Since the fall of Roe v. Wade, bills aiming to criminalize abortion providers have proliferated. But it’s relatively rare to see lawmakers propose criminalizing women who obtain abortions—well, it was rare, at least. In January, lawmakers in at least four states introduced proposals to make intentionally harming a fertilized egg or fetus punishable under homicide statutes, with no exceptions for women who get abortions unless they were forced or coerced into ending their pregnancies.
These measures would leave pregnant women who seek abortions subject to criminal charges such as murder, manslaughter, attempted murder, and attempted manslaughter and open to wrongful death lawsuits brought by partners or family members.
They could also seriously imperil care for women experiencing pregnancy complications and have major implications for in vitro fertilization practices.
Indiana: House Bill 1334 was introduced by state Rep. Lorissa Sweet (R–Indianapolis) on January 13. It has attracted two co-sponsors so far and has been referred to the Committee on Courts and Criminal Code.
Sweet’s bill would modify Indiana’s criminal code so that the phrase “human being” includes beings in utero and fertilized eggs. Human being “includes an unborn child at any stage of development from fertilization at the fusion of a human spermatozoon with a human ovum,” H.B. 1334 states.
The measure would repeal the crime of feticide—the killing of a fetus—since the killing of a fetus by any means, including abortion, would count as murder or manslaughter. It would also make injuring an embryo or fetus actionable under wrongful death lawsuits, as well.
Sweet’s bill would further repeal a section of the Indiana criminal code saying “it is a defense to any crime involving the death of or injury to a fetus that the defendant was a pregnant woman who committed the unlawful act with the intent to terminate her pregnancy.” Thus, a pregnant woman who tried to terminate her pregnancy could be criminally punished.
North Dakota: A dozen lawmakers have signed on to House Bill 1373, which was also introduced on January 13. Its lead author is state Rep. Lori VanWinkle, (R–Minot).
H.B. 1373 would amend certain sections of North Dakota code to say that the terms human being and person include an “unborn child” from “the moment of fertilization.” These changes would apply “as the terms relate to the offenses of murder and assault, and civil actions for death caused by wrongful acts.”
Oklahoma: We’ve got Senate Bill 456, introduced on January 8 by state Sen. Dusty Deevers (R–Elgin) and co-authored in the Oklahoma House by Rep. Gabe Woolley (R–Broken Arrow). The bill, called the “Abolition of Abortion Act,” amends the state’s homicide statute.
Oklahoma’s homicide statute already says that “”human being’ includes an unborn child” from the moment of conception, but it excludes from the definition of homicide acts “committed during a legal abortion to which the pregnant woman consented” and stipulates that “under no circumstances shall the mother of the unborn child be prosecuted for causing the death of the unborn child unless the mother has committed a crime that caused the death.”
S.B. 456 would repeal the abortion exclusion and the bit excluding pregnant women.
Elsewhere, Deevers’ bill would add language specifying that “even where the charge is murder, the provisions of this section shall apply if the victim is an unborn child and the defendant is the child’s mother.”
South Carolina: House Bill 3537—dubbed the “Prenatal Equal Protection Act”—was introduced on January 14 and referred to the Committee on Judiciary. It was introduced by state Rep. Rob Harris (R–Spartanburg), and the bill currently has six co-sponsors.
Harris’ bill would amend the state’s homicide and assault statutes to state that “‘person’ includes an unborn child at every stage of development from fertilization until birth.”
What these bills would mean: All of these measures would leave women who terminate or attempt to terminate their pregnancies criminally liable for harm to the unborn child.
They also go beyond that. In defining human beings to include all embryos, from the moment of conception, they would have implications for in vitro fertilization, which often involves the creation of embryos that are frozen for later use and sometimes, eventually, destroyed.
They could incentivize law enforcement to investigate women who naturally miscarry or pregnant women who act in ways that could be dubbed dangerous to their fetuses.
And while they all include language theoretically meant to limit their applicability to situations involving spontaneous miscarriage or instances where a mother’s life is at risk, we’ve seen already in some states how this can play out in practice. When faced with situations where a woman’s health is threatened but perhaps not yet critically, medical professionals may be afraid to act, lest they harm her fetus and be found guilty of violating an abortion ban.
Hospitals and doctors on the hook for homicide if they make the wrong decisions may be unlikely to err on the side that could leave them liable—which means women may be forced to continue doomed or life-threatening pregnancies.
Language in these bills ostensibly designed to clear up confusion on this front could actually make things more confusing for medical professionals and more dangerous for pregnant women. For instance, the North Dakota bill specifies that its new rules don’t apply to “the unintentional death of an unborn child resulting from…a procedure undertaken to save the life of a mother when accompanied by reasonable steps to save the life of the unborn child” (emphasis mine). The other three statutes contain similar language.
This implies that doctors who act to save a pregnant woman’s life while endangering her fetus could still be liable for homicide or wrongful death if later deemed to have not taken enough “reasonable steps” to protect the fetus. Under this paradigm, doctors and hospitals may fear that intervening “too early” in a miscarriage will leave them liable, even when intervening too late can leave a mother vulnerable to sepsis and death.
Only the South Carolina statute explicitly states that “mistake or unintentional error on the part of a licensed physician or other licensed healthcare provider or his or her employee or agent or any person acting on behalf of the patient shall not subject the licensed physician or other licensed healthcare provider or person acting on behalf of the patient to any criminal liability.”
More Sex & Tech News
Dusty Deevers is at it again: The Oklahoma state senator has introduced a bill that would criminalize pornography production or possession, making it punishable by up to 10 years in prison. Deevers did this last year too, with a bill broad enough to ban sending sexy selfies to someone who’s not your spouse.
Deevers’ new legislation would set “criminal penalties of up to 10 years in prison for production, distribution, or possession” of porn, per Deevers’ press release. “It also provides heightened 10-to-30-year criminal penalties for organized pornography trafficking.”
More states try to regulate algorithms: In Virginia, House Bill 1624 “breaks down the activities performed by social media algorithms and provides a list of features for which minors must have verifiable parental consent,” explains Max Gulker of the Reason Foundation (the nonprofit that publishes this site) in a post laying out potential negative consequences of this approach.
Meanwhile, in Missouri, Attorney General Andrew Bailey has put forth a bonkers proposal, in which social media platforms are required to let users “choose among competing content moderators.” Tech companies themselves would be forbidden from moderating, censoring, or suppressing “content on the social media platform such that a user is unable to view that content if their chosen content moderator would otherwise permit viewing that content.”
Aside from massive technological feasibility concerns here, this would also introduce even more massive liability concerns. Platforms like X, Facebook, Truth Social, etc., would presumably still be legally liable for certain types of content on their platforms and yet not be allowed to have any control over it. They would also be totally denied the opportunity to differentiate themselves based on things like platform moderation styles and rules.
Bailey is calling this half-baked idea a “Regulation Securing Algorithmic Freedom for Social Media Users.” He’s currently “taking public comments” and collecting “additional evidence about the deceptive practices of the social media companies,” according to his office.
Professor gets $1 million “to understand illicit decision making” in massage businesses: A reader of this newsletter recently alerted me to an article from Wake Forest University about the work one business school professor is doing “to detect and disrupt human trafficking”—and the ample government funding she’s gotten to do so. It’s a perfect example of the misguided way U.S. authorities approach exploitation and abuse in the sex trade.
It seems the National Science Foundation has given $1 million to Stacie Petter, a professor at Wake Forest’s School of Business, so that Petter and partners can spend three years “investigating the massage therapy industry” by “gathering information from dozens of people who approach the issue wearing different lenses.”
“I can’t go interview people about their illicit business activities. I can’t ask someone why they made the choice to pay someone under the table or why they are allowing their massage therapists to engage in commercial sex for tips,” said Petters. “We have to go about getting insights in a different way by making assumptions and running experiments. So, we’re using agent-based modeling, or a form of simulation.”
Alas, government grants intended to fight human trafficking tend to go to either prostitution stings or academic researchers doing endless theory work, like this. But what victims of sexual exploitation need is not “rescue” (aka handcuffs and jail) by cops or theoretical modeling of their abusers’ decisions by a bunch of business school professors. They need help acquiring the things needed to live outside of the exploitative paradigm—things like housing, transportation, and decent jobs. Instead of spending millions of dollars on nonsense academic studies, we should be spending it on material resources for people who need help leaving abusive pimps, partners, etc.
About time: The White House is opening up the press briefing room to online content creators of all sorts. “We encourage anybody in this country: whether you are a TikTok content creator, a blogger, a podcaster—if you are producing legitimate news content, no matter the medium, you will be allowed to apply for press credentials to this White House,” said White House press secretary Karoline Leavitt on Tuesday.
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