In March 2022, various anti-abortion websites misleadingly reported that a pair of bills being considered by the Maryland state legislature would legalize infanticide.
“ACLJ Warns Proposed Maryland Senate Bill ‘Could Legalize Infanticide Up to 28 Days After Birth,'” reported the Christian Broadcasting Network (CBN) website, referring to the anti-abortion legal advocacy group American Center for Law and Justice. “Inhumane: Maryland bill allows killing babies up to 1 month after birth,” the Christian Post reported.
At issue are two proposed laws that, if enacted, would fortify the right to abortion in Maryland. Why now? The U.S. Supreme Court is set to rule on a challenge to the landmark 1973 Roe v. Wade decision in June 2022, and in the lead-up, states with Republican leadership have taken it upon themselves to pass stringent limitations on abortion access. Texas, for example, has effectively banned abortion with an enforcement mechanism that lets citizens sue health care providers and others for helping someone acquire an abortion after about six weeks’ gestation. Democrat-dominated states, meanwhile, have passed laws codifying abortion rights.
Maryland falls into the latter category. Its legislature is considering two bills: one titled Declaration of Rights – Right to Reproductive Liberty, and a second titled the Pregnant Person’s Freedom Act of 2022. The first measure would ask voters to amend the Maryland state constitution to include reproductive freedom, and the second would protect a pregnant person or health care provider from criminal prosecution or civil liability for ending a pregnancy or for pregnancy loss.
We reached out to ACLJ asking why the organization believes the Maryland bills could allow infant homicide up to 28 days after birth. Olivia Summers, associate counsel for the group, said in an email that at issue is the use of the word “perinatal” in the Pregnant Persons Freedom Act, and the fact that it allows people to seek damages if they are investigated or arrested for pregnancy termination, a miscarriage or stillbirth, or for helping a person terminate their pregnancy.
The ICD-10 (the International Statistical Classification of Diseases and Related Health Problems), a reference guide for doctors classifying health terms and conditions, defines the term “perinatal” as “the time period starting at 22 completed weeks (154 days) gestation and lasting through seven days after birth.”
Summers told Snopes:
These sections in these bill are problematic not only because of the use of the phrases “perinatal death,” and “related to a failure to act,” but also because the sections assume knowledge on the part of investigators.
As we have detailed, the term “perinatal” is used to describe a period of time that encompasses pre and post-birth (in reference to infants and mothers). In most instances, this term covers from roughly 28 weeks of pregnancy to anywhere from one to four weeks post birth. This is why we are deeply concerned about infants from birth to four-weeks post-birth.
Summers stated that because the text of the bill assumes law enforcement would know a person is protected by the law before beginning an investigation into a death, it could place potential investigators in jeopardy of being held liable, thus putting a chill on investigations into infant deaths. She also stated the word “perinatal” is used ambiguously in the bill, but the “the most commonly used description is the period from 21-28 weeks gestation to 1-4 weeks post-birth.”
We reached out to the bill’s sponsor, Delegate Nicole Williams, who told us that the bill would not legalize infant homicide in Maryland, nor is that the bill’s intent.
“It does not allow the killing of a baby,” Williams told Snopes in a phone interview. “That would be a homicide if that occurred. This bill doesn’t seek to modify any of our laws” on homicide.
The intent of the bill, Williams said, was to protect pregnant people from being criminally charged or held liable in civil court in the event they terminate their pregnancies or experience pregnancy loss in the form of miscarriages or stillbirths.
Williams said the bill is meant to prevent in Maryland the occurrence of cases like that of Brittney Poolaw, an Oklahoma woman who was charged and convicted of first degree manslaughter after having a miscarriage. Poolaw, a member of the Wichita Native American community, was accused of taking methamphetamine during her pregnancy.
Prosecutors blamed the pregnancy loss on her drug use, even though there was evidence other factors could have caused the loss. An autopsy of Poolaw’s fetus showed other conditions, including a congenital abnormality, and a complication in which the placenta detaches from the womb called placenta abruption, could have caused the miscarriage.
In another high-profile case, Purvi Patel was arrested in 2013 in Indiana after prosecutors alleged she took pills purchased online to end her pregnancy in roughly the 23rd or 24th week. She delivered a premature infant that took at least one breath before dying. She put the body in a trash can outside her family’s restaurant, per the Associated Press. Patel’s attorneys stated Patel thought she was much earlier in her pregnancy, and furthermore, no trace of the substance prosecutors alleged caused the miscarriage was found in her system.
Judges threw out convictions against both Patel and Adora Perez, a California woman who faced a similar criminal conviction. The judges in both cases ruled prosecutors misused laws intended to prosecute third parties who cause pregnant women to lose their pregnancies, not the pregnant women themselves who lose or terminate their own pregnancies.
We spoke to Alina Salganicoff, senior vice president and director of women’s health policy at the Kaiser Family Foundation (KFF), a non-profit that analyzes health policy. Salganicoff said she doesn’t believe the Maryland bills would legalize the homicide of infants, if passed.
“I don’t see that this would do anything to affect the fact that it’s a crime to murder someone,” Salganicoff said in a phone interview with Snopes. “It’s not going to make homicide legal. That’s not the point of this — it’s making sure people who have abortions and those who provide abortion services in Maryland are not criminalized.”
Both the Maryland bills are currently under committee review. Williams sent Snopes documents showing that the language of the Pregnant Person’s Freedom Act has been modified to clarify that the bill is referencing pregnancy loss caused by an “act or omission during the pregnancy.”
Douglas, Erin and Carla Astudillo. “We Annotated Texas’ near-Total Abortion Ban. Here’s What the Law Says about Enforcement.” The Texas Tribune, 10 Sept. 2021, https://www.texastribune.org/2021/09/10/texas-abortion-law-ban-enforcement/.
“California Mother’s Conviction for Fetal Death Overturned.” Abc10.com, 9 Mar. 2022, https://www.abc10.com/article/news/local/california/california-mothers-conviction-fetal-death-overturned/103-7d694daa-5069-4259-a1e2-56c277a1e6e0.
“Group Decries Sentencing of Oklahoma Woman for Miscarriage.” AP NEWS, 18 Oct. 2021, https://apnews.com/article/health-oklahoma-sentencing-3f6317fecc27d5c5081cb011b202745c.
Klibanoff, Eleanor. “Supreme Court Again Declines to Intervene in Challenge to Texas Abortion Law.” The Texas Tribune, 20 Jan. 2022, https://www.texastribune.org/2022/01/20/supreme-court-texas-abortion-law-challenge/.
“Manslaughter Conviction of 21-Year-Old Oklahoma Woman Who Suffered Miscarriage Sparks Outcry.” CBS News, 20 Oct. 2021, https://www.cbsnews.com/news/brittany-poolaw-manslaughter-miscarriage-pregnancy/. Accessed 28 Mar. 2022.
Sobel, Laurie, et al. “Abortion at SCOTUS: Dobbs v. Jackson Women’s Health.” KFF, 2 Nov. 2021, https://www.kff.org/womens-health-policy/issue-brief/abortion-at-scotus-dobbs-v-jackson-womens-health/.
Valenti, Jessica. “It Isn’t Justice for Purvi Patel to Serve 20 Years in Prison for an Abortion.” The Guardian, 2 Apr. 2015, https://www.theguardian.com/commentisfree/2015/apr/02/it-isnt-justice-for-purvi-patel-to-serve-20-years-in-prison-for-an-abortion.“Purvi Patel Is Released after Feticide Conviction Overturned.” Associated Press, 1 Sept. 2016, https://www.indystar.com/story/news/crime/2016/09/01/purvi-patel-releases-feticide-conviction-overturned/89707582/. Accessed 29 Mar. 2022.