Can a woman be charged with manslaughter for having an abortion in Florida? It happened before

News 6 found a case that gained nationwide attention

Before Roe v. Wade, in 1971, when most abortions were still illegal, Florida successfully charged and convicted 23-year-old Shirley Wheeler with manslaughter.

ORLANDO, Fla. – Before Roe v. Wade, in 1971, when most abortions were still illegal, Florida successfully charged and convicted 23-year-old Shirley Wheeler with manslaughter.

“He started showing me colored pictures of a fetus and asked me how I could deny that was mine. He said, ‘Just pretend like I’m your father. Why did you do it?’” Wheeler told 60 Minutes at the time.

The crime? A Daytona Beach police lieutenant believed Wheeler had received an illegal abortion.

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“The circumstances of the girl coming into the hospital with a catheter still inserted, I started proceeding along and finally found the fetus in a funeral home being prepared for cremation,” a Daytona Beach police officer told 60 Minutes.

Public records related to this case have since been destroyed by local agencies in accordance with Florida’s record retention laws, but Wheeler’s case received so much attention, it was covered fastidiously by numerous media outlets.

According to news reports at the time, the state’s argument hung on a key question: how old was the fetus when Wheeler had the abortion?

“There’s a possibility if the child had been born, it would have survived as a human being,” the DBPD officer told 60 Minutes.

That position was later challenged by other experts according to news articles, but the case continued, and according to the New York Times, Wheeler became the first woman in the U.S. convicted of manslaughter for having an abortion.

“We had already had one, if not more, young ladies almost die from an illegal abortion,” said Horace Smith, an attorney in Daytona Beach who prosecuted Wheeler’s case in 1971 and still practices law today. “The reason why the police came to me is that they didn’t want this unknown individual killing people.”

Smith told News 6 he does not have an opinion about abortion, but he believed, according to the law in 1971, Wheeler had violated the manslaughter statute.

“My job as a prosecutor was to do justice, not to represent the state or to prosecute people just to get convictions but do the right thing. As indicated, this person who was performing these illegal abortion acts needed to be taken off the street before some young lady died,” Smith told News 6.

Originally, police wanted to know who performed the abortion. “Had she been willing to give up the name of the person who performed the abortion, they would not have prosecuted her,” said Nancy Stearns, a civil rights attorney who represented Wheeler during her appeal.

“She felt like, ‘This was the one person who helped me, I’m not going to give up his name.’ I just don’t know that I would have been that strong.”

Despite four days in jail, Wheeler did not reveal who performed the abortion.

“I guess some people think it is a question of morality, but would people rather have you to have a child that you can’t raise or take care of?” Wheeler told 60 Minutes.

Lack of resources wasn’t the only reason Wheeler sought an abortion. According to numerous outlets, Wheeler had given birth before.

But the pregnancy had been difficult, and after the birth of her son, Wheeler told reporters that she developed enough long-term medical problems that doctors told her another pregnancy might kill her.

That did not stop prosecution, and Wheeler was sentenced to 2 years of probation. The judge also ordered Wheeler to marry her live-in boyfriend or leave the state of Florida.

Wheeler’s case was only vacated after the Florida Supreme Court ruled the state’s abortion law was too vague.

Listen to more in-depth details about Shirley Wheeler’s case, via Slate Media, here.

More than 50 years later, today, Florida’s law permitting abortions up to 15 weeks is currently up for appeal. So could a woman face the same charges today that Shirley Wheeler once faced?

“You’d have to see whether the state satisfied the elements that are required to prove that crime,” said Steven Kramer, a legal analyst for News 6. “That does not mean it is not going to happen, and it does not mean that it could happen, but I think it’s a lot less likely.”

Less likely in part because of another historical Florida Supreme Court decision.

In 1994, a St. Petersburg woman shot herself in the womb in an attempt to end her pregnancy.

She was charged with manslaughter and the case made it all the way up to the Florida Supreme Court.

In 1997, Florida’s justices ruled that women cannot be held criminally responsible for any behavior that might affect the health of their fetus, and the St. Petersburg case was thrown out.

While women might not be charged here in Florida, News 6 found it is happening in other states.

  • 2022 – In Texas, a woman was charged with murder for self-aborting her fetus. She was held at a $500,000 bond, before the charges were abruptly dropped.
  • 2021 – In Oklahoma, a 21-year-old woman was convicted of manslaughter and sentenced to four years in prison when she miscarried at four months. Prosecutors argued she used illicit substances, despite zero evidence that the substance caused her miscarriage.
  • 2019 – In California, a woman was charged with murder when she gave birth to a stillborn. Prosecutors argued the woman had allegedly used illicit substances while pregnant. The case was dropped after she spent 16 months in jail, awaiting trial.
  • 2015 – A ProPublica and AL.com investigation revealed “476 new or expecting mothers” were prosecuted under Alabama’s chemical endangerment law, a 2006 statute that was originally meant to target at-home drug labs during the state’s methamphetamine crisis.
  • 2012 – A Long Island woman was sentenced to nine years in prison for manslaughter, a charge which stemmed from a 2008 car accident. The woman was 34 weeks pregnant at the time of the crash. Her baby was delivered by emergency C-section, but died. The woman’s case was ultimately overturned in 2015 by New York’s highest court.

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About the Author:

Award-winning investigative reporter Merris Badcock joined the News 6 team in October 2020. Merris is the recipient of a Regional Edward R. Murrow Award, a Suncoast Regional Emmy Award, four Suncoast Emmy Regional nominations, and two first-place Florida Association of Broadcast Journalists’ Awards.