Proposed ‘Foetal Homicide’ Laws an Attack on Women’s Right to Choose

By Zoe Bush

First published on The Body Politic Australia

The proposed ‘foetal homicide’ laws recently announced by the WA state government have sparked an outcry of concern from the feminist community, with many condemning the proposed legislation as a dangerous precedent for outlawing abortion.

The proposed laws would make causing death or grievous bodily harm to a foetus through an unlawful assault on a pregnant woman punishable with a maximum penalty of life imprisonment. Dangerous driving causing the death of a foetus in a pregnant woman would carry a maximum sentence of 20 years.

When announcing the proposed laws, Attorney-General Christian Porter emphasised that the laws aim to reflect “the extreme emotional trauma such a loss can cause to the mother”, while providing assurance that the changes would not affect current abortion laws.

However, even the title of ‘foetal homicide’ would suggest that this is not the case.

The focus is placed on the harm caused to the foetus, rather than “the extreme emotional trauma” experienced by a pregnant woman in such cases. In addition, use of the word homicide works to equate the foetus with a human being – a strategy that has all too often been used by anti-choice activists to deny women the right to choose.

Feminists aren’t the only ones who believe the proposed legislation sets a precedent for the outlawing of abortion.

Right to Life president Peter O’Meara has stated his belief that the new laws are the beginning of changes which would see abortion outlawed and also recognised as “homicide in the womb”.

Just as alarming is how the Australian Medical Association (AMA) has used the laws as an opportunity to try to punish and further restrict the reproductive choices and freedom of women. WA branch president Dave Mountain recently supported the proposed legislation and expressed a desire for it to be extendedto “criminal penalties for cases where homebirth or drug or alcohol consumption by pregnant women harm a baby”.

As recently stated by Perth-based women’s rights doctor Kamala Emanuel, “ordinarily, no woman would intentionally harm her baby. In the situations referred to by Dr Mountain, women require social or medical assistance, not criminal sanctions.”

Similar attacks on women’s right to choose have produced devastating effects in the United States. Take the case of a woman in Iowa who had her baby removed by the state because she had “paid no attention to the nutritional value of the food she ate during pregnancy”, despite no actual harm being caused to the infant.

Or take the case of a Michigan woman sued by her husband for prenatal negligence for taking tetracycline during  pregnancy, causing the discolouring of their son’s teeth – a drug which had been prescribed by her doctor.

Or the woman from Illinois taken to court by her husband on accusations of damaging her daughter’s intestine during her pregnancy in a car accident where she was not even the driver.

These are devastating and horribly unjust situations that have resulted from laws that have placed the rights of a pregnant woman as equal, or lesser than, those of the foetus.

While it is necessary that the law does recognise the “extreme emotional trauma” suffered by pregnant women who suffer miscarriages at the hands of assault, let’s ensure that the emphasis is actually on recognising this trauma. As commented by Emanuel, “women in violent relationships typically experience more violence while pregnant…”

“We do need to provide social and legal protection for pregnant women, but not in a way that paves the way to deny women their rights in other contexts.”

The proposed legislation poses a great threat to women’s already precarious abortion rights. For women to retain their fundamental right to control their own bodies, it is essential that the wording of the legislation does not cast the rights of a foetus over those of a pregnant woman, and so avoids creating a precedent that could make abortion unattainable for WA women.

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