Legislation on stillbirths entangled in abortion fight

June 4, 2007

SACRAMENTO – A move to provide solace for grieving families of stillborn children has become embroiled in the battle over abortion.

“It's incomprehensible that this is political,” said Kirsten Pert of San Clemente, whose daughter, Emma, arrived stillborn last year. “This is about the compassionate, dignified and right thing to do.”

Pert is one of a growing number of mothers pressing California lawmakers to adopt legislation that would allow the state to issue a “certificate of stillbirth” recognizing their loss.

There are about 3,000 stillbirths every year in California, according to state statistics. Under the law, birth certificates cannot be issued for stillbirths – only fetal death certificates.

Supporters and opponents of abortion rights, both of which carry considerable weight in the Capitol, have faced off over the measure.

Abortion-rights supporters led by the American Civil Liberties Union and Planned Parenthood initially protested, arguing that the bill could be used to weaken abortion rights. Amendments to alleviate their concerns were inserted into the legislation.

In turn, abortion opponents led by the Capitol Resource Institute and the California ProLife Council weighed in with new objections that the amendments would affirm abortion on demand. They withdrew support for the bill.

Caught in the middle is state Sen. Abel Maldonado, a Santa Maria Republican carrying SB 850. He has delayed a floor vote while trying to appease both sides, but with bill deadlines approaching the Senate may take it up as early as today.

A key section of the bill, which supporters say makes it clear that abortion law would not be affected, defines still birth as “the delivery of a fetus where there was a naturally occurring intrauterine fetal death after a gestational age of not less than 20 completed weeks.”

The measure goes on, however, to state that it is the “intent of the Legislature to reaffirm” existing laws and court decisions upholding a woman's right to an abortion.

The certificate the law would make possible, Maldonado said, “is a hug from California for grieving mothers.”

One of those is Sarah McMullen of Spring Valley. She enjoyed a “picture perfect” pregnancy for 34 weeks until a routine checkup revealed a mother's nightmare.

“There was no heartbeat,” said McMullen, whose son, Miles, was stillborn the next day.

The arrival of a fetal death certificate and the denial of any official certificate of stillbirth only compounded the tragedy, said McMullen, a San Diego library clerk.

“This is all I get? I don't get anything else?” she recalls wondering in frustration.

Mothers say a certificate would be more than a piece of paper.

“It's acknowledging what I went through. That I labored. That I gave birth,” McMullen said.

Said Pert, “What we're looking for is recognition for us and for our child.”

Abortion-rights Democrats hold majorities in both houses of the Legislature, making it likely that the measure could reach the governor's desk over opposition from Republicans, most of whom oppose abortion. Gov. Arnold Schwarzenegger, a Republican who supports abortion rights, has not taken a position on the bill.

Maldonado suggested he probably will push ahead even if support from fellow Republicans peels away.

“At this moment, my heart tells me to help these women get a certificate of stillbirth,” he said. “After delivering a stillborn baby, the only thing they have in their hands is a certificate of fetal death. They ought to have something in their hands that proves there was life.”

In doing so, Maldonado risks alienating conservative supporters demanding narrower language.

The California ProLife Council has withdrawn its earlier support, arguing the revised measure is tantamount to an affirmation of Roe v. Wade, the U.S. Supreme Court's landmark decision that legalized abortion. The bill also would make it more difficult to limit government funding of abortions and to pass parental consent laws at the state level, the group believes.

“In our view, no pro-life lawmaker can, in good conscience, vote for this radical pro-abortion hijacking of an otherwise decent bill,” Dan Dellinger, the council's Sacramento-based lobbyist, wrote in a letter of opposition.

Sen. George Runner, R-Lancaster, said he will listen to that advice, although his sympathies are with the families. As an assemblyman, Runner carried a similar measure several years ago, but abandoned it rather than agree to wording that he said was biased in favor of abortion rights.

“It's a very important recognition for them in the healing process,” Runner said. “The zealots on the pro-abortion side are just fearful of giving that kind of recognition to the birth of a stillborn. They do not want to recognize that as a child.”

Valerie Small-Navarro, an ACLU lobbyist, said the organization wants to ensure that the language of the measure could not be cited later as precedent to limit a woman's reproductive rights.

“The language was inserted into the bill to make it absolutely clear that it was not going to affect reproductive freedom,” Small-Navarro said.

Planned Parenthood spokeswoman Ana Sandoval described the amended bill as “good middle ground.”

“We wanted to give the recognition to women while at the same time making sure there aren't any unintended consequences,” Sandoval said.

The controversy is not unique to California. Nearly 20 other states have enacted similar certificates of stillbirth. Abortion was at the forefront of the debate in some states.

In New Mexico, Bill Richardson, a Democrat and presidential candidate, this year became the only governor to veto a similar measure. In news reports, he cited “confusion and potential fraud” because the certificate could lead to two different documents and potentially pave the way for identity theft. The Republican author of the measure, Sen. Leonard Lee Rawson of Las Cruces, claimed the governor buckled to pressure from abortion-rights activists.

The national movement toward recognizing stillborns with certificates was started in 1996 by Joanne Cacciatore, an Arizona mother who lost her daughter, Cheyenne.

“It's incredibly frustrating that families of stillborn children get thrust into this political debate,” said Cacciatore, who launched a foundation called Mothers in Sympathy and Support.

“These families are being used as pawns.”