Stillborn laws entangled in abortion debate

“My stillborn baby was the prettiest baby of all of my five children. She looked perfect. She was so well-nourished she had rolls of fat around her cheeks and knees. But she never took a breath and never made a sound,” said Arizona resident Joanne Cacciatore.

“After I left the hospital, I got her death certificate in the mail, and they told me state law required me to bury or cremate the body,” Cacciatore said. But Arizona never issued a birth certificate. “How can you have a death, if you never have a birth?” she asked.

Thirteen years ago, after the stillbirth of her daughter Cheyenne, Cacciatore set out to change her state’s policy and launched a nationwide organization of parents seeking state-issued birth certificates for stillborn babies.

In 2001, Arizona became the first state to enact a law giving parents the option of receiving a certificate of birth for a stillborn baby.

Largely through the efforts of Cacciatore’s grassroots organization — the MISS Foundation — 20 states now offer parents of stillborn babies the option of an official birth certificate -- 19 by law and one, Georgia, by administrative policy. Of those states, Arizona, Indiana and Missouri also provide state income-tax deductions for the year of the stillbirth to help defray burial expenses. In the laws, the gestation period at which a fetal death is considered a stillbirth rather than a miscarriage varies among states, with some starting as early as 20 weeks.

This year, seven more states — Alaska, California, New Hampshire, New York, North Carolina, Pennsylvania and Rhode Island — are considering similar measures. Montana Gov. Brian Schweitzer (D) signed a stillbirth law May 8. 

But the movement has hit a political snag in some states, where abortion-rights activists have taken an interest in the issue because they say the laws could be hijacked by anti-abortion forces to establish so-called fetal personhood and erode a woman’s right to abortion. Doctors and public health officials also have expressed concern that the official documents could complicate states’ collection of vital statistics on births and fetal and infant deaths.

“By giving parents a birth certificate for stillborn babies, you’re changing the definition of a stillbirth and potentially recognizing the personhood of the fetus,” said Charlotte Newhart of the California National Organization for Women (NOW).

While NOW supports women’s efforts to get birth certificates for stillborn babies, Newhart said the California chapter had registered concerns that anti-abortion activists could use language in the original bill to undermine the U.S. Supreme Court’s landmark 1973 decision establishing a woman’s right to abortion.

To get around the abortion issue, California lawmakers amended the stillbirth bill to call the document a “certificate of still birth,” rather than a “certificate of birth.”  Lawmakers also added a clause affirming the California Constitution’s guarantee of a woman’s right to abortion.

The bill, which met with bitter debate when it was originally proposed, now has been approved by two Senate committees and is scheduled for further Senate hearings May 17.  NOW currently supports the bill, Newhart said.

The California Medical Association also raised concerns the additional document would conflict with vital statistics on fetal death and infant mortality. As a result, lawmakers added language ensuring the certificates could not be used for recordkeeping, identification or any other government purpose.

In New Mexico last month, Democratic governor and presidential hopeful Bill Richardson expressed similar worries when he vetoed a stillbirth bill that had near-unanimous approval of state lawmakers. “Having two documents for a single vital event can lead to confusion and potential fraud,” he wrote in his veto letter.

Advocates for the bill questioned his motives, accusing the governor of politicizing a measure intended to assuage grieving mothers. Richard Olsen of the National Stillbirth Society, a group advocating more research into the causes of stillbirth, said Richardson’s veto was the result of “political pandering” and called it “an insensitive act that marginalizes women.”

The MISS Foundation criticizes abortion-rights groups’ involvement in the legislation. “The fact that women are not standing behind all women’s choices is really troublesome to me. This is not an abortion issue,” Cacciatore said.

But abortion-rights activists deny any opposition to the stillbirth laws.

“We are not opposing these bills. We are an organization that seeks to protect women’s ability to make their own choices throughout their pregnancy. If they want to have a certificate of stillbirth, we support them,” said Sondra Goldschein of the ACLU. 

Representatives of national abortion-rights organizations, including the Guttmacher Institute, the Center for Reproductive Rights, Planned Parenthood Federation of America, the ACLU Reproductive Freedom Project and NARAL Pro-Choice America told Stateline.org they take a neutral position on the stillborn birth-certificate issue.

Still, state-level activists are working with lawmakers to ensure the bills do not contain language that could be used to restrict abortion access, said Melody Drnach, vice president of NOW. Unless stillbirth laws are carefully worded, they could have the “unintended consequence of compromising a woman’s rights,” she said.