"Is miscarriage murder? States that put fetal rights ahead of a mother's say so"

[Sasha]

Is miscarriage murder? States that put fetal rights ahead of a mother's say so

The effort to undo Roe v Wade threatens not just reproductive rights but the very definition of personhood for American women



(http://www.facebook.com/dialog/feed?app_id=180444840287&link=http://www.guardian.co.uk/commentisfree/2013/jan/25/miscarriage-murder-roevwade-personhood&display=popup&redirect_uri=http://static-serve.appspot.com/static/facebook-share/callback.html&show_error=false)Sadhbh Walshe (http://www.guardian.co.uk/profile/sadhbh-walshe)






guardian.co.uk (http://www.guardian.co.uk/), Friday 25 January 2013 13.15 GMT
Jump to comments (152) (http://www.guardian.co.uk/commentisfree/2013/jan/25/miscarriage-murder-roevwade-personhood#start-of-comments)


http://static.guim.co.uk/sys-images/Guardian/About/General/2012/12/5/1354727644965/jail-sex-offender-for-lon-010.jpg

Several states have pursued murder charges for women who have miscarried. Photograph: Graham Turner for the Guardian



Back in 1872, just after she was arrested for casting an illegal vote, Susan B Anthony gave a rousing speech (http://www.historyplace.com/speeches/anthony.htm) in which she posed the question of whether women are actually persons. Her point, of course, was that if women were indeed flesh and blood persons, then there could be no legal basis under the constitution to deny them a vote. It took nearly 50 more years – women finally achieved suffrage in 1920 – to get a definitive answer to what was a rhetorical question.
Now, however, less than 100 years after that long-delayed answer, the question of whether women – or at least, pregnant women – are still persons endowed with all the human, civil, and constitutional rights that personhood bestows, is once again in play. And the evidence suggests that the answer is, at best, a "maybe".
This week, just in time for the 40th anniversary of Roe v Wade (http://www.guardian.co.uk/world/roe-v-wade), the National Advocates for Pregnant Women (NAPW) released a study (pdf) (http://jhppl.dukejournals.org/content/early/2013/01/15/03616878-1966324.full.pdf+html) on the "criminalization of pregnancy (http://www.guardian.co.uk/lifeandstyle/pregnancy)", as reported last week by the Guardian's Karen McVeigh (http://www.guardian.co.uk/world/2013/jan/15/criminalisation-pregnancy-women-study). It details hundreds of cases of women who were arrested, forced to undergo medical procedures, and held in jails, prisons, or mental institutions.
These arrests and detentions were made possible by the relentless quest to undo Roe v Wade and restrict access to legal abortions. But there is a bigger issue, according to NAPW's executive director Lynn Paltrow (http://www.advocatesforpregnantwomen.org/):

"We are no longer just talking about [attacks on] reproductive rights, but whether, in the guise of trying to end just abortion (http://www.guardian.co.uk/world/abortion) rights, we are going to remove pregnant women from the community of constitutional persons."
That sentence should send chills up the spine of any woman in America who is pregnant or who may someday become pregnant (which covers quite a few of us). There are now anti-foeticide laws (http://www.ncsl.org/issues-research/health/fetal-homicide-state-laws.aspx) in 38 states. Colorado and Mississippi have tried (and intend to try again) to pass personhood laws (http://www.denverpost.com/news/ci_21430098/anti-abortion-personhood-amendment-wont-make-colorado-ballot) that would grant full constitutional rights to a fertilized egg.
Georgia tried, and thankfully failed, to pass a law that would have had all miscarriages investigated as possible homicides. Alabama did pass a chemical endangerment law that is being used to prosecute (mostly poor and minority) pregnant women suspected of taking drugs. The upshot of all this attempted legislation is that terminating a pregnancy is still lawful, but hundreds of women who miscarry or have stillborn babies can be charged with murder and sentenced as murderers (http://www.guardian.co.uk/world/2011/jun/24/america-pregnant-women-murder-charges).
Many reproductive rights advocates have long suspected that these various laws are more about controlling women than genuine attempts to protect babies. I would argue that anyone genuinely pro-life should be demanding universal healthcare for pregnant women, not prison terms for a failure to provide their unborn babies with a level of care and well-being they themselves do not enjoy. Whatever the intention of these laws, what has become clear is that rather than protecting the rights of the fetus, this legislation steadily erodes the rights of the women on whom those fetuses are dependent.
The Roe v Wade decision explicitly rejected the argument that fetuses were to be treated as separate constitutional persons under the law. Yet, we now have documented evidence of hundreds of women being forced to undergo medical procedures against their will, against their doctors' advice and sometimes in restraints, on the grounds that the fetus has its own set of rights separate from those of its mother.
Lynn Paltrow recounts the tragic case of Angela Carder (http://criticalmassprogress.com/2013/01/16/roe-v-wade-and-the-new-jane-crow-reproductive-rights-in-the-age-of-mass-incarceration/), who was ordered by a court to undergo caesarian surgery – against the advice of her doctors, her family, and her own wishes.

"Ms Carder was 27 years-old and 25 weeks pregnant when she became critically ill. She, her family and her attending physicians all agreed on treatment designed to keep her alive for as long as possible. The hospital however called an emergency hearing to determine the rights of the fetus.
"Despite knowing that Caesarian surgery could kill Ms Carder, the court ordered it, claiming that the fetus had independent legal rights. The fetus was born alive but died two hours later. Angela Carder died two days later, with the surgery listed as a contributing factor."
A higher court later ruled that Carder's rights had been violated – scant comfort to her grieving family. The dissenting judge in that ruling, however, gave some frightening insight into what women are up against: he argued that the viable unborn child is a person with rights separate from the pregnant woman, and that an expectant mother by "undertaking to bear another human being places herself in a special class of persons".
I don't imagine that "special class of persons" is one Susan B Anthony, or indeed, any self-respecting woman, would care to be a part of. In this class, a pregnant woman can apparently be expected to forgo her own right to life, whether or not there is a chance that the fetus she is carrying might outlive her.
We (women, I mean) should be grateful that, for now, this particular judge's dissenting opinion is not the law of the land. But these increasingly common opinions, and not the law of the land, are driving continued arrests, detentions, and illegal interventions into the lives of pregnant women.
What does this mean for American women in the future? I do not know, but what is certain is that as legal battles to undo abortion rights continue (and they will), women – and men who care about them – need to realize it's no longer just reproductive rights we have to worry about, but our basic civil and human rights (http://www.guardian.co.uk/law/human-rights).





source; www.guardian.co.uk/commentisfree/2013/jan/25/miscarriage-murder-roevwade-personhood

[l'Enfermé]

"Anti-foeticide"? These fucking Christians, man. They just have to have a "-cide" for everything. The same assholes that kept up the "deicide" shit for centuries...

[Firebrand]

Anyone who supports these laws should be classed as crimanlly insane and a danger to society and be locked up for the protection of pregnant women everywhere.

[Lobotomy]

Although the idea is appalling, a pro-life person pretty much has to argue that miscarriages = murder (or perhaps manslaughter) if they want to be consistent. I said that once in an abortion debate in a political philosophy class and the pro-lifers changed the subject reaaal fast. :rolleyes:

[ckaihatsu]

Anyone who supports these laws should be classed as crimanlly insane and a danger to society and be locked up for the protection of pregnant women everywhere.


While this is excellent rhetoric, I wonder if such a reform would be realistically necessary -- if a civil society is humane enough to... well, *not-prosecute* women for incidents to their fetuses, then it is enlightened enough to not take such conservative inflammatory anti-woman politics seriously in the first place.

At the risk of nit-picking here I'll note that such views are entirely *political* since no wild-eyed psychos are invading hospitals to dispense such vigilante justice themselves.

[Quail]

Colorado and Mississippi have tried (and intend to try again) to pass personhood laws (http://www.denverpost.com/news/ci_21430098/anti-abortion-personhood-amendment-wont-make-colorado-ballot) that would grant full constitutional rights to a fertilized egg.

I was thinking about this last night for some reason, and wondered what would happen in the case of an ectopic pregnancy (i.e. when a fertilised egg implants in the fallopian tubes instead of the uterus). An ectopic pregnancy is not viable and would kill the woman without medical intervention, but there is still a fertilised egg. Would a consistent position that asserted a fertilised egg was a "person" allow in such cases to kill a "person" to save the mother? Because if it is okay in that case, then there are quite a few other cases in which abortion must also be acceptable, such as if the fetus is developing abnormally (and is not viable) or if continuing a normal pregnancy would be fatal to the mother.

I don't know what pro-lifers actually think about ectopic pregnancies, but it was just something that occurred to me, especially with the idea that a fertilised egg is a "person."

[choiceone]

I realize that there is a passage in the Roe v Wade decision in which the issue of personhood arises - specifically, if fetal personhood were established, the Roe argument would break down - and is then set to rest - case law itself did not establish fetal personhood. However, I would argue that, even if a zygote/morula/blastocyst/embryo/fetus were defined as a person in law, a woman's right to choose to terminate a pregnancy could easily be defended.

For example, in NY state, the use of lethal force if necessary to prevent or stop a crime is not limited to those cases where a person perceives another to be threatening his/her life or a third party perceives the other to be threatening that person's life. The right to avail oneself of lethal force if necessary to prevent or stop a crime is extended in cases where a person is threatened with rape or sexual abuse or is actually being raped or sexually abused. Moreover, surgery and invasive procedures without the informed consent of the patient can in some instances be prosecuted as battery.

Now, the actual biological facts of reproduction/pregnancy may support a claim of assault of battery related to sexual organs if a blastocyst is considered a distinct person.

While a zygote/morula/blastocyst can grow even in a petri dish, its normal lifespan does not exceed 8-10 days. In a woman, prior to implantation, that is its life span, partly because of the amount of nutrient available without implantation. The blastocyst implants in the uterine wall to extend its life span. But in doing so, it invades the woman's bodily tissue and uses some of her tissue in making a placenta. Her immune system's attack T-cells, which are crucial to protecting her against invasive viruses, attack the placenta and blastocyst/embryo to disimplant it. The blastocyst/embryo directs the placenta to produce an enzyme that catabolizes the local tryptophan (amino acid) in her body, which her immune system's attack T-cells need to live, and this starves those cells, so that they go into latency to survive and cannot protect her from viruses locally. Her blood complement, which ordinarily protects against infections, keeps attacking the placenta and blastocyst/embryo, but is not as effective. Thus, her immune system is disabled. Experiments with mice show that several chemical agents, if injected into the placenta, can inhibit production of the enzyme, and this will restore the immune system to ordinary functionality. The blastocyst/embryo directs the placenta to re-channel her blood and then obtains oxygen, nutrients, and antibodies from the blood. It expels its waste so that the waste enters her blood. Increasingly across the pregnancy and massively in childbirth, it leaks its own cells and isolated chromosomes, including alien ones, into her bloodstream.

Now, suppose you or I were to penetrate into the tissue of a sex organ of another person, take some of that person's tissue to use for some purpose, disabled that person's immune system, re-channeled his/her blood, removed oxygen and nutrients from his/her blood, and put into his/her blood semi-toxic waste and alien chromosomes, some of which might cause him/her to be liable to certain diseases later in life - all against his/her expressed conscious will.

We could certainly be charged with assault or battery, and because the location would be a sex organ, that assault would be a form of sexual abuse. How could one argue that it is not assault or battery and sexual abuse in the case of the blastocyst/embryo? Of course, the latter does this to extend its life span. However, you or I would not have the right to do these things even to extend our life spans. We do not, as persons, have the right to a blood transfusion from a person to save our lives even if that person is the only one within hundreds of miles whose blood type is compatible with ours.

This brings us back to the Judith Jarvis Thomson defense of abortion from the early 1970s. Personhood would make no difference for the embryo, because it would then have only the same rights that other persons have.

So I am honestly not too concerned about about the personhood fanatics.