Fetal Personhood

[farchivist.livejournal.com]

One of the prime arguments that has been given in the debate of granting legal personhood to the fetus is that the rights of the fetus are the equivalent, if not in some cases superior, to the rights of the parents. Call it the argument of "In defense of the children!" Yet rarely discussed by fetal personhood proponents are the possible unintended consequences of that personhood: that a woman could be incarcerated or otherwise forced against her will to bear a child. The fetal personhood proponents state that such no court would do such a thing, that it would never be allowed to stand.

Except, it already has.

Last March, Florida resident Samantha Burton was in week 25 of her pregnancy when she paid a visit to her doctor. Burton was showing signs of potential miscarriage, so her physician ordered bed rest. Burton explained that, as a working mother of two toddlers, bed rest simply wasn't a viable option and then proceeded to ask for a second medical opinion. Seems reasonable, right?

Her doctor, however, was having none of that. Rather than refer Burton for the desired second opinion, he instead felt it necessary to contact state authorities, who then proceeded to force Burton to be admitted to Tallahassee Memorial Hospital against her will and undergo any procedure the doctor felt like prescribing. When Burton had the audacity to request a change in the hospital in which she was being treated, the court denied her request. Three days into her forced hospitalization, Burton miscarried.

With federal guidelines considering all women to be pre-pregnant, regardless of intent and the existing court doctrine of best interests of the child, why should we be surprised by this? This is the logical extension of the particular argument of fetal personhood.

But weren't her Constitutional rights violated? The court says no; the court ruled against her, claiming that that State was merely maintaining "status quo" in the situation. Or, to quote from the ruling: The trial court stated the rule that “as between parent and child, the ultimate welfare of the child is the controlling factor,” and concluded that the State’s interests in the matter “override Ms. Burton’s privacy interests at this time.”

Eventually, the case was thrown out on appeal...but only because fetal personhood was not considered to be valid and therefore was not a compelling reason for the State of Florida to restrict Burton's rights. If fetal personhood WAS valid, on the other hand, then the story would be entirely different - it WOULD be a compelling reason. And guess what? This isn't the first time this sort of thing has happened either. It's happened twice before in FL and once in CO.

So on seeing this, are we sure we want to go down the route of fetal personhood, now that 'unintended consequences' are shown not just to be possible, but supported by legal argument? Or shall we still traipse down that route, in the best interests of the child?

Comments

[meus-ovatio.livejournal.com]

Well as long as I can buy life insurance for it.

[gunslnger.livejournal.com]

Hah, that would be interesting.

[brockulfsen.livejournal.com]

Thankfully a higher court applied a small amount of common sense.

http://en.wikipedia.org/wiki/Burton_v._Florida

[farchivist.livejournal.com]

Which is why I said: Eventually, the case was thrown out on appeal...but only because fetal personhood was not considered to be valid and therefore was not a compelling reason for the State of Florida to restrict Burton's rights.

This stupidity is easy to stop

[brockulfsen.livejournal.com]

Just set fire to the toes of the various "No Blood" (products/transfusions) cults.

It would be easy for Doctors to order blood transfusions to keep a pregnant woman from miscarrying even under the restrictions of Burton v. Florida...

Re: This stupidity is easy to stop

[squidb0i.livejournal.com]

Well played.

Re: This stupidity is easy to stop

[a-new-machine.livejournal.com]

Hey, Jehovah's Witnesses have done more than most people know for religious and speech freedoms. You're probably right though - getting them fired up about it would be a great way to get a powerful, devoted litigation team, and a group with significant past success to boot, behind the issue.

[uncut-diamond.livejournal.com]

We haven't met but my people have lead me to other things you've done and I just want to take this chance to put forward my appreciation of your writing style and positions.

[rasilio.livejournal.com]

" that a woman could be incarcerated or otherwise forced against her will to bear a child. The fetal personhood proponents state that such no court would do such a thing, that it would never be allowed to stand."

The problem here is you are preaching to the Choir.

See while they will try to deny it would happen the fetal person hood proponents are really quite comfortable with this happening, as long as no proactive action is taken to terminate the pregnancy because in their opinion that is murder and more importantly that is playing god (which is really what the overwhelming majority of them object to).

Sure a few of them will get a little squeamish about cases of rape and incest but really that will be because they just wish the situation never occurred, not because the have any inherent objection to a woman being forced to carry a child to term against her will.

[ddstory.livejournal.com]

Why should it be a problem? :)

Intersting observation...

[sophia-sadek.livejournal.com]

... about playing God.

It gives their petty deity such a bad name. It makes me thankful that I have never been indoctrinated into the cult of the material Creator of the flat and immobile Earth.

[bex.livejournal.com]

CRAP. This is my FAVORITE TOPIC. I've been waiting for some of the utter nonsense re: fetal personhood to be featured here so I could get in on the conversation (I'm kinda a lurker), and it finally happens... while I'm out of town at a conference.

Between 1985 and 2000, more than 200 women in 30 states faced criminal prosecution for their behavior during pregnancy (Paltrow, Cohen & Carey, 2000). There were over a dozen known arrests in 2006 and 2007. Analysis of arrests of pregnant women has revealed overwhelming bias against women of color and a focus on low-income women.

- In 1999, Regina McKnight, a homeless, mentally impaired woman who was pregnant and addicted to cocaine, was charged with murder when her child was stillborn. The South Carolina Supreme Court affirmed her murder conviction and upheld the twenty-year sentence imposed (State v. McKnight, 576 S.E.2d 168, 171 (S.C. 2003), cited in Fentiman, 2006).

- In 2004, Melissa Rowland sought assistance at a hospital because she noticed a decrease in fetal movements. Doctors recommended a Caesarean delivery, but Rowland declined. When one of the twins she was carrying was stillborn, Rowland was charged with murder, with prosecutors asserting that she had acted with “depraved indifference to the value of human life”. Also in 2004, Theresa Lee Hernandez was charged with first-degree murder after delivering a stillborn son who tested positive for methamphetamines. She was incarcerated for three years before being convicted of second-degree murder in 2007 and sentenced to 15 years in prison (Flavin, 2009).

- In 2010, Christine Taylor found herself entangled in the criminal justice system when she fell down a flight of stairs in her home (Newman, 2010). Taylor’s husband had left her after she told him she was pregnant with their third child, and Taylor confided in her ER nurse that she was having doubts about continuing the pregnancy, as she was now a single mother already parenting two children. Although Taylor was in the first part of her second trimester, the nurse noted on her chart that she was in the first week of her third trimester, thus making her susceptible to Iowa’s fetal homicide law, which makes it a felony to intentionally terminate a pregnancy "with the knowledge and voluntary consent of the pregnant person after the end of the second trimester" unless a pregnancy is terminated for the reasons of the life or health of the mother. Such a law is structured after the federal Unborn Victims of Violence Act, which allows for the perpetrator of a violent crime against a pregnant woman to be charged for two crimes - one against the woman and one against her fetus. However, the UVVA explicitly states that nothing in the act “shall be construed to permit the prosecution of any woman with respect to her unborn child” (Flavin, 2009). The nurse told the doctor, the doctor called the police, and the police arrested Taylor. The charges against Christine Taylor were eventually dropped, not because of the misapplication of the law, but because Taylor's doctor confirmed that she was in her second trimester at the time of her fall and not the third.

Anyway. I have soooo much information on this topic - I find it absolutely fascinating and I hope to build my career (criminologist by training) around the intersection between women's reproductive lives and social control. My doctoral dissertation is on women who use drugs when they're pregnant - it's the crux of a million issues, including social construction of "good mothering", racism/classism, arbitrary definitions of what is harmful (illegal drugs versus alcohol/tobacco), fetal rights versus rights of the mother, "moral panics", biosurveillance and the state, the power of the medical profession, and so on and so on. I'm really excited about it, as is probably clear.

[bex.livejournal.com]

Anyway. Yes, I am deeply troubled by the recent attempts to criminalize miscarriage, and the "it probably won't happen" argument is not adequate to ease my fears. I think it speaks volumes about how some people perceive the role of women in society, and what is says is troubling to me. Unfortunately, as far as the "fetal personhood" argument, I think it's unresolvable - the disagreement over "when life begins" and when personhood should be granted is not "provable" through science but deeply rooted in morality and religion. A pro-choicer and pro-lifer can argue with each other until they're both blue in the face, but they will not agree on this point. I can only hope that rational minds will recognize the hideous consequences for women if fetal personhood is granted and understand that their personal beliefs may be incompatible with sustainable and sensible social policy.

Great post.

[squidb0i.livejournal.com]

Now swap the word 'fetus'/'fetal' for 'corporate'..

Re: Great post.

[fizzyland.livejournal.com]

Can we abort corporations? Because I'm ready with the clamps & vacuum hose.

[kawaiimamimi.livejournal.com]

Well, hey, that's enraging and creepy. I'm so tired of all this idiotic fetal personhood nonsense I don't even know what to do anymore. It's just... such a terrible idea all across the board.

[gunslnger.livejournal.com]

Once again, the problem is having the state involved in the problem in the first place. The Nanny State on steroids.

[eracerhead.livejournal.com]

Agreed. Unfortunately both conservatives and liberals, Republicans and Democrats are guilty of this.

[htpcl.livejournal.com]

"at least in the U.S."

Thanks, that was a necessary clarification.

[johnny9fingers.livejournal.com]

Halfway to "The Handmaid's Tale" is America going to stop and take notice of just where it is heading?

I think I would not care to be a woman in America.

[underlankers.livejournal.com]

The only counterpoint I'd note to that is that the Handmaid's Tale future USA was very much bizarre. There's no regime in the world that would target women that elaborately, not even the Saudis do that. The most realistic possibility of that future is something like the TL-191 Freedom Party.

[malasadas.livejournal.com]

I have in the past had prolife advocates essentially poo poo the consequences of a real ban on abortion for women -- namely, they held the notion that beyond not being able to get an abortion, there'd be no further implications for women.

Yeah, well -- no. (http://www.nytimes.com/2006/04/09/magazine/09abortion.html?pagewanted=print)

The model is out there, and it is a logical consequence of the position put into law rather than put into social advocacy. And if the idea of teams of "forensic vagina investigators" doesn't make people shudder, I don't really know what will.

[ddstory.livejournal.com]

as between parent and child, the ultimate welfare of the child is the controlling factor

Whadda-wha? Is this real? So the unborn child's health has primacy over the living mother's health? How so? If pregnancy complications cause health and life risks for the mother, how would that reflect on the child?

This would never have happened in a normal country. Iran and Saudi Arabia - maybe.

Look, a few days ago I found out I'm pregnant. I'm extremely happy. I really, REALLY want this child. But... goodness forbid, if, at some point, my health is threatened and there's no way to keep it, or some other complication occurs, I'd like to have the right of a choice what to do with myself and the child. An informed choice of course. But ultimately, the choice should be mine, not the doctor's or the authority's.

[badlydrawnjeff.livejournal.com]

Look, a few days ago I found out I'm pregnant.

Hey, congratulations! Some kid is going to be very lucky very soon!

[underlankers.livejournal.com]

Shit like this convinces me the heart of the anti-abortion movement is a twisted cult that worships the unborn child. I mean my God, at the rate things are going it'll be Victorian Separate Spheres all over again. >.<

[blue-mangos.livejournal.com]

While I can see the advantages of fetal personhood in the cases of all the men who kill their pregnant partners, these examples of women being treated like children, who can't possibly know what's best for themselves, are sickening.

[harry-beast.livejournal.com]

It would also apply to someone who commits violence against a pregnant woman causing the violent and unwanted (by the mother) termination of a pregnancy.

[kinvore.livejournal.com]

This is what happens when we dehumanize people. Certain people value fetuses more than they do anyone already born. Add to that the use of "personal responsibility" to paint pregnant women as somehow needing to be punished and you get this callous disregard for what happens to them.

Can we get a freedom FROM religion clause on the First Amendment yet?

[eracerhead.livejournal.com]

I'd like to see the outcry on the right if the medical opinion was "You must have an abortion even against your will."

Often the extreme position in these types of laws is not apparent until an equally extreme counter position is expressed. Unfortunately in the US because of the right-wing takeover of television and radio media the people who most need to hear them, don't.

[fizzyland.livejournal.com]

'Best interests of the child' probably wouldn't include the combo pack of:

1) Forcing mothers who don't want a child to carry it to term.
2) Simultaneously gutting social services funding to feed/clothe/medicate the holy fetus once it is born.