Indiana's Gift to Mothers: Murder Charges for Miscarriages

Within days of Mothers Day, the Indiana Supreme Court denied Bei Bei Shuai’s motion for transfer. In so doing, they upheld the ruling of a mid-level appellate court, which says that feticide and fetal murder laws, intended to punish people who hurt pregnant women and cause them to miscarry, may be used against a pregnant woman herself. In a staggering disregard for medical expertise, the Indiana Supreme Court ignored five amicus curiae (friend of the court) briefs from over 80 organizations, ruling instead that suicide should be a public health issue for everyone else, but a criminal matter for pregnant women.

This case is not just about one woman. Legal cases set precedent for everyone. Most obviously this case sets terrible precedent for pregnant women who have mental health problems. This means that a woman can be arrested and tried for attempted feticide or murder if she cannot put her depression on hold until after she gives birth. Unfortunately, pregnant women do not have any more control over their experiences of depression and suicidal ideation than do other people.

Now, in Indiana pregnant women have been singled out for punishment. But let me be absolutely clear about what this means for women who do things that might expose their fertilized eggs, embryos or fetuses to risk, who experience pregnancy loss, or who try to terminate a pregnancy.

People wrongly believe that our criminal laws require the state to prove that a person, in their heart, intended to cause the outcome: pregnancy risk or loss. But in Indiana, law only requires that you intended to do the act (attempt suicide) or knowingly did the act (knew that she was attempting suicide while pregnant).

This means that any time a woman, knowing she is pregnant, does or fails to do something (like refusing cesarean surgery or failing to follow a doctor’s recommendation for bed rest) she could be charged with a crime. This means that any miscarriage that occurs under “suspicious circumstances”—including pregnancy losses whether met with a sigh of relief by women unprepared for a pregnancy or extraordinary pain for the loss of a deeply wanted child—can become a criminal investigation and conviction with a potential life sentence (45 years). And it unquestionably means that a pregnant woman who lives in a place where abortion is inaccessible and tries to take control of her life by terminating her own pregnancy can be tried for murder.

I am pleased to report that this week, after a year of incarceration, Ms. Shuai was finally released from incarceration in a Marion County jail cell. She is far from free, however. Her release from required raising and posting a $5,000 bond—half of which will never be returned. She must also wear an electronic monitor which tracks her movements at all times, and which she must pay for herself at a cost of $12 per day. She is not free of the serious criminal charges, or the upcoming ordeal of a murder trial in which every aspect of the most unimaginably painful time in her life will be recounted in open court and twisted to cast her as a cold-blooded baby killer.

Unimaginable pain is a gross understatement for the layer upon layer of tragedy that Bei Bei Shuai has endured. Like the dozens of pregnant women who attempt suicide each year, Bei Bei Shuai never intended to survive her suicide attempt. The anguish she must have felt to try to end her own life was rivaled only by that of realizing that her attempt has failed and she must continue to live. And then to have her one hope for the future, her baby daughter Angel, snatched away from her is a grief so huge it could destroy even the most mentally healthy person. To now drag her through a trial for murder is an unspeakable cruelty. Angel is gone, and nobody in the world feels that more intimately than her mother, who underwent cesarean surgery to give her life and held her in her arms as she passed away. Justice demands that the state drop the charges against Ms. Shuai. Nothing will be gained by this case except the destruction of the life of a woman who has already survived the impossible and a judicially-created law that will treat women who have suffered pregnancy losses as no different from vicious murderers.

But beyond the impact that this will have on one woman’s life is the implication that it has for any woman of childbearing age. At a recent protest against the War on Women, I saw a sign that said “We won’t go back to the back alley.” Indiana’s message to us is that even if we manage to survive the back alley, we have the prison cell to look forward to.

You can make a difference: Sign the petition demanding that charges against Ms. Shuai be dropped.