Currently, NSW law allows for a person to be charged with causing grievous bodily harm to a pregnant woman - and that includes harm to her fetus. But there is no separate crime regarding the fetus, because the law does not recognise the fetus as a person.
Living in the United States, I witnessed first-hand the ways that “fetal personhood” laws are used to punish women and police their pregnancies. Although touted as laws to protect women, fetal personhood laws dilute reproductive rights. The impact on women can be severe. So, when I returned to Australia this year, I was disappointed that Zoe’s Law, Fred Nile’s fetal personhood bill, was back on NSW’s agenda.
But I was alarmed when Premier Gladys Berejiklian yesterday announced her government’s support for a law of this kind.
Currently, NSW law allows for a person to be charged with causing grievous bodily harm to a pregnant woman - and that includes harm to her fetus. But there is no separate crime regarding the fetus, because the law does not recognise a fetus as a legal person. “Zoe’s Law” is Fred Nile’s bill to introduce this specific crime. It follows several tragic road deaths, in which heavily pregnant women were killed and/or their fetuses destroyed. If Nile’s bill becomes law, a person who seriously injures a pregnant woman could be charged with harming both the woman and her fetus.
Nile has tried and failed to get this bill up before. He’s faced strong criticism from women’s advocates. Concerns include the law being used to prosecute women or doctors for ending pregnancies (because abortions necessarily involve the destruction of a fetus). The Nationals have proposed amendments to Nile’s bill to exclude abortions from it. Premier Gladys Berejiklian says her government would propose its own version, also excluding abortion, if re-elected.
But, even if abortion is excluded, recognising a fetus as having legal rights that otherwise only apply after birth remains problematic. We only need to look at the recent experiences of women in the US to understand why.
In the southern state of Alabama, fetal personhood arguments have been used to lock up pregnant women and take away their babies. Alabama’s “Chemical Endangerment Law” was designed to prosecute parents with meth labs in their back sheds for exposing their kids to harmful fumes and risks of explosion. However, Alabama’s highest court held that this law could be used to prosecute women for using controlled substances while pregnant, something that legislators never intended.
The law refers to endangering a “child”. The court, pointing to other US laws that give a fetus legal rights, said the meaning of the word “child” included a fetus, from the moment of conception. Despite the law never having been intended for this purpose, it has been used to prosecute pregnant women for things as innocuous as taking anxiety controlling medications, or sleep aids. Following almost a decade of prosecutions, Alabama has just passed a new fetal personhood law. The new law requires the state to recognise and support the rights of unborn children. Advocates are concerned it may be used to ban the morning-after-pill.
Fetal personhood laws have also been used to criminalise poor pregnancy outcomes. A woman from Iowa, in the Midwest, was prosecuted after she fell down a flight of stairs and miscarried. Iowa has a “feticide” law, which criminalises abortions after the second trimester. The woman was charged after doctors formed the view she threw herself down the stairs on purpose. Another woman from Indiana was charged with attempted feticide when she tried to commit suicide and miscarried. These “feticide” laws effectively equate late-term miscarriages with “homicide” – that is, murder.
These draconian laws disproportionately affect poorer communities, women struggling with addiction, and women of colour. Promoting the idea of the fetus as a fully developed child has long been a centrepiece of anti-choice rhetoric in the US designed to chip away at women’s constitutionally protected right to reproductive choice. They are even more dangerous in NSW, where there is no such right and abortion remains a crime.
How then can we reconcile the potential consequences of fetal personhood laws with the real human tragedy of the cases that have reopened debate about Zoe’s Law? True, expectant parents of planned pregnancies love their unborn children. Nobody doubts that. There is a legitimate community expectation that someone who seriously harms or kills a pregnant woman and causes her to miscarry should be criminally punished. But they already are in NSW. Currently, a person could be jailed for 25 years if they intend to cause the destruction of a fetus and 10 years if they do so recklessly. These are not insignificant penalties.
It is wrong to commute the sacred bonds between expectant parents and their unborn children into a legal status that could be used against pregnant women. To do so jeopardises recent hard-fought wins in reproductive justice and recognition that women should decide what happens to their bodies. Zoe’s Law is not the way forward for the criminal law; it’s a step backwards for women.
Lou Dargan is the Head of Strategic Litigation at Grata Fund. She was living in New York and a member of New York University’s Reproductive Justice Clinic in 2017-2018.