Favoring Fetal Rights Raises Troubling Questions

The debate over fetal rights just became a little more heated.

Earlier this week, the Utah state legislature passed a bill that would allow women to view the heartbeat of their fetus prior to an abortion. While the language of the bill, championed by Rep. Carl Wimmer, doesn’t specifically require abortion providers to show the ultrasound to women seeking an abortion, some sources have rightly concluded that deterring abortion is Wimmer’s motivation.

This type of law isn’t a new one. Eight states currently require that women be informed they have a right to view the ultrasound, and must be allowed to view the image if requested. Fourteen other states have a grab bag of laws that either mandate ultrasounds or have provisions that women be permitted to view an ultrasound if it is going to be performed as part of the routine abortion anyway. And more states are considering their own ultrasound mandates.

More troubling is some of the rhetoric contained within the legislation. Wimmer crafted a specific reference to viewing the “heartbeat” of a three-week-old fetus, language which Minority Leader David Litvack stringently opposed on medical grounds. Litvack’s objections are well-founded, because a fetus has no heartbeat at three weeks. Wimmer dismissed Litvack’s disagreement, remarking that there are arguments to both sides of the issue.

Wimmer describes his tactics as based in research, asserting that establishing a bond between mother and fetus through an ultrasound will end the ambivalence a woman experiences when deciding to terminate a pregnancy. As it turns out, Wimmer’s war on ambivalence is just the tipping point. Across the country, states are taking more drastic measures to circumvent abortion and grant fetal rights. It’s an alarming trend that is steadily gaining root in several states, including Iowa and Florida.

Just last month, Christine Taylor, a 22-year-old mother of two, experienced first-hand the presumption of protection of a fetus at the expense of the woman. After experiencing an accident where she fell down the stairs, the six-months pregnant woman decided to seek medical attention to make sure her fetus was okay. After receiving treatment, Taylor admitted to her caregiver that the separation of her husband and demands of her other two children made her “ambivalent” about her current pregnancy, at times leaving her to consider abortion. In the end, Taylor was arrested on the assumption of attempted feticide, or the illegal killing of a fetus. Taylor disputes that she ever stated she didn’t “want” her child, lamenting her reputation and ability to care for her other children has been destroyed.

It may seem draconian to imagine a woman could face jail time for what boils down to being unsure about a major life change, but the actions of the Iowa police have legal merit. The laws that empowered the victimization of Taylor started out with the best of intentions. In 2002, California housewife Laci Peterson disappeared. Four months later, her brutally decapitated body and that of her separated fetus washed ashore. The sheer horror of Peterson’s murder, especially the gruesome removal of the fetus she intended to name Conner, rallied the community to action. Lawmakers passed the Unborn Victims of Violence Act in 2004, more colloquially called the Laci and Conner Law. It allows for individuals to be held responsible for their actions that cause the death of a pregnant woman and thereby the fetus, or only the death of a fetus. Under the broader aspects of the law, a drunk driver is just as culpable as a serial killer.

But fetal protection laws have become a much more dangerous creature. Such laws not only represent a backdoor to abolishing abortion but also they leave open the possibility that the laws used to prosecute those who assault pregnant women may be directed against pregnant women themselves, as Taylor witnessed. Worse still, the laws allow a loophole for the rights of the fetus to actually trump those of their expecting mothers, like the Samantha Burton case.

Burton is currently suing the state of Florida for their handling of her pregnancy. In March of last year, Burton, then 25 weeks pregnant, was instructed to go on bed rest due to her high risk of miscarriage. As the sole provider for her two children, Burton was in no position to simply take a leave of absence. Burton requested a second opinion and her doctor asked the state of Florida to intervene. The ending result was Burton being confined for several days, forced to submit to all medical treatment against her will, and ultimately a Cesarean section. Had the pregnancy gone to full-term, Burton would have been a virtual prisoner of Tallahassee Memorial Hospital for up to 15 weeks. Instead, three days after she was sentenced to bed rest, Burton’s doctors ordered an emergency Cesarean to discover the fetus had already died.

Yet the most problematic aspect of the Burton case is how the rights of a recognized person were completed circumvented in the interest of a non-person (abortion fanfare aside, most states with feticide laws make a distinction that a fetus does not constitute a person). Burton’s fetus was granted court protection, as well as its own doctor. Burton herself was given no legal representation, never mind protection, and her doctors were expected to acquiesce to the decision of the fetal doctor. For her part, Burton was compelled by the court to submit to any and all medical interventions deemed necessary to protect the health and life of the her fetus. Essentially, her rights, as a certifiable person, came in a distant second to the illusionary rights of her fetus.

As Jeanne Flavin, author of “Our Bodies, Or Crimes: The Policing of Women’s Reproduction in America,” argues, such laws have and will continue to be means to control and punish pregnant woman exclusively.  Laying out her argument as a landscape of America’s changing polarity with fetal protection, she ultimately concludes “They [the laws] are simply not designed to protect and support the woman who carries the fetus.”

Despite where one stands in the abortion debate, there is a compromise to be had. The cases of Burton and Taylor swing dangerously close to “unconstitutional” territory, with the presumption of the fetus being treated as primary to the woman’s second-class citizen status. Neither Burton nor Taylor had any interest in losing their pregnancies, meaning they should have been exempted from the Laci and Conner law. Both women were, in their respective ways, attempting to fully consider the full spectrum of their reproductive autonomy which is guaranteed to them by being actual citizens.

The ultimate execution of the law should be at those who attempt to injure pregnant women (especially given that, in recent years, homicide has emerged as a leading cause of death for pregnant women) instead of targeted against the women themselves.