Court Cases Tackle Fetal Rights

By all accounts, Samantha Burton seemed like a responsible woman. When she started having complications in her 25th week of pregnancy, the Florida mom of two went to see her doctor. When he ordered bed rest for the remainder of her pregnancy—potentially 15 weeks—she wanted a second opinion. "I did not feel I was receiving the care I needed," she told NEWSWEEK, in a prepared statement.

But Burton did not get a second opinion. She was not allowed to leave the hospital. After she protested her doctor's orders, the hospital obtained a court order requiring her to comply with her doctor's medical advice as to "preserve the life and health of Samantha Burton's unborn child." So Burton remained in the hospital where, three days later, she miscarried.

Last week, Burton's case was back to the courts; she is appealing the government-mandated bed rest as unconstitutional. "Ms. Burton literally became a ward of the state, incompetent to make her own medical decisions, simply because she was pregnant," her lawyer, David Abrams, told NEWSWEEK in an interview. Meanwhile, in Vermont, state senators began arguing potential legislation: should they impose stiff penalties for acts causing the death of a fetus? And in Kansas, motions began on the trial for Scott Roeder, the man who has admitted to killing late-term-abortion doctor George Tiller. Roeder has said he killed Tiller because "preborn children's lives were in imminent danger."

The three cases, admittedly, deal with very different situations. But at some level, they all grapple with the same question: what rights, if any, does a fetus have? The answer is a complicated one that has evolved over the past 40 years. The fact that we still struggle with it today underscores a national schizophrenia in our thinking about pregnant women, how they ought to act, and whose interests they must consider. "When you see these cases, to this extent," says Lynn Paltrow, executive director of the National Alliance of Pregnant Women, "It makes me think we're still engaged with a fundamental question of whether, upon becoming pregnant, women are still full citizens."

Supporters of fetal rights say that, just as the state would intervene on the behalf of a neglected child, they ought to have the ability to intervene on the behalf of a fetus. Willie Meggs, the state attorney in Florida's Second Judicial District, is arguing Florida's case against Burton. He compares it to others in which the state might intervene, like parents who refuse life-saving treatment for their child on religious grounds. "If an adult waives treatment, that's fine by us," says Meggs. "But if it's a child, an unborn child, or a retarded individual who can't make decisions for themselves, then the court steps in and makes those decisions on their behalf."

Critics of these laws say they go too far by establishing a fetus as an entity with its own rights and interests—an act that strips the woman carrying a fetus of many of her rights. Despite repeated attempts by pro-life groups in recent years, no state has ever established the fetus to be a person. And without personhood, fetuses are not entitled to constitutional rights. "In some cases there's an assumed interest of the fetus, but that's not the constitutional standard," says Diana Kasan, a staff attorney with the American Civil Liberties Union, who is involved in the Burton case. "We don't have two independent interests in these cases. We have one."

Attempts to protect fetuses via the courts have appeared steadily, albeit infrequently, through the courts for the past 30 years. "Since the 1980s, you've seen cases involving forced medical interventions, as well as attempted prosecutions of women for conduct during pregnancy, like using drugs or drinking alcohol," says Rachel Roth, author of Making Women Pay: The Hidden Costs of Fetal Rights. "If you look back as far as the 1970s, you see companies not allowing women certain jobs unless they could prove they were sterilized, out of fear that there would be toxins harmful to the fetus."

In general, courts tend to rule against the state's ability to act in defense or on behalf of the fetus given that, unlike a minor, a fetus is not recognized under U.S. law as a person. The issue went to the Supreme Court in 2000, when Crystal Ferguson challenged a South Carolina program surreptitiously drug testing pregnant women. If they were found to be positive, the information would be turned over to the police, the justification being the fetus's well-being. In Ferguson v. The City of Charleston, the court ruled 6–3 that the state's interest in protecting the fetus did not outweigh the pregnant woman's Fourth Amendment right to privacy. Justice Stevens, writing on behalf of the majority, opined that "this case simply does not fit within the closely guarded category of 'special needs.' "

But there is at least one area in which the movement for fetal rights has been particularly successful: fetal homicide, or "feticide," laws, which generally criminalize acts that terminate a pregnancy outside of abortion. Thirty-seven states have some form of a feticide law, 19 of which apply in early stages of pregnancy (the rest specify a later point in gestation). In 2004, Congress enacted and President Bush signed the Unborn Victims of Violence Act, which recognizes the "child in utero" as a legal victim if he or she is injured or killed during the commission of any of 68 existing federal crimes of violence. The law is often referred to as Laci and Conor's Law, after Laci Peterson who was murdered in the third trimester of her pregnancy and had intended to name her son Conor.

The Vermont legislature is currently debating a similar law after Patricia Blair lost a twin pregnancy in a drunk-driving accident. The new legislation, introduced by state Sen. Vincent Illuzzi would allow for the drunk driver to be charged with double homicide. "I don't think we should allow people to engage in this kind of behavior without specific consequences," says Illuzzi. Illuzzi is a supporter of abortion rights—he notes that his bill points out, in three separate instances, that its not meant to curtail a woman's right to chose—and does not see why these bills are so regularly opposed by the large pro-choice advocacy groups, like Planned Parenthood and NARAL Pro-Choice America. "If you actually read the bill, you see we're not eroding the right to an abortion," he says. "You're creating a consequence for taking something away from a mother and father."

But laws like his, passed with relatively narrow and specific purposes, can become entangled in other fetal rights issues. Meggs, for example, in making his case against Burton, used his state's Unborn Victims of Violence Act to explain to NEWSWEEK why the state has legal grounds to act on the behalf of a fetus. "We've charge people who have killed a pregnant woman with two counts of murder," he says. "Why can't we try to keep the child alive?" Fetal rights legislation is, in this way, incredibly complicated.

Burton, for her part, is trying to move on. She is still a mom in Tallahassee, with a job to attend to and kids to watch. "The entire experience was horrible, and I am still very upset about it," she said in her statement for NEWSWEEK. "I appreciate all those who have voiced their support for me, and I hope nobody else has to go through what I went through." But with little agreement on what rights fetuses do and do not have, its doubtful that her hopes will prove true.

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