Concealing Birth and Abuse of Corpse Charges Based on Taking Labor-Inducing Medication (AR)

Arkansas v. Anne Bynum

Pregnancy Justice represented Anne Bynum as counsel on her successful direct criminal appeal. In Arkansas, local law enforcement alleged that Ms. Bynum took misoprostol pills to induce an abortion (although in fact she planned to deliver the baby, and had an adoption plan in place) . Her pregnancy ended in a stillbirth late at night while she was in her home . Following the stillbirth, she safeguarded the remains and slept for several hours before helping to get her son ready and off to school. Investigators say that several hours after that, she went to the hospital. She brought the fetal remains with her and asked to see a doctor. Ms. Bynum was arrested five days later on charges of concealing a birth, a class D felon y punishable by up to six years in prison and a fine of up to $10,000, and abuse of a corps e, a class C felony punishable by up to ten years in prison and a fine of up to $10,000. Both o f these statutes are from the 1800’s and are rarely used; the laws are examples of the broad range of statutes available to prosecutors intent on finding laws they can use to prosecute women who have – or are perceived as having – abortions.

Ms. Bynum’s case went to trial before a jury made up entirely of people known to oppose abortion in all circumstances (including rape and incest). At trial, the prosecutor introduced (and the court allowed) highly prejudicial evidence about Ms. Bynum’s past pregnancies and outcomes including abortion. Although Ms. Bynum succeeded in persuading the judge to issue a directed verdict in her favor on the more serious charge, abuse of a corpse, the judge allowed the jury to consider the charge of concealing a birth and allowed extensive evidence and prosecutorial comments about Ms. Bynum’s sexual history, pregnancy and character. The jury convicted Ms. Bynum of the charge after deliberating for just four minutes and sentenced her to six years in prison.

Pregnancy Justice represented Ms. Bynum on her appeal, and in preparing her appeal sought and received Amicus support from the National Perinatal Association who moved the Appeals Court for permission to file an amicus curiae brief in support of Ms. Bynum. However, in what felt to us like a telescoping of what was to come, the court denied the application for Amicus support. On March 14, 2018, the three-judge panel ruled unanimously, reversing the conviction based on the trial court’s abuse of discretion in allowing in evidence related to abortion history and the ingestion of misoprostol and the resulting prejudice to Ms. Bynum. The court remanded, giving the prosecution 12 months to decide whether to retry the case. The Court of Appeals ruled that most constitutional issues were not adequately raised or preserved by trial counsel, so it did not address these issues, but did rule against Ms. Bynum on one constitutional claim. The court read the statute literally and found her right to due process ͞"fair warning" ͟of what the statute covers was not violated because the law has no explicit time frame for how quickly a woman must tell someone after experiencing a stillbirth, so that ͞concealing birth ͟can happen in an instant.  The remand permitted the prosecution 12 months to decide whether to retry the case. Although the State initially went forward with a new prosecution, after the appeal process highlighted the legal problems with the Concealing a Birth statute, the State agreed to fully resolve the case in November 2018 with a plea to a non-criminal offence of attempted obstruction of governmental administration with no fine and no jail time imposed.


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