Is a Stillbirth an Act of Murder? Maryland Law Says So

Christy Lynn Freeman, a 37-year-old, Ocean City, Md., woman, was recently charged with murder after delivering a stillborn child under Maryland's as-yet-untested Viable Fetus Act of 2005.

Worcester County prosecutor Joel J. Todd charged Freeman with murder and a district court judge held her without bail for allegedly performing her own late-term abortion. Though these charges were eventually dropped, Freeman's case illustrates the coercive potential of legislation that gives fetuses rights at the expense of women.

Freeman arrived at Atlantic General Hospital by ambulance on July 26, bleeding profusely. She denied that she had ever been pregnant, but doctors found a placenta and an umbilical cord inside her body. Later, she admitted that she had given birth to a stillborn fetus at home.

After questioning Freeman at the hospital, police searched her home and found the recently stillborn infant and three older sets of fetal remains in and around her property.

The medical examiner's preliminary report confirmed Freeman's story that the 26-week-old fetus was born dead. Nevertheless, Freeman was charged with first- and second-degree murder and manslaughter for allegedly inducing the stillbirth.

Maryland's Viable Fetus Act provides for prosecution for the murder of a viable fetus if the perpetrator "intended to cause the death of the viable fetus, intended to cause serious physical injury to the viable fetus, or wantonly or recklessly disregarded the likelihood that the person's actions would cause the death of or serious physical injury to the viable fetus."

The prosecutor maintained that Freeman's self-abortion "wantonly or recklessly disregarded" the possibility that her actions would kill the fetus.

However, even if Freeman induced a self-abortion, the law explicitly exempts pregnant women who kill their own fetuses. "Nothing in this section applies to an act or failure to act of a pregnant woman with regard to her own fetus," the statute reads.

On July 31, the authorities announced that Freeman admitted to killing at least one live infant that she delivered in secret several years ago.

Prosecutors dismissed the murder charges for the stillbirth on August 2. She is now facing ordinary murder charges for killing a live infant. Although prosecutor Joel Todd told reporters that Freeman was being charged for killing an infant born alive in 2003, the charging document says that the infant died in 2004. (Todd's spokesperson could not be reached for comment.)

Thirty-six states have some kind of fetal homicide law on the books. While Maryland's law applies only to viable fetuses, at least 15 states extend fetal homicide protection from conception. In state legislatures around the country, anti-abortionists have fought for laws that recognize the killing of fetuses as criminal acts on the grounds that full-fledged personhood begins in utero.

Freeman isn't the only woman to face murder charges for a pregnancy loss. Theresa Lee Hernandez of Oklahoma has spent the last three years in jail awaiting trial for "murder" after a late-term pregnancy loss. Her son was stillborn at 32 weeks gestation. When the son tested positive for methamphetamine, Hernandez was charged with murder.

In June, National Advocates for Pregnant Women sent an open letter to Oklahoma District Attorney David Prater, urging him to drop the charges against Hernandez. Signatories included the Oklahoma State Medical Association and the America Public Health Association. Prater issued a statement that he had no intention of dropping the charges.

In the wake of the Freeman case, some abortion foes are calling for Maryland to eliminate the maternal exemption. An editorial in the August 7 Washington Times lamented the Maryland law's exclusion for pregnant women as evidence of the "lock of abortionism on American government and a reflection of the continued unprotection of the unborn."

It would have been fitting if Christy Freeman's case had been the first legal test of the Viable Fetus Act. Proponents of the legislation insist that these bills protect women from abuse, rather than restrict access to abortion. Yet, Freeman's case shows how prosecutors can use such laws to punish a "misbehaving" pregnant woman and criminalize a kind of abortion in the process.

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