End of Roe v. Wade will criminalise stillbirths, miscarriage and pregnancy loss

The end of Roe v. Wade in the US has set a dangerous new precedent with a rise in prosecutions of women for the unsuccessful outcome of their pregnancies.

Medical experts in the United States have sounded the alarm that the end of Roe v. Wade, the law that gave women federally mandated access to abortions, will not stop at repealing that right.

Fears have now been raised that the overturning of that 50-year law will encourage anti-abortion states to prosecute women for pregnancy loss such as stillbirths, miscarriages, and self-induced abortions.

“What we have seen in cases where we have provided legal defence, mothers who experience a stillbirth or a miscarriage are blamed for that loss,” Dana Sussman, acting executive director for the National Advocates for Pregnant Women (NAPW) told NPR.

The US Supreme Court's decision in Dobbs v Jackson Women's Health overturned the landmark 50-year-old Roe v Wade case and erased a federal right to an abortion. Picture: AFP

Prosecuting pregnancy loss is not new in the US but the trend has been increasing and is likely to rise further under the new ruling, with more women being charged for their pregnancy outcomes.

NAPW found just over 400 cases where pregnancy loss was criminally prosecuted until 2005. Then from 2006 to 2020, that number almost quadrupled.

With at least 38 out of the 50 US states legislating that it is a crime to harm a foetus, if authorities perceive the mother to have caused harm to the outcome of the pregnancy through her own activities, they may prosecute.

One such case is Chelsea Becker who spent 16 months in a California prison awaiting a murder trial after her pregnancy ended in a stillbirth, despite a lack of conclusive medical evidence that her behaviour had contributed to the death of the baby.

Becker told NPR she believed she would be handed a 15-year jail term for the pregnancy loss until her case drew national attention.

PlanB one-step emergency contraception pills and similar have surged in demand following the Supreme Court ruling to overturn Roe v. Wade and states moving to ban abortions. Picture: Getty Images

Advocates like Dana Sussman say the trend is troubling particularly because 20 per cent of pregnancies in the US end in loss.

It comes as outcry has grown over conservative Supreme Court judge Clarence Thomas, 74, currently the court’s only African-American justice.

Selected for the court in 1991, he was confirmed despite explosive allegations made in televised hearings that he had sexually harassed a former assistant, Anita Hill.

He stridently denied her charges, calling the experience a “high-tech lynching.” For years, Thomas’s deep conservatism consigned him to the court’s minority and he was an anchor of the majority that ruled that the US constitution does not guarantee the right to abortion, setting off bans on the procedure in many states.

Demonstrators protest at the entrance of the gated community where US Supreme Court Justice Thomas Clarence lives in Fairfax, Virginia, after the US Supreme Court struck down the right to abortion. Picture: AFP

Even then, he went much further than his fellow conservative justices, saying he thought the court should review the rights to contraception or same-sex marriage.

Brett Kavanaugh, 57, the second justice named by Donald Trump during his single term presidency, entered the court in 2018 tainted by accusations that he committed sexual assault as a young man - claims he vigorously denied during his confirmation hearings, but which have followed him in his first years on the bench.

He has generally sided with the conservative bloc on rulings, but frequently adds his own arguments and interpretation to add legal nuances.

The death of liberal feminist champion Ruth Bader Ginsburg opened the door for Trump to appoint a third justice, and he chose another woman.

But Amy Coney Barrett hews to the right and solidified the conservatives’ 6-3 majority on the court.

The fervent Catholic, 50, is the mother of seven children and brings a commitment to both the legal views of American religious conservatives and the “power of prayer.”

People gather in Union Square, New York City, to protest against the recent Supreme Court ruling overturning Roe v. Wade. Picture: Spencer Platt/Getty Images/AFP

NEW YORK RUSHES TO ENSHRINE ABORTION RIGHTS

The US state of New York has moved to enshrine abortion rights and access to contraception in its constitution, becoming a vanguard in the pushback against the seismic ruling by the country’s Supreme Court that up-ended reproductive rights nationwide.

The state Senate “advanced the first passage of an amendment to codify the right to an abortion and the right to contraception in the State Constitution,” it said in a statement.

New York State law already permits abortions, so the move would add an extra layer of legal protection for the procedure.

The amendment also seeks to “update the existing Equal Rights Amendment to extend current protections to several new classes, including on the basis of sex, disability, national origin, ethnicity, and age,” it said.

After passing the Senate, the legislation will next go to the state Assembly, where it is expected to be passed.

Voters will then cast their ballot on it directly in a referendum.

Conservatives in the United States have been working for decades to overturn Roe v. Wade, the 1973 Supreme Court ruling that said the US constitution provides for a right to an abortion.

Sydney Abortion Solidarity protest, stand in solidarity with abortion rights protesters fighting to reinstate Roe v Wade. Picture: NCA NewsWire / Monique Harmer,

Thousands participate in the Solidarity Abortion Rights Rally in Adelaide. Picture: Brenton Edwards