Lurking in the anti-choice arsenal is a fascinating piece of legislation called the Unborn Child Pain Awareness Act. Like its predecessors--the Unborn Victims of Violence Act and the Partial Birth Abortion Ban--it does not, on its face pose a direct challenge to the right to choose abortion. Yet, the anti-choice movement deserves credit for creatively proposing bills that put the pro-choice movement on the defensive. With titles that use such terms as "victims" and "awareness," and framed in the context of the need to inform the pregnant women, they are hard to oppose without seeming incredibly stupid or grossly insensitive.
This new bill informs us that at 20 weeks after fertilization an unborn child has the capacity to experience pain and that the abortion methods most commonly used in the second trimester of pregnancy "cause substantial pain to an 'unborn child.'" The bill therefore mandates that women must be informed of this before they can have such abortions (1.5% of all abortions occur after 20 weeks).
Now, the science the bill's authors rely on may be a wee tad speculative--they refer to unspecified experts and evidence--but the truth is that women who need such abortions aren't having them to cause fetuses pain. In fact, if there is even a possibility that this science is correct, these women will want to do anything they can to ensure that the procedure causes as little pain as possible. The premise may lack all scientific or medical justification, but it is hard to imagine any constituency that is going to be for causing pain to a fetus.
The bill has other rather bizarre features that I suppose I should mention. It defines a woman as "a female human being who is capable of becoming pregnant"--something that will come as a surprise to post-menopausal and infertile female Americans thus rendered somehow less than real women.
The statute also informs us that the "unborn child may experience substantial pain even if the woman herself has received local analgesic or general anesthesia." The idea that powerful anesthetics administered in labor might not also reach the fetus will astonish pregnant women who have been told for years that everything from cocaine to caffeine to a single glass of wine go immediately, directly and dangerously to the fetus. And--in a departure from medical ethics and principles of informed consent--the bill requires the health care provider first to inform the woman of the pain the fetus experiences; as an afterthought it says that doctors "may" (are permitted to, but not required to) inform the woman of additional medical risks to her as a result of anesthetic administered directly to and solely for the benefit of the fetus.
It must be admitted that--in addition to violating ethical principles of informed consent and lacking scientific foundation--the bill is disappointingly incomplete. It states that "there is a valid Federal Government interest in reducing the number of events in which great pain is inflicted on sentient creatures," yet covers only "unborn children." It leaves unprotected millions of born Americans who suffer chronic pain--including those blocked by draconian drug laws from obtaining medication to alleviate unrelenting suffering.
Putting aside the rather narrow definition of "sentient creatures"--and such shock-jock language used to describe abortions procedures as "dismemberment," "poisoning" and "sucks [out] the child's brain"--I will nevertheless consider supporting the bill with one caveat. It must be full and fair. Why limit its protections to only "unborn children" of women seeking abortions? Imagine the pain a fetus experiences with a forceps delivery, suffering extensive bruising during and after! And what about the pain experienced with internal monitoring in which a sharp metal wire is forced through fetal skin into their delicate scalps?
Or the extraordinary pain the fetus suffers when labor is induced and the fetus is subjected to repeated, violent maternal uterine contraction and then forced through the unimaginably narrow vaginal canal? Shouldn't these fetuses also be entitled to their own painkillers? Shouldn't the pregnant woman be fully informed of the indescribable pain she could be causing her soon to be, but yet unborn child by bearing it?
That is my modest proposal. We need a Full Unborn Child Awareness Act, one that includes all of the ways pregnant women and health care providers and birth may inflict pain on the fetus. Those who oppose the necessary amendments will be supporting what can only be understood as the Unborn Child Partial Pain Awareness Act. In good conscience, how could anyone support that?
In a society that values children, it's striking how frequently our public policy falls short of our rhetoric. Too often, the notion of collective responsibility for the nation's children translates into collective demonization of pregnant women. Collective responsibility for our children should mean support for policies that help pregnant women get the care they need to have healthy babies. Instead, states and localities are increasingly blaming individual women, exaggerating the harms from individual behaviors.
In Arkansas' recent special spring session, Hot Springs Rep. Bob Mathis followed up his successful proposal to make it illegal for someone to smoke in a car with children with a proposal to ban pregnant women from smoking. For those who subscribe to the view that pregnant women are vessels, treating them like cars makes perfect sense.
No one disputes that smoking, drinking and using drugs raise serious health issues for everyone, including pregnant women and their future children. Addressing these health matters, however, through punitive prohibition measures does not work to protect the health of women or the babies they're carrying. Rather, focusing on pregnant women as dangerous people who require special control or punishment inevitably undermines maternal and fetal health. Such measures divert attention from pregnant women's lack of access to health services, and deters them from seeking what little help is available. That is why medical groups including the American Medical Association, the March of Dimes and the American Academy of Pediatrics overwhelmingly oppose punitive measures targeting pregnant women.
Nevertheless, Arkansas Gov. Mike Huckabee supported Mathis' proposal, saying, "A lawmaker's suggestion to prohibit women from smoking during pregnancy makes sense from a health standpoint."
It only makes sense if you haven't bothered to think for a moment about the nature of addiction. Ask Rush Limbaugh, who has by word and deed made clear that addiction -- even for the most popular and economically privileged people -- can be very very difficult to overcome. According to press accounts, Huckabee added that "such a prohibition, if enacted, would probably have to cover other unhealthy activities such as drinking." Perhaps the governor forgot about America's experiment with alcohol prohibition in the 1920s. It failed miserably and there is nothing to suggest that resurrecting it for women only will work any better.
Meanwhile, a county in Alabama is also pursuing public policies that punish pregnant women for their otherwise legal behaviors. Late last month in Franklin County, a woman was arrested and charged with child torture for giving birth to a baby that tested positive for methamphetamine. Never mind that Alabama's legislature has not made it a crime to continue a pregnancy to term in spite of a drug problem or that more than 90 medical researchers warn not to rush to judgment about the potential harms of prenatal exposure to methamphetamine. And just ignore the fact that access to appropriate family drug treatment for pregnant and parenting women is virtually non-existent in this country.
Again, drug use and pregnancy are serious public health issues. But reinterpreting pregnancy as a form of torture and pregnant women as torturers won't help. Drug treatment, access to health care and family support will. It is highly unlikely, however that these services will be provided if the pregnant women and new mothers who need those services are stigmatized as child torturers.
Recent days have also seen a California jury deadlock 6-6 in the case of a woman accused of murdering her infant son by feeding him breast milk containing methamphetamine. What was originally identified as an infant death due to Sudden Infant Death Syndrome became a murder case when prosecutors found traces of methamphetamine in the baby's system. Prosecutors could not even prove the mother breastfed, but they pursued this theory anyway. The mother was convicted at her first trial. The conviction was overturned and the latest trial resulted in the deadlock.
Now let's bring all this full circle. A June 13 story in The New York Times entitled "Breast-Feed or Else" reports that the U.S. Department of Health and Human Services has recently come up with a new, strident pro-breast-feeding campaign. The campaign warns that not breast-feeding may be hazardous to a baby's health and it equates failure to breast feed with risky behaviors like smoking and drinking during pregnancy.
So while Washington launches a government-sponsored breastfeeding campaign built on the premise that mothers who don't breast feed are bad, prosecutors in California have been working hard to portray mothers who do breast-feed as worse, in this case as potential murderers.
These seemingly unrelated events share a common feature -- they all focus attention on pregnant women and mothers as the primary threats to the health and well being of our children. Such a preoccupation with pregnant women stands in stark contrast with a government that allows coal-burning power plants to pour poisonous mercury into the environment with impunity and the 45 million people without health insurance -- including many pregnant women and new mothers who lack coverage for smoking cessation programs, addiction treatment and mental health services.
These disparate interventions and proposals have something else in common. They ensure that pregnant women and new mothers will be at risk of judgment and punishment no matter what they do. It is hard to imagine a worse scenario for anyone serious about improving maternal, fetal and child health.
Imagine a law declaring that upon becoming pregnant a woman loses her right to bodily integrity, life and liberty. Such a law would undoubtedly result in strong opposition across party lines. But in fact such laws are being passed -- though rather than presented as an attack on women's fundamental rights, they are advanced as fetal rights measures such as the Unborn Victims of Violence Act recently signed into law by President Bush. Increasingly, fetal rights are being used to undermine the legal status of pregnant women.
In America, both constitutional and common law recognizes the rights of all adults to informed consent and bodily integrity. While individuals may be required to submit to immunizations to protect the public health in general, our courts are not permitted to balance the health interests of one person against those of another. In 1978 Robert McFall, suffering from a rare bone marrow disease sought a court order to force his cousin David Shimp, the only compatible donor, to submit to a transplant. The court declined explaining: "For our law to compel the Defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would know no limits." Forcibly restraining someone to make them submit to surgery for the benefit of another would "raise the specter of the swastika and the Inquisition, reminiscent of the horrors this portends."
In the name of fetal rights however, pregnant women are being forcibly restrained. In 1984, for example, a Nigerian woman pregnant and hospitalized in Chicago was forced to have a C-section. She refused the surgery because she planned to return to Nigeria where she would be unable to access C-sections for future births. The hospital obtained a court order and forced her to undergo the procedure. Hospital staff tied her down with leather wrist and ankle cuffs while she screamed for help.
Another hospital obtained a court order to force a pregnant woman to undergo a blood transfusion. Doctors "yelled at and forcibly restrained, overpowered and sedated" the woman in order to carry out the order.
In Washington, DC, doctors sought a court order to force Ayesha Madyun to have a C-section. The doctors asserted that the fetus faced a 50-75 percent chance of infection if not delivered surgically. The court, apparently viewing the pregnant woman as having no more rights than a slab of meat, said, "[a]ll that stood between the Madyun fetus and its independent existence, separate from its mother, was put simply, a doctor's scalpel." With that, the court granted the order and the scalpel sliced through Ms. Madyun's flesh, the muscles of her abdominal wall, and her uterus. When the procedure was done, there was no evidence of infection.
All of these women were denied the right to bodily integrity and physical liberty and their fetuses were granted more rights than any legal person under law.
Angela Carder at 27 years old and 25 weeks pregnant 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 testimony that a Cesarean section could kill Ms. Carder, the court ordered the surgery because the fetus had independent legal rights. As a result, Ms. Carder not only lost her right to informed consent and bodily integrity; she lost her life. The surgery resulted in the death of both Angela and her fetus.
While courts since the Carder case have uniformly held that such interventions are inappropriate and leading medical groups oppose such actions, legislators are forging ahead with a wide range of fetal rights legislation. Thirty-one states now have fetal homicide laws. Recently, Utah relying on such a law charged a woman for murder because she delayed having a C-section causing, they alleged, the stillbirth of one of her twins. This pregnant woman was not only deprived of the constitutional rights all other medical patients have -- the right to consider a medical recommendation and the right to refuse surgery -- she is deemed a criminal for exercising those rights.
In another case, lawyers asserted that without the Caesarean "almost assuredly the baby will be born dead or brain damaged" and that "if not for the mother's primitive [religious] beliefs," the fetus would have been delivered rather than "kept prisoner in a mother's womb." The court refused to grant the order, and the mother gave birth to a healthy baby. Fetal rights, however, provided the legal argument to override her religious beliefs and to treat her as a jail cell -- a building, not a person.
The court in the McFall case condemned Mr. Shimp's refusal to help his cousin as "morally indefensible." While people may be justified in moral condemnation of some pregnant women, they are not justified in denying them civil rights that other adults enjoy. The overwhelming majority of pregnant women do all they can to protect the health of their fetuses. In many of the reported cases, the doctors' dire predictions turned out to be wrong. Performing unnecessary surgery and deterring women from trusting their doctors does nothing to promote fetal well being.
To oppose the recognition of fetal personhood as a matter of law is not to deny the value of potential life as matter of religious belief, emotional conviction or personal experience. Rather, it is to recognize that such a legal construct effectively removes pregnant women from the protections of the constitution and civil law.
Lynn Paltrow is Executive Director of National Advocates for Pregnant Women.
After the Senate passed the Unborn Victims of Violence Act last week, President George W. Bush -- the same man who supports relaxing rules for fetus-poisoning mercury -- wasted no time signing it into law. Most of those opposing the Act, from pro-choice leaders to The New York Times editorial board, charge that it will undermine the right to choose abortion. In fact, while this fear is indeed warranted, those who are most likely to be harmed by this law are not women seeking abortions, but women who want to continue their pregnancies to term.
The UVVA creates a federal law making it a crime to cause harm to a "child in utero," recognizing everything from a zygote to a fetus as an independent "victim," with legal rights distinct from the woman who has been attacked. More than 30 states already have similar laws on the books. In practice, these laws treat the pregnant woman as little more than collateral damage in an attack portrayed to the public as one directed against the fetus. Moreover, pregnant women in states with such laws are more likely to be punished for behaviors and conditions that are not criminally sanctioned for other members of society.
Paradoxically, the UVVA does not make it a federal crime to attack pregnant women, and its sponsors explicitly rejected proposals to protect the woman herself under federal law. And yet homicide is the number-one killer of pregnant women. It has long been known that violence against women increases during pregnancy. There is no data, however, to support the view that this violence is motivated by a particular hostility toward fetuses who must therefore be given protection separate from that afforded to the expectant mother.
Pregnant Women As Criminals
Sen. Lindsey Graham, a Republican from South Carolina, claims that the UVVA is "about criminals who attack pregnant women." Graham, perhaps more than any other senator, should know that what this law is really about is turning pregnant women into the criminals.
After all, his home state of South Carolina offers a chilling example of the ramifications of laws creating special fetal interests. In 1984, South Carolina's Supreme Court created a state feticide law in a case where a man viciously stabbed his pregnant girlfriend, causing her, among other things, to lose her pregnancy. In 1997, South Carolina used this law against a pregnant woman, Cornelia Whitner, who was charged with failing "to provide proper medical care for her unborn child." Whitner had given birth to a healthy baby who tested positive for an illegal drug. Based on extrapolation of the state feticide law, Ms. Whitner was convicted of criminal child abuse. At sentencing Ms. Whitner begged for drug treatment. The judge responded, "I think I'll just let her go to jail."
While South Carolina ranks number one in murders of women by men and last in the number of state dollars spent on drug treatment, the primary targets of the state's fetal protection laws are pregnant women and new mothers who need drug treatment and mental health services. As a result, scores of women in South Carolina who could benefit from treatment have been arrested, some escorted from hospitals in chains and shackles while still pregnant, others still bleeding just following a delivery. According to the Association for Addiction Professionals, women throughout the country "are second-class citizens when it comes to treatment for drug addiction and alcoholism."
In America, we do not punish people for being sick. And courts generally do not permit the arrest of someone merely because they suffer the disease of alcoholism or other drug dependency. Nevertheless, relying on the argument that the fetus is an independent victim, hundreds of women nationwide have been arrested for continuing their pregnancies to term in spite of a drug or alcohol problem that for anyone else would be treated as a health problem. Underlying these arrests is the belief that being addicted to drugs or having another health problem during pregnancy is no different from a man shooting his pregnant girlfriend in the head.
South Carolina's feticide law goes even further, and has also been used to punish a woman for experiencing a stillbirth. Regina McKnight was an indigent 22-year-old woman with a drug problem. She became pregnant and despite her problems had every hope of carrying her pregnancy to term, but the pregnancy ended in stillbirth. The hospital reacted not by offering her counseling or drug treatment, but rather by helping build a criminal case against her. Eventually she was convicted of murder.
The South Carolina Medical Association and other leading health groups concluded that there was no evidence that McKnight's drug use caused the stillbirth. Moreover, no one in this case, not even the prosecution, believed that McKnight had any intention of harming the fetus or losing the pregnancy. Had McKnight intentionally sought to end her pregnancy by having an illegal third trimester abortion, her sentence would have been two years in jail -- but because of a law similar to the bill President Bush just signed, she is today serving a 12-year sentence.
Policing the Pregnant
Under South Carolina's version of the law, one local prosecutor warns that: "Even if a legal substance is used, if we can determine you are medically responsible for a child's demise, we will file charges." The pregnant woman who "allows" herself to be battered, and the woman who misses prenatal care appointments are both now vulnerable to prosecution for murder should something go wrong in the pregnancy.
In states whose fetal rights laws create explicit exceptions for the pregnant woman -- such as California and Missouri -- the laws have nevertheless been used to arrest pregnant women and newly delivered mothers. Utah prosecutors have declared publicly that its state feticide law provides the basis for arresting a pregnant woman for allegedly delayed having a cesarean section.
While courts, with the exception of those in South Carolina, have thus far struck down these prosecutions, the arrests continue based on a growing body of law declaring that fetuses have rights separate from those of pregnant women. And this is precisely the rationale underlying the UVVA bill President Bush just signed.
Yes, some of UVVA's sponsors have admitted that it is about abortion, but its most immediate and devastating threat is to women who have no intention of terminating their pregnancies and for many of whom abortion is abhorrent. Far from safeguarding pregnant women or children, the UVVA creates the legal foundation for policing pregnancy and punishing women who carry their pregnancies to term.
Lynn M. Paltrow is the executive director of National Advocates for Pregnant Women.
An arrest in Utah last week of a 28-year-old woman who allegedly committed murder by refusing to undergo a C-section represents a shocking abuse of state authority and a dangerous disregard for medical ethics.
In this case, prosecutors claim that Melissa Rowland -- a woman pregnant with twins -- rejected the advice of her physicians to have a caesarean section, allegedly resulting in the stillbirth of one of the twins. According to the law, however, pregnant women -- like other Americans -- have the right to decide whether or not to undergo surgery. The American Medical Association and the American College of Obstetricians and Gynecologists (ACOG) as well as other leading medical groups similarly conclude that the final decision must be the woman's:
Once a patient has been informed of the material risks and benefits involved with a treatment, test or procedure, that patient has the right to exercise full autonomy in deciding whether to undergo the treatment, test, or procedure or whether to make a choice among a variety of treatments, tests, or procedures. In the exercise of that autonomy, the informed patient also has the right to refuse to undergo any of these treatments, tests or procedures. . . . Performing an operative procedure on a patient without the patient's permission can constitute 'battery' under common law. In most circumstances, this is a criminal act. . . . Such a refusal [of consent] may be based on religious beliefs, personal preference or comfort. (ACOG. Informed refusal. Committee Opinion No 237, June 2000.)These legal and medical ethical principles make sense for both women and children. Doctors are not infallible and their advice is just that, advice. In addition to the consensus of medical organizations, courts, too, have long recognized a patient's right to make health care decisions free from governmental intrusion. However, in the case of a pregnant woman refusing potentially beneficial medical treatment for the fetus, the principle has been too easily set aside, and for dubious reasons.
Not an Isolated Case
For example, earlier this year a woman in Pennsylvania went to a hospital ready to deliver her seventh child. For reasons that remain far from clear, the hospital decided she needed a C-section and when she refused, they went to court. They asked for and won an order giving the hospital custody of the fetus before, during and after delivery and the right to take custody of the pregnant woman and force her to undergo the surgery. She and her husband fled the hospital and delivered a perfectly health baby without surgery.
Similar cases abound. In one Georgia case, doctors got a court order claiming that without a C-section a baby had a 99 percent chance of dying and the woman a 50 percent chance of dying. The court granted the order, the woman fled and delivered a healthy baby vaginally. Neither women nor children are protected by a system that makes women flee from hospitals or subjects them to unnecessary surgery.
Angela Carder was not as lucky. This case occurred in the early 1990s and garnered national attention. After the 25-weeks pregnant Carder became critically ill with cancer, she, her family and attending physicians agreed to focus on prolonging her young life for as long as possible. The hospital, however, sought a court order forcing her to have a C-section. Despite testimony that the surgery could kill her, the court concluded that the fetus had a right to life and ordered her to be cut open against her will. The surgery was performed: The fetus died within two hours and Angela died within two days with the C-section listed as a contributing factor. No one suggested arresting the doctor or hospital officials for murder. The life and death of Angela Carder focused national attention on the propriety of using courts to determine medical treatment for pregnant patients and inspired a chorus of diverse voices to condemn coercive medical treatment.
Ayesha Madyun survived. She was forced to have a C-section based on the claim that she had been in labor too long and that her baby was at risk of dying from an infection. Her request to be allowed to wait longer before having the surgery so she could try natural delivery was portrayed to the court as an irrational religious objection to surgery. The court granted the order and after Madyun had been forcibly cut open they found that there was in fact no infection.
The ability to get a court order or threaten pregnant women with arrest has many negative consequences beyond denying pregnant women rights and performing unnecessary surgery that poses health risks to both the pregnant woman and fetus. In an Illinois case, doctors sought a court order for a forced C-section claiming the pregnant woman and her husband held irrational religious beliefs opposing all surgery. Instead of spending time with the patient, the doctors ran to the court. The court refused the order, the baby was delivered naturally, and it turned out that if the doctors had spent the time communicating with the patient and her family rather than judging them and rushing to court, they would have learned that it was misunderstanding, not an absolute objection to surgery, that made it appear that this couple was refusing a recommended (but unnecessary) C-section.
Strategy of Distraction
Responding to a chorus of opposition to the arrest, the press and the prosecution are now depicting Melissa Rowland as irrational because they claim she suffered from mental illness, and immoral because she used drugs. In addition to the serious questions these comments raise about violations of patient's rights to medical privacy, it is clear that all adults -- even those with mental disabilities -- have a right to informed consent. If mental illness had truly been an issue, resorting to civil competency procedures, not the criminal law, was the proper thing to do. As for the allegations of drug use, Utah has as a matter of statutory law chosen to deal with issue of pregnancy and drug use through the public health and child welfare systems, not the criminal law. This decision comports with 48 other states and the unanimous recommendations of leading medical and child advocacy groups.
Today both the law and medicine agree that coerced medical interventions on pregnant women are an abuse of medical and state authority and that while pregnant women do not always make the right decision, in America, it is the person on whom the surgery is to be performed who gets to decide. In spite of this, Utah prosecutors apparently think that a pregnant woman who exercises her constitutional and common-law right to refuse medical advice can be arrested for murder. This is not only a clear misuse of the law, it is dangerous to children and fundamentally dehumanizing to pregnant women and their families.
Lynn M. Paltrow is the executive director of National Advocates for Pregnant Women.