When a Woman’s Fetus Has More Civil Rights than She Does

We recently discussed the lack of protection that the Federal Constitution provides citizens from abusive practices put into law by federal, state or local legislatures.  The Bill of Rights is easily trumped by law.  The origins of this imbalance and its ramifications were discussed in The Death of Justice and the Tyranny of Law.  The focus there was on civil-forfeiture laws, which allow a person’s assets to be confiscated without the need to prove guilt of a crime.  The “Death of Justice” refers to the demise of the concept of trial by jury.  Today, legislators, prosecutors, and judges have created a system by which those arrested can be rapidly processed and incarcerated without the need to ever prove anyone was guilty and deserved to go to prison.  Over 95% of cases are plea bargained and never go to trial.

In the New York Times, Lynn  M. Paltrow and Jeanne Flavin provided a look at another area in which egregious denials of civil rights are executed by law enforcement agencies: Pregnant, and No Civil Rights.  The desire by many to criminalize abortion and promote fetal rights has led to numerous cases where the rights of the pregnant woman herself have been trampled on.

“But it is not just those who support abortion rights who have reason to worry. Anti-abortion measures pose a risk to all pregnant women, including those who want to be pregnant.”

“Such laws are increasingly being used as the basis for arresting women who have no intention of ending a pregnancy and for preventing women from making their own decisions about how they will give birth.”

These examples are provided:

“In Iowa, a pregnant woman who fell down a flight of stairs was reported to the police after seeking help at a hospital. She was arrested for ‘attempted fetal homicide’.”

“In Utah, a woman gave birth to twins; one was stillborn. Health care providers believed that the stillbirth was the result of the woman’s decision to delay having a cesarean. She was arrested on charges of fetal homicide.”

“In Louisiana, a woman who went to the hospital for unexplained vaginal bleeding was locked up for over a year on charges of second-degree murder before medical records revealed she had suffered a miscarriage at 11 to 15 weeks of pregnancy.”

“In [Florida]….a woman was held prisoner at a hospital to prevent her from going home while she appeared to be experiencing a miscarriage. She was forced to undergo a cesarean. Neither the detention nor the surgery prevented the pregnancy loss, but they did keep this mother from caring for her two small children at home.”

“Anti-abortion reasoning has also provided the justification for arresting pregnant women who experience depression and have attempted suicide. A 22-year-old in South Carolina who was eight months pregnant attempted suicide by jumping out a window. She survived despite suffering severe injuries. Because she lost the pregnancy, she was arrested and jailed for the crime of homicide by child abuse.”

This case from Florida indicates how the rights of a pregnant woman can be taken away by the state.

“….a woman who had been in labor at home was picked up by a sheriff, strapped down in the back of an ambulance, taken to a hospital, and forced to have a cesarean she did not want. When this mother later protested what had happened, a court concluded that the woman’s personal constitutional rights ‘clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child’.”

These types of events are not unique cases.  They have been occurring for many years and are becoming more frequent.

“Last year, we published a peer-reviewed study documenting 413 arrests or equivalent actions depriving pregnant women of their physical liberty during the 32 years between 1973, when Roe v. Wade was decided, and 2005. In a majority of these cases, women who had no intention of ending a pregnancy went to term and gave birth to a healthy baby. This includes the many cases where the pregnant woman was alleged to have used some amount of alcohol or a criminalized drug.”

“Since 2005, we have identified an additional 380 cases, with more arrests occurring every week. This significant increase coincides with what the Guttmacher Institute describes as a “seismic shift” in the number of states with laws hostile to abortion rights.”

Those who would enshrine fetal rights into law can write that law in such a way that the fetus has a robust set of rights, while the poor pregnant woman has only an indifferent and archaic Constitution to protect her.

The authors conclude with this plea:

“We should be able to work across the spectrum of opinion about abortion to unite in the defense of one basic principle: that at no point in her pregnancy should a woman lose her civil and human rights.”

Lynn M. Paltrow is a lawyer and the executive director of National Advocates for Pregnant Women, where Jeanne Flavin, a sociology professor at Fordham University, is the president of the board of directors.