A Really, Really Stupid Bill

From Democracy For Virginia, via Atrios, comes news of the dumbest bill I've heard of in quite some time. It would require that "A fetal death report for each fetal death which occurs in the Commonwealth shall be filed, on a form furnished by the State Registrar, with the registrar of the district in which the delivery occurred or the abortion was performed within three days after such delivery or abortion and shall be registered with such registrar if it has been completed and filed in accordance with this section". Moreover, "When a fetal death occurs without medical attendance, it shall be the woman's responsibility to report the death to the law-enforcement agency in the jurisdiction of which the delivery occurs within 12 hours after the delivery. A violation of this section shall be punishable as a Class 1 misdemeanor." And what, you might ask, is the penalty for a Class 1 misdemeanor? “Confinement in jail for not more than 12 months and a fine of not more than $2500, either or both.”

The most obviously bad implication of this bill is that when a woman has a miscarriage, she must stop crying for long enough to call the police and inform them of what the bill refers to as "the death" within twelve hours or face jail time. But it's actually considerably worse than that.

A fetal death certificate in Virginia requires the following information for "spontaneous fetal deaths" (see p. 11):

* place of occurrence

* usual residence of patient (mother)

* full maiden name of patient

* medical record number and social security number of patient

* hispanic origin, if any, and race of patient

* age of patient

* education of patient

* sex of fetus

* patient married to father

* previous deliveries to patient

* single or plural delivery and order of plural delivery

* date of delivery

* date of last normal menses and physician's estimate of gestation

* weight of fetus in grams

* month of pregnancy care began (sic)

* number of prenatal visits

* when fetus died

* congenital malformations, if any

* events of labor and delivery

* medical history for this pregnancy

* other history for this pregnancy

* obstetric procedures and method of delivery

* autopsy

* medical certification of cause of spontaneous fetal death

* signature of attending physician or medical examiner including title, address and date signed

* method of disposal of fetus

* signature and address of funeral director or hospital representative

* date received by registrar

* registrar's signature

* registration area and report numbers.

So: within twelve hours of a miscarriage a woman has to be prepared to cough up all that information, on pain of violating the law. How many women own a scale that measures weight in grams? And should we really force to, ahem, recover the "products of conception" in order to weigh them? And should they really have to examine those "products" in order to detect any congenital malformations that might exist? This is just ghoulish.

Moreover, the bill would require this sort of reporting regardless of the fetus' gestational age. This means that, in principle, women would be required to report all those fetal deaths that occur early on in pregnancy as a result of the embryo's failure to implant or to develop properly, often before the woman has realized that she is pregnant. The law does not say that you only have to report a fetal death that you're aware of; it says that you have to report "each fetal death which occurs in the Commonwealth", and that "it shall be the woman's responsibility to report the death". There is no exemption for ignorance. If the thought of what I so tactfully referred to as "recovering the products of conception" in order to weigh them is yucky, what are we to say about this peculiar new requirement, which would presumably require an intimate relationship with thermometers and, oh, gosh, maybe coffee filters? And I suppose that once one had found something that might be an embryo, one would then have to examine it carefully in order not only to determine whether it is or not, but to ascertain its sex and congenital malformations, if any. This would require a microscope, of course, since the object of this scrutiny might be too small to be seen with the naked eye.

Once upon a time, when people were trying to figure out which sorts of laws made sense and which did not, they had to make some pretty basic points that I would have thought we had moved beyond the need to repeat. Montesquieu, for instance, had to go to the trouble of pointing out that "laws should be constructed to make it as easy as possible for citizens to protect themselves from punishment by not committing crimes" (to quote myself), and that this required that lawmakers not criminalize things that people either did not know they had done, or could not help doing. He actually had to say that lawmakers should not, for instance, try to regulate people's dreams, or make it illegal to bump into statues of the king by accident. I would have thought that we had similarly moved beyond the time when lawmakers would be thoughtless enough to draft a law in such a way that it would expose women to criminal prosecution for failing to detect and report an early miscarriage, or heartless enough to criminalize their failure to report a late miscarriage, which is almost always a horrible event to go through, within twelve hours. But apparently not in Virginia.

***

UPDATE: The sponsor of this bill has replied here. Apparently, his intent was to deal with cases of babies who had been abandoned, since if the coroner could not determine whether the baby had been alive when it was abandoned, the mother (or whoever abandoned it) could only be charged with improper disposal of a human body. He writes that he will change the bill to apply only to such cases. I commend him for his willingness both to respond and to change the bill.

This is, needless to say, a very good thing. And not just because this bill will, thank heavens, be modified, but also because at least one legislator will, I hope, be more careful about drafting bills in the future. The laws we live by are the ones that pass, not the ones the legislator meant to write, and therefore it behooves legislators to take care that the bills they propose are the bills they intend. Otherwise, we will end up with laws whose provisions no one actually intended, but which we nonetheless have to live by; and this makes it harder for everyone to have the respect for the law which we all ought to have.

Comments

[rilkefan]

Ok, so this law is nuts. On to the quibble:

"...fetal deaths that occur early on in pregnancy as a result of the embryo's failure to implant or to develop properly, often before the woman has realized that she is pregnant."

hilzoy, IANAD, but the Am. Her. dictionary distinguishes fetus from embryo thusly:

"In humans, the unborn young from the end of the eighth week after conception to the moment of birth, as distinguished from the earlier embryo."

Non-quibbly, what's with the "Hispanic" bit?

[Anarch]

I refuse to lend credence to this particular piece of insanity by reading it, but: rilkefan, do you know if the term "fetus" (or, for that matter, "embryo") defined anywhere within Virginia's statutes? If not... I think calls of "activist judges" are overblown, but dear god, can you imagine the activism this would engender on both sides of the aisle?

[bob mcmanus]

Well, Sebastian wants some data on late term abortions. This if followed and enforced will help.

I always presume, when confronted with laws like this that the legislators simply want to provide the justice system with weapons and tools, under the presumption that said justice system, comprised of reasonable men of good will, will interpret and enforce this law very selectively, punishing only the most egregious and offensive cases, while mercifully and compassionately letting most good people alone.

This is the rule of men not law, but pragmatically is the system we live under. If you strictly enforced jaywalking, you would need a lot of cops. But someone who causes a fatal three-car pileup on main street should probably be charged.

However, this particular law has the obvious intent of ending the practice of abortion, and is likely unconstitutional under current SCOTUS guidelines. Expect injunctive relief it passes.

[CaseyL]

"Virginia is for Lovers" my ass.

I can just imagine the police force's joy at having to enforce this insane, stupid, cruel, totalitarian, piece of sh*t law.

[Jesurgislac]

I've seen this discussed elsewhere, and many women in Virginia are apparently proposing to save up their used tampons and mail them to the legislator responsible for this piece of drek, so that he can decide whether or not they ought to "report a fetal death".

(By me, I think a nice piece of satyagraha would be for every menstruating woman in Virginia to report her period to the police, every time. After all, how does she know that she might not have conceived in the 28 days since her last period, and be having a very early miscarriage? Better be safe than sorry!)

[Jesurgislac]

Bob: "comprised of reasonable men of good will"

You know, I would normally call you on that? But under the circumstances, you're quite right. A law like this could only be considered under a system comprised of men, with women relegated to the status of breeding livestock.

[blogbudsman]

Jesurgislac's recommended protest is great. Wouldn't that raise a healthy stink to be smelled across the land. Laws like that should solicit those types of responses. As far as the gender under which this seed was ejaculated, I suppose 'tis only fair. I'd like to suggest that when humans are elected to positions of 'law maker' some other determination be set to blame thier behavior on. Something more bovine than simply male or female based on the udder ridiculousness of their efforts.

[Jesurgislac]

Jesurgislac's recommended protest is great. Wouldn't that raise a healthy stink to be smelled across the land.

*high-fives you*

I'd like to suggest that when humans are elected to positions of 'law maker' some other determination be set to blame thier behavior on.

Fair point. (Sorry, Bob.)

Something more bovine than simply male or female based on the udder ridiculousness of their efforts.

*groan*

[Dianne]

This is not just a stupid bill, it is a downright evil one. Yet another reason not to move to Virginia. Hmm...I just thought of a conspiracy theory: There seems to be a lot of public stupidity issuing from the South lately. For example, the recent election in which Alabama voted not to remove the segregation laws from their books. Or the (again, Alabaman) legislator who proposed burying all "pro-homosexual" literature. And, of course, the insistence of the whole region on voting Crawford's village idiot into the White House. Perhaps it's all an attempt to annoy the rest of the country so badly that it'll forcibly eject the South from the US...and the CSA can rise again...Well, it makes as much sense as asking women who have had a miscarriage to report the miscarriage, with detailed anatomic findings, to the police.

[liberal japonicus]

Dianne
I would point you to the attempt to bring Alabama's tax system in line with Christian principles. Condemning whole swaths of the country is not productive, I think.

[Jadegold]

Virginia is a state that really provides a lot of insight into the red state-blue state dynamic. No. VA is very blue, while So. VA is deeply red. No. VA is the state's economic engine (the federal Govt, tech industries); So. VA is largely agricultural.

Guess where this odious bill's sponsor comes from?

[st]

Same guy who sponsored VA's odious anti-gay statute, by the way.

[CaseyL]

Is that the one "outlawing" gay people that passed, and then caused so much embarrasment that it was promptly repealed?

[lily]

What is the reference to "Hispanic" about? Are the fetuses of some ethnic groups more or less valuable than the fetuses of other groups? Are Hispanic women presumed to be inducing home abortions? This is a truely weird law and the ethnic reference makes it even more strange.

[smlook]

"There seems to be a lot of public stupidity issuing from the South lately."

Speaking of public stupidity...

Anyway, as someone who has had personal experience with miscarriages, I look back now and think how healthy it would have been for my family if we had treated it like a death. Since, of course it was. One of my biggest regrets is that we did not.

[Jesurgislac]

Smlook: One of my biggest regrets is that we did not.

*nods* I have friends who have suffered miscarriages, and they have often dealt with the situation by naming the baby that would have been, and mourning the loss as a death. My feeling is, whatever helps is good. (I have friends who have had early miscarriages who report that they felt no such sense that they'd suffered a death in the family, and I'm certainly not in favor of trying to force everyone into the same mold.)

But no matter what, no woman who's just had a miscarriage should be forced to report herself to the police and answer a series of detailed questions such as is described, on penalty of a prison term/fine. Really, not.

[xanax]

Sadly, I exceeded my astonishment quotient years ago with what the Neanderthals of my gender are capable of doing. Especially with regard to legislating in the domain of women's reproductive issues. Suffice to say I wholeheartedly support Jesurgislac's tampon protest idea. In fact, I'd take it a step further: Start sending the tampons NOW to the pustule proposing this legislation AND to the members of his legislative committee who might be inclined to let it out.

Give the good old boys a taste of the sh*t-storm they're in for before the boil bursts on Virginia.

[JWO]

Jadegold: You are right about the split in VA, but this guy is from Chesapeake, which is indistinguishable from VA Beach/Norfolk/Newport News, and is the second largest metropolitan area, next to no. VA. However, it is also heavily populated by the military, which may affect its coloring...and Pat Robertson's University is there. It certainly appears to be a red area, but definitely not agricultural.

[Dianne]

One strange point about this bill is that the only punishment provided for is for a woman who does not comply with it. Others (hospitals, the ME, etc) have duties under the bill, but no penalty is specified if they fail in their requirements. What's up with that?

[Fledermaus]

Let me be the first blue stater to invite all the hot chicks in VA upset by this sorry excuse for public stewardship to come join us lonely guys up north, really the winters aren't so bad. ;)

On a more serious note, having read the bill I don't see any provision for the privacy of the woman. This is a public filing and, I assume, all the information including address is available. However I really hope that it is covered by another statute. Not to mention that the three day reporting requirement is absolutely odious.

P.S. Aha! I knew it - no privacy guarantees - see here. From what I understand from this any privacy guarantee must be mentioned in the statute

[Smokey]

JWO-

I used to live in Chesapeake, and it is very much distinguishable from VA Beach/Norfolk/Newport News. It's a "city" in name only. Chesapeake is almost entirely rural/suburban, and it's a very conservative area. Not at all surprising to see something like this come out of there.

[Fledermaus]

I also just want to add that VA does have a privacy law (no free link) - but at first glance it would only protect the medical records, not the address of the mother.

[Nell Lancaster]

CaseyL asks above about Virginia's anti-gay "Nuremberg law" passed April 2004 that outlaws all kinds of contracts between gay Virginians:

Is that the one "outlawing" gay people that passed, and then caused so much embarrasment that it was promptly repealed?

It was not repealed, and it is currently theoretically in force. There is a national gay tourist boycott of Virginia, and resulting support from the Tourism Bureau and others for the law to be repealed or overturned. I do not expect any legislative efforts to repeal it to succeed. Our legislature is only in session for the next few months.

It's more likely that the law will be overturned by a court because it interferes with private contracts, but that will take quite a while. As of now, I don't know of any cases in which the law has been applied.

And Dianne: We don't need 'friends' like you.

[Nell Lancaster]

Maura at the D4VA site has an important update: Rep. Cosgrove has agreed to change the bill in response to emails and calls generated by internet activism. Please read, and Edward, please update the post.

[Dianne]

Nell: No doubt you are a far more enlightened and generally worthwhile person than me. For example, you would never take overseriously a comment meant only as teasing, however badly the comment might have come out. Nor, of course, would such a perfect person as you dismiss someone just because they said one thing you didn't like. Admittedly, the lack of context on the internet makes it harder to determine subtleties of meaning: for example, you probably aren't aware that I am a Southerner--I grew up in Louisiana and Texas. If I was condemning any group wholesale (which I wasn't), it was "us" not "them".

Nonetheless, despite your overall superiority, I can't agree with your implicit statement that Delegate Cosgrave's changes to HB1677 make everything ok, although I have a somewhat better opinion of him after reading the email in the link you posted than before. However, some problems remain:
First, I feel he is being a little disingenuous in claiming that the bill was never meant to apply to miscarriages. While it is true that the bill does not mention miscarriage, it does repeatedly refer to fetal death, without any qualifiers such as fetal death after viability, etc.
Second, does he think that it is any easier for a woman who has just suffered a stillbirth to report it to the police within twelve hours than for a woman who suffered a miscarriage at, say, 5 months gestation to do the same?
Third, while of course no one wants to allow newborn abandonment to go on, this is not the way to fight it. Why do women have miscarriages or stillbirths (or even perfectly normal births) without medical attendance? Occasionally it is because they are afraid or ashamed of the pregnancy, but usually it is because they lack health insurance or money to seek medical care. This bill would put an extra burden on women already struggling with poverty, loss, and probably some guilt.
Finally, ob is not my area, but is it really possible to tell if a woman has delivered 12 hours ago versus 6 or 16 or even 24 or 48? I can't think of any obvious way.And if not, then the bill is unenforcable with respect to its proported intent (distuingishing stillbirths from children abandoned or killed at birth): if a woman delivers a live infant then kills or abandons it all she has to do is retrieve the body after, 16 or so hours, then go to the authorities and claim to have given birth to a dead baby 10 hours ago and she'll get away with her evil act. (Well, will get away with it legally. Her conscience will punish her more effectively than any legal system could.)

[Nell Lancaster]

Dianne, I apologize for snapping at you. I'm no better a person than anyone, but don't feel that my post said or implied that I am.

My tolerance for needling, probably inadequate to begin with, has been strained by focusing a little too much on grim news, and further frayed by frequent encounters in comment sections with suggestions to write off whole parts of the country. Even in very strongly red counties all over the south, there are an absolutely large number of us blue voters. We're having a hard enough time without "Thank God I don't live there" and "let's saw them off" comments. They aren't funny and they don't help. Even so, I probably should just have ignored your comments because liberaljaponicus had said it perfectly well already.

And I'm not defending Rep. Cosgrove in the slightest. My update was to prevent anyone else responding to the legislation without knowing the current situation.

[Nell Lancaster]

Sorry, hilzoy, I missed that it was your post, not Edward's. Would you be willing to update with a link to Maura's followup post at Democracy for Virginia (in my comment above?)

[Dianne]

Nell Lancaster: I apologize for pushing your buttons and overreacting to your response. I'm afraid the only way I can cope with all the grim news is to maintain a certain amount of sarcastic humor about it all. In me, it's a late mental defense mechanism, occuring only after consideration of other viewpoints, argument, and activism have failed to make the situation tolerable. The next step is curling up in a ball and crying, and what good would that do anyone?

[hilzoy]

Neil L: done.

[votermom]

Isn't there a law that requires one to report a death, anyway? As well as a law to report births? (Seriously asking the question).

If the legislator is really concerned about saving the babies' lives, it would be better off writing legislation that would provide shelters for unwanted babies to go to (aka "safe havens").

[hilzoy]

This bill has now been withdrawn, in large part because of protests generated on blogs. This is, in my view, a much better example of what blogs can achieve than some of the more standard ones: we publicize something stupid, explain why it's stupid, people think it through and agree, thereby learning about something they wouldn't have known about otherwise, and then it gets corrected. Distributed intelligence in action.

[Dianne]

hilzoy: First, thank you for publicizing this bill and helping get it withdrawn. However, I have one little quibble: According to the link you posted, the bill hasn't been withdrawn yet, the sponsor has just said that he plans to withdraw it when it comes up for consideration in committee. Maybe this is the standard way to withdraw a bill, in which case I am being paranoid, but I can't help but worry that he's hoping to be able to slip the bill through once the publicity has died down. It might be worth following up and making sure the bill actually is withdrawn as promised.

[Nell Lancaster]

It might be worth following up and making sure the bill actually is withdrawn as promised.

Good point, Dianne. Democracy for Virginia, the original source of the alert, will be on the job, and I'll post and email here if Cosgrove or others try to sneak it back in.