Even though the Roe v. Wade and Doe v. Bolton decisions should be reversed and abortion should be outlawed in the United States, a mother should not be held criminally liable simply because her child was miscarried or stillborn. In order to hold the mother criminally liable for the death of a baby who was not born alive, the prosecution should be required by law to prove beyond a reasonable doubt that the death of the baby was caused by the voluntary commission of a criminal offense by the mother, that the criminal offense was committed with the knowledge that the conduct would result in the death of her unborn child, that the unborn child was not killed against the will of the mother, and that the death is not the result of a legal abortion.
The primary purpose of anti-feticide laws or fetal homicide laws is to hold an individual who causes the death of an unborn child through an act of violence against his or her mother responsible for the death of the unborn child in addition to the act of violence against his or her mother. Legal abortion procedures are currently excluded from the applicability of these anti-feticide laws, and most of the states that have these anti-feticide laws also currently exclude the death of an unborn child that is caused by the conduct of his or her mother. Although the United States Supreme Court had decided that unborn children do not have a constitutionally guaranteed right to life prior to birth in the Roe v. Wade case, an unborn child does have a legal right to be protected against being killed illegally against the will of his or her mother in some states under anti-feticide laws.
Purvi Patel was recently convicted under Indiana’s anti-feticide law as a result of the death of her unborn child. The majority of Americans do agree that a mother should not be arrested or subject to criminal prosecution simply because the pregnancy resulted in a miscarriage or stillbirth. Purvi Patel should not have been held criminally liable for the death of her child solely because of the death of her child, nor should she have been held criminally liable for her child’s death simply because she did not want to be pregnant. Law enforcement should have been required to establish probable cause showing that Purvi Patel had broken Indiana’s feticide law through evidence other than the dead body of her child prior to arresting her. In addition, Purvi Patel should not have been convicted under Indiana’s feticide law unless the criminal prosecution had actually proven beyond a reasonable doubt that she had actually violated Indiana’s anti-feticide law.
Although abortion, feticide, and infanticide should all be illegal, the law should protect the mother of a stillborn or miscarried baby from being arrested or criminally prosecuted solely on the basis of a pregnancy that ended in a natural miscarriage or in a stillbirth, even in cases where such a pregnancy was unplanned or unwanted by the mother. In addition, appropriate support should be given to women who have grieved the loss of an aborted, miscarried, or stillborn child, and those women who are in unplanned or unwanted pregnancies should be encouraged to have their babies and should be given the necessary support to do so.