, but then again I'm a cynic. Take it for what it's worth.)

I think you're probably right! I share your cynicism...



Back to that little blue OR above....Why can't they just change it to AND and achieve their intended purpose without causing unintended consequences of a bad law???

 

[Valerie]

The other interesting thing this bill does is ban all abortions effective immediately should Roe v. Wade be overturned.

(My opinion is that Roe is too politically valuable to the left and even more so the right for them to ever allow it to actually be overturned, but then again I'm a cynic. Take it for what it's worth.)

I think you're probably right! I share your cynicism...



Back to that little blue OR above....Why can't they just change it to AND and achieve their intended purpose without causing unintended consequences of a bad law???

Does that make sense legally or is it actually redundant anyway???

 

[goldcatt]

The other interesting thing this bill does is ban all abortions effective immediately should Roe v. Wade be overturned.

(My opinion is that Roe is too politically valuable to the left and even more so the right for them to ever allow it to actually be overturned, but then again I'm a cynic. Take it for what it's worth.)

I think you're probably right! I share your cynicism...



Back to that little blue OR above....Why can't they just change it to AND and achieve their intended purpose without causing unintended consequences of a bad law???

The problem is changing the one word "or" to "and" would effectively change the law to say the conduct has to be reckless, AND knowing, AND intentional. With Intentional being the highest standard in that list, all conduct would have to rise to the level of Intentional to be prosecuted.

Look back at the Utah definitions of Intentional, Knowing, Reckless, etc. I would assume they want the law to cover Knowing as well as Intentional behavior, and again I don't really see the same problem with that considering the standard is higher and less subjective. To fix it they should just remove the "or reckless" and leave it as "intentional or knowing".

 

[uscitizen]

Sure, why not? The guy obviously choose the wrong person to impregnate...therefore he shares responsibility.

Like he's an accomplice to stupidity?


I don't think that would hold up in court. Talk about a slippery slope...

So you are okay with punishing a woman that skis while pregnant and accidentally miscarries but aren't willing to put a share of blame on the man that impregnated the woman skier?

Not unless he encourages/takes her skiing.

Do you punish the guy that sold the gun? Or the one who killed someone with it?

 

[Valerie]

The other interesting thing this bill does is ban all abortions effective immediately should Roe v. Wade be overturned.

(My opinion is that Roe is too politically valuable to the left and even more so the right for them to ever allow it to actually be overturned, but then again I'm a cynic. Take it for what it's worth.)

I think you're probably right! I share your cynicism...



Back to that little blue OR above....Why can't they just change it to AND and achieve their intended purpose without causing unintended consequences of a bad law???

The problem is changing the one word "or" to "and" would effectively change the law to say the conduct has to be reckless, AND knowing, AND intentional. With Intentional being the highest standard in that list, all conduct would have to rise to the level of Intentional to be prosecuted.

Look back at the Utah definitions of Intentional, Knowing, Reckless, etc. I would assume they want the law to cover Knowing as well as Intentional behavior, and again I don't really see the same problem with that considering the standard is higher and less subjective. To fix it they should just remove the "or reckless" and leave it as "intentional or knowing".

I appreciate your legal expertise...Thanks!


I was thinking if it was proven "intentional" the "knowing" and "reckless" would be a given anyway. Whereas if you leave it as is.... "OR reckless" it doesn't even have to be intentional and women could be charged with murder!


Why can't they just strike out "OR reckless" and achieve their intended purpose without going down the slippery slope of unintended consequences ???

Reading the article it sounds like they just brushed it off and pushed it through anyway.

 

[JakeStarkey]

The other interesting thing this bill does is ban all abortions effective immediately should Roe v. Wade be overturned.

(My opinion is that Roe is too politically valuable to the left and even more so the right for them to ever allow it to actually be overturned, but then again I'm a cynic. Take it for what it's worth.)

Without Roe v. Wade, both the Democratic and Republican parties would have to recast their platforms and I believe they would attract different demographics than now.

 

[☭proletarian☭]

How is this different than other reckless endangerment/child endangerment laws?

 

[goldcatt]

I was thinking if it was proven "intentional" the "knowing" and "reckless" would be a given anyway. Whereas if you leave it as is.... "OR reckless" it doesn't even have to be intentional and women could be charged with murder!


Why can't they just strike out "OR reckless" and achieve their intended purpose without going down the slippery slope of unintended consequences ???

Exactly. I don't get it.

If I had to guess, there's probably some kind of case law that says something they want to make criminal is "reckless" as opposed to intentional or knowing, but I haven't been able to find anything. Utah is not one of my states. lol

Either that, or it's not unintentional at all. But I'd hate to think that. Maybe they just didn't know or care enough to look at the potential for abuse?

 

[goldcatt]

The other interesting thing this bill does is ban all abortions effective immediately should Roe v. Wade be overturned.

(My opinion is that Roe is too politically valuable to the left and even more so the right for them to ever allow it to actually be overturned, but then again I'm a cynic. Take it for what it's worth.)

Without Roe v. Wade, both the Democratic and Republican parties would have to recast their platforms and I believe they would attract different demographics than now.

It's also a huge tool for fundraising and recruiting volunteers - on both sides. I don't care what anybody says, it can be and has been modified but nobody's letting it go anytime soon.

That's just MHO though, and my crystal ball ain't 100%.

 

[☭proletarian☭]

The point of endangerment laws is you need intend to put the child at risk or harm the child for it to be wrong.

Again, how's this really different than any other endangerment law, save that it takes effect prior to birth?

The only objection I really have is that I'd only have it apply after a certain point- the same point at which I think abortion should not be allowed.

 

[FireGod]

76-2-103. Definitions.
A person engages in conduct:
(1) Intentionally, or with intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result.
(2) Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
(3) Recklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
(4) With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor's standpoint.

(emphasis added)

Utah Code

Now we know how the State of Utah defines the term "reckless" in its criminal code. Thoughts?

Reckless and ordinary are to subjective terms to define and therefore are incredibly difficult to match to a standard.

okay lets not discuss general drugs....pot or booze...but carry it one step more....women who get gestational diabetes....women who drink too much caffine...women who....you see how this could go....that is why the reference to "the handmaiden's tale"

A damn good reference in my mind.

How is this different than other reckless endangerment/child endangerment laws?

The answer is in the thread.

 

[☭proletarian☭]

The answer is in the thread.

I musta missed it. All I saw was a few neofeminists crying.

 

[Valerie]

The answer is in the thread.

I musta missed it. All I saw was a few neofeminists crying.

Really? That's what you see here???


So you think it's okay that in Utah a woman could be charged with murder for tripping over her shoelace when she recklessly failed to tie her shoes properly?

 

[☭proletarian☭]

So you think it's okay that in Utah a woman could be charged with murder for tripping over her shoelace when she recklessly failed to tie her shoes properly?

Thanks for proving my point.

Even skimming the thread I noticed this:

76-2-103. Definitions.
A person engages in conduct:
(1) Intentionally, or with intent or willfully with respect to the nature of his conduct or to a result of his conduct, when it is his conscious objective or desire to engage in the conduct or cause the result.
(2) Knowingly, or with knowledge, with respect to his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or the existing circumstances. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
(3) Recklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
(4) With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor's standpoint.

(emphasis added)

Utah Code

Now we know how the State of Utah defines the term "reckless" in its criminal code. Thoughts?

Now, if you're done with emotional strawmen, do you have any real objections to this legislation?