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Elevating the Legal Status of the Fetus: Pregnancy Prosecutions and Abortion Rights
Punishing women for their behavior during pregnancy is not a new practice. Nor does it show many signs of subsiding. In the 1999 legislative season there are at least 14 proposed "fetal protection" statutes in various statehouses and at least nine proposed statutes that would punish women for their behavior during pregnancy.
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"By attempting to elevate the legal status of the fetus, these prosecutors were paving the road for attacks on the right to choose abortion. In addition to proposing fetal personhood, they were trying to establish a new state interest in protecting the fetus from harm - an interest that could be used to restrict and even ban abortion."
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As the millennium nears, the fight against elevating the legal status of the fetus continues. According to Priscilla Smith, Deputy Director of Litigation at the Center for Reproductive Rights, these laws and policies have implications for abortion rights.
History
Over 200 women in more than 30 states have been arrested and criminally charged for their alleged drug use or other actions during pregnancy since the mid-1980s. In the height of the Reagan administration, as reports of crack babies swept the nation and Roe v. Wade's survival was in jeopardy, a host of prosecutions arose of pregnant women for their alleged behavior during pregnancy.
Women who used illegal drugs during pregnancy were prosecuted on charges such as delivery of drugs to a minor, child abuse and neglect, assault, and even homicide if the fetus died. "But the problem for prosecutors with using these statutes," explains Smith, "is that they were using statutes that criminalized harm caused to a person, not to a fetus."
As a result, prosecutors often based their arguments on a common law legal theory called the "born alive rule." According to this theory, if a fetus was harmed during pregnancy, was born alive and then died, it would be considered a person for purposes of homicide charges. In reality, the "born alive rule" was developed in the United Kingdom in the 1700-1800s to protect pregnant women from assault by another person. It had never been applied to the pregnant woman herself.
In other modern cases, such as those involving stillbirth, prosecutors argued that a fetus should be considered a person after viability. Some prosecutors charging women even argued that a fetus became a person before viability, says Smith.
Until 1996, courts unanimously rejected the prosecutions of women for behavior during pregnancy. Courts generally ruled that the definition of "child" or "person" could not be expanded to include a fetus. Child abuse and delivery of drugs to a minor must occur between two already-born persons, courts held. Because of the rejection of these prosecution theories, cases largely tapered off in the mid-1990s.
Then in 1996, the South Carolina Supreme Court upheld the conviction of Cornelia Whitner under the state's child abuse statute for ingesting cocaine during her pregnancy, the first time such a prosecution was upheld on appeal. Rather than relying on the "born alive rule," the court held that after viability a fetus is a person and that a pregnant woman could be prosecuted for any behavior that is potentially harmful to a post-viability fetus. As a result of this decision there has been a resurgence of cases, although no other court has adopted the Whitner reasoning.
Implications for Abortion Rights
Prosecutions of pregnant women for their behavior during pregnancy in the 1980s were part of an intricate plan by anti-choice extremists to eliminate women's right to choose abortions. "By attempting to elevate the legal status of the fetus, these prosecutors were paving the road for attacks on the right to choose abortion," says Smith. "In addition to proposing fetal personhood, they were trying to establish a new state interest in protecting the fetus from harm - an interest that could be used to restrict and even ban abortion."
This strategy is exemplified most recently in the anti-choice campaign to ban so-called "partial-birth abortion," in which public attention is placed on second and third trimester abortions and "cruelty" to the fetus. "By arguing that a fetus has legal rights greater than or equal to the rights of a woman, anti-abortion activists hope to ban post-viability abortions even when the woman's life or health is endangered, and to ultimately ban all abortions," says Smith.
Public Health and Policy Concerns
"Rather than punitive policies, we need a supply of treatment programs and resources with comprehensive services tailored to the special health needs of pregnant women," says Smith. It's not only bad policy, but hypocritical to punish pregnant women for failing to obtain treatment when no treatment programs exist, she explains. "To produce healthy pregnancies and healthy babies, pregnant women with drug and alcohol abuse problems should be encouraged to seek treatment, not be thrown in jail where neither treatment nor adequate prenatal care exists."
Every major medical group in the country opposes punitive responses to prenatal drug and alcohol abuse and supports rehabilitation versus imprisonment. Unfortunately, few locations have available treatment programs that accept pregnant women. Establishing prenatal drug treatment programs should be a priority public health goal in all states, says Smith.
- Melissa Querido
Worldwide
U.S. Moves Forward on International Promises
In March, a bipartisan group of Senators introduced a bill in the U.S. Senate to restore funding for the United Nations Population Fund (UNFPA), which provides humanitarian aid to hundreds of thousands of women around the world. The bill authorizes the appropriation of $25 million to UNFPA for fiscal year 2000 and $35 million for the following year and addresses critical public health and human rights concerns.
UNFPA is wholly funded by voluntary contributions from United Nations members to improve the quality and accessibility of voluntary family planning services in the poorest regions of the world. In 1997, UNFPA provided support services to 168 countries for reproductive health, including family planning, prevention and treatment of sexually transmitted infections, HIV/AIDS, infertility, and maternal and child health care.
A portion of UNFPA's funding supports the Safe Motherhood Initiative (SMI), launched in 1987 in collaboration with UNICEF, WHO, IPPF and the Population Council to study the causes of maternal deaths and debilities worldwide and propose strategies for improving the situation. Unsafe motherhood is caused by a number of factors including: women's poor health before pregnancy; inadequate, inaccessible or unaffordable health care; poor hygiene care during childbirth; discriminatory practices against women; and poverty. In particular, women in low and middle-income nations suffer higher rates of pregnancy-related illness and deaths.
In 1997, extremist Rep. Chris Smith (R-NJ) led a movement in Congress to defund U.S. contributions to UNFPA citing China's coercive reproductive health practices despite the fact that no funds were used to support coercive practices and UNFPA strongly opposes them. "This issue was used largely as an excuse to further an anti-reproductive health agenda," says Anika Rahman, Director of the International Program of the Center for Reproductive Rights. The small amount of UNFPA funds used in China are dedicated to developing voluntary and quality family planning programs aimed at helping couples plan the number and timing of their children. "Improving the quality of China's family planning program is key to insuring respect for human rights," says Rahman.
Extremist legislators with anti-reproductive health sentiments are expected to attempt to stop Congressional funding for these life-saving programs again this year. But this time the forces supporting funding for UNFPA seem more organized and ready for the fight.
The bill to support funding was introduced in the House of Representatives by Rep. Carolyn Maloney (D-NY) along with a bipartisan group of sixteen co-sponsors. It has already passed the House International Relations Committee by a vote of 23-17, even though Republicans control the majority of votes on the committee. Sen. James Jeffords (R-VT), along with one Democratic and two Republican colleagues, also introduced a bill to restore funding for UNFPA in the U.S. Senate.
A Close-Up Look at the Facts
- Each year 585,000 women die from complications during pregnancy and childbirth.
- More than one-quarter of all adult women in the low and middle-income nations suffer from pregnancy or childbirth-related illnesses and injuries.
- Complications of pregnancy and childbirth are the leading cause of death and disability for women aged 15- 49 in low-income countries.
- The risk of dying from pregnancy in industrialized nations is 1 in 1,800 as compared to low-income countries where the risk is 1 in 48.
- Globally, women face 75 million unwanted pregnancies every year.
- Fifty million of the unwanted pregnancies are terminated annually, and 20 million of these terminations are illegal (which translates to 55,000 unsafe terminations of pregnancies daily).
- 7.5 million perinatal deaths could be avoided each year through high quality maternal health and nutritional services.
- Wayne Kawadler
When Medical Care Turns to Terror: Peru Story
"'Lie down, child, so I can treat you.' He caressed my head. From there I don't remember anything. I woke up as if from a dream. My body hurt... He was at my side. He got up afraid. His hand had blood on it and he pulled up his pants. I was naked and afraid, and I began to cry."
- Testimony from 23-year old woman in Silence and Complicity
Silence and Complicity documents violations of the human rights of women who rely on public health facilities in Peru. A book in English and Spanish, it draws upon an analysis of cases, testimonies and group interviews that reveal physical, psychological, and sexual violence against women. In addition, patients describe practices that violate the rights to information about health care and the freedom to make informed decisions regarding reproductive health and family planning. Discrimination against the victims, particularly against those with little economic and social power, underlies the abuses, according to the book's analysis.
The Peruvian government is responsible under international law for the acts of violence and other abuses committed by providers of public health services, as well as for covering them up Silence and Complicity asserts. In addition, the authors conclude that the government does not have effective mechanisms to prevent the acts or punish those responsible.
Copies of Silence and Complicity are $10 plus shipping and handling, and may be ordered by contacting the Center for Reproductive Rights, publications@reprorights.org.
Legislative Update
Abortion Foes Try to Revive Old Attacks Placing Teens at Risk
"The Child Custody Protection Act" (S. 661) (HB 1218) was reintroduced in Congress in early March by abortion opponents. First introduced in 1997, the Child Custody Protection Act would make it a federal crime for any person, other than a parent, to transport a minor across state lines to avoid a state's law requiring notice to or consent by the teen's parents. Last year, the measure passed the House of Representatives by a vote of 276-150, but was blocked from passage in the Senate on a procedural vote.
In effect, the law would discourage caring adults - including grandparents, aunts and siblings - from assisting pregnant teens to obtain an abortion by subjecting those willing to help to arrest and conviction as federal felons. Violators of the law would face both criminal and civil charges, including imprisonment for up to one year, fines, or both. The measure, instigated by anti-abortion legislators, would create a dangerous situation for teens who might be forced to travel alone, navigate the system on their own, or seek illegal abortions, says Janet Benshoof, President of the Center for Reproductive Rights.
Unconstitutional, Deceptive: PBA is Back
The "Partial Birth Abortion Ban" (S. 928) was reintroduced in the United States Senate on April 29. The third introduction in four years, this legislation is an exact replica of the 1997 federal bill. Congress passed "partial-birth abortion" bills in both 1995 and 1997, but President Clinton vetoed the legislation on both occasions.
"Partial-birth abortion" is a term coined by anti-abortion forces who want to make all abortions illegal. There is no medical procedure called "partial-birth abortion." Although the rhetoric of opponents is that the legislation would outlaw only abortions performed late in pregnancy, the language of the bill is so broad that potentially all abortion procedures would be banned. This deceptive and extreme bill infringes upon the rights of patients and doctors to make private medical decisions without government interference and could subject doctors to arrest and imprisonment.
Versions of the proposed ban on "partial-birth abortion" have been enacted in 28 states. In 19 of the 20 states where legal challenges have been brought, the laws have been blocked or severely limited.
State Victories on Contraception
The good news for women comes in a spate of pro-contraception bills moving through state legislatures. Thirty-two states have introduced legislation this year which would require insurance companies or employers to pay for the costs of prescription birth control to the same extent that other prescriptions are covered.
Early in the legislative season two states - Georgia and Vermont - made the bills into law, and three more states are poised to do so - Connecticut, Hawaii and Maine. Last year, Maryland and Virginia passed contraception laws.
"These common sense laws are making reproductive health care more accessible to more women," says Karen Raschke, State Program Coordinator at the Center for Reproductive Rights.
The laws vary. The most comprehensive bills provide coverage for all FDA-approved birth control and for related medical appointments; cover employers and insurers.
"It's critical that the bills are not watered down with exceptions or limitations," explains Raschke. Anti-abortion lobbyists press for exceptions for certain health plans to refuse to provide contraceptive coverage. The result, says Raschke, is to discriminate against select women employees.
Medical Abortions: An Alternative for Women
Highlighted in this month's RFN is "Medical Abortion: An Alternative for Women." Later this year, non-surgical abortion may finally become available in the U.S. The Food and Drug Administration is expected to approve mifepristone - the pill known as RU 486 in France - for manufacture. Anti-abortion pressure to stop approval is already underway. The enclosed Fact Sheet gives you background on the uses and issues of medical abortion. All Center for Reproductive Rights fact sheets are available in our publications department, where you can learn about our initiatives in the United States and investigate the status of reproductive rights around the world.
In Person: Young Activists Tackle New Frontiers
Snapshots from the Next Wave
They are the post-Roe v. Wade generation and they get it. Unlike many other young adults, activists in the reproductive health and rights movement understand that women's rights are being threatened on a variety of fronts. Whether they know it or not, they are the next generation of leaders.
Of particular interest to young activists is the continuing struggle to make reproductive health and rights more inclusive of women of color, a theme that surfaced at recent meetings at Hampshire College in Amherst, Mass. and at the Ford Foundation in New York City.
Cindy Moon, 22, of the National Asian Women's Health Organization (NAWHO) based in San Francisco, works on a program that trains providers of breast and cervical cancer screenings. Moon has had a long-term interest in health care and began to focus specifically on reproductive health needs in a college women studies class on Asian American women.
"Asian American women have had to battle a range of stereotypes that say they're healthy, unassuming, unassertive, and weak," she says. "NAWHO exists to confront those stereotypes and empower Asian American women to be active advocates of their own health."
Alicia Baker, 23, works at the National Black Women's Health Project (NBWHP) in Washington, DC. She is a program associate in the Historically Black Colleges and Universities program and travels in the South, educating black college students on substance abuse prevention and other issues.
"I was particularly interested in this program because it involved direct outreach to a population that I had just come from - black college students. Black women tend to be on the margin when it comes to health programs," says Baker. NBWHP recently published Our Bodies, Our Voices, Our Choices, a book designed to help women and advocates better understand the unique reproductive health needs of black women.
Cynthia Eyakuze, 27, of the Center for Reproductive Rights' International Program, emphasizes her formative years in Africa as influential to her involvement in the reproductive rights movement. Eyakuze studied at a progressive international school in Swaziland that attracted students from over 50 different countries, including the children of Nelson Mandela. "The school emphasized community service as a requirement starting in the sixth grade," she explains.
Eyakuze, who previously worked at the Women's Environment and Development Organization (WEDO), focuses on many issues related to the United Nations. Of particular concern to her is the effect of HIV/AIDS on women in Africa which, she says, "highlights the detrimental effects of the unequal status of women in many African countries."
Dimple Abichandani, 25, understands the impact of law on women's health concerns and people's most private decisions. As a non-lawyer activist at the New York Civil Liberties Union, she works in the Teen Health Initiative.
"The notion of rights has the great potential to empower people, especially those that are disenfranchised, as most young people are," Abichandani says. "In my work with teens I clarify the laws and explain to them the 'rights' they have to health services and education. By addressing some of the legal concerns that teens have, such as 'Is an STD test confidential?' or 'Do I need parental consent to get an abortion?' my program assists minors in making informed choices." The process, she says, helps translate the laws into more concrete discussions.
- Suzanne Grossman
In the States
Legalized Abortion: A Public Health Success Story
A new report released by the Kaiser Family Foundation finds women generally give abortion providers high marks for the quality of care they receive. According to a survey of over 2,000 women who underwent abortion procedures, 60 percent of women rate the quality of their care as "excellent." Another third said their care was "very good" or "good." In addition to finding that women are highly satisfied with their abortion care, the survey, conducted by the Picker Institute, determined that the quality of abortion care is comparable to other outpatient surgery.
However, the high quality of care women receive from abortion providers is lost in the hostile anti-abortion climate shaped by threatening protesters outside clinics, and worse, the murder of seven clinic workers or doctors who performed abortions. Each year, hundreds of pieces of restrictive abortion legislation introduced by anti-choice lawmakers in states across the nation keep abortion in the news as a medical procedure that warrants strict government regulation.
Abortion opponents fail to acknowledge that legal abortion is a medical procedure that saves women's health and lives. It is unknown how many women died from abortion-related complications before Roe v. Wade made abortion legal in the U.S., although emergency room horrors are still ripe in the memories of senior physicians. Many women suffered an inability to reproduce after attempts to self-abort or after resorting to the shoddy abortion procedures of back-alley butchers. According to one study, nearly one million illegal abortions were obtained annually in the years prior to the adoption of more moderate laws in the late 1960s.
Efforts to outlaw abortion persist despite being widely recognized by medical experts to be one of the safest medical procedures performed in the United States today. The risk of dying from legal abortion in the U.S. is less than the risk of dying from a shot of penicillin - about 0.001 percent.
Despite the good safety records of abortion providers and the high level of women's satisfaction with their abortion experience, a recent trend in state legislatures has been to target abortion providers for excessive and more stringent regulation than is applied to comparable medical practices. Targeted Regulation of Abortion Providers (TRAP) legislation serves only the anti-choice advocates by making abortion prohibitively expensive and increasingly difficult to obtain, according to Bonnie Scott Jones, a staff attorney at the Center for Reproductive Rights.
Currently, abortion providers are subject to the same kind of oversight as other health care providers who provide similar services. TRAP places abortion providers outside current mainstream regulations and subjects them to different treatment. Arizona passed a TRAP law this session. Similar bills were introduced in 10 other state legislatures this year - Arkansas, California, Florida, Indiana, Kansas, Louisiana, Nebraska, Oklahoma, Texas, and Virginia.
A law in South Carolina was declared unconstitutional by a federal district court, which found that it violated the right of privacy and the right to equal protection of the laws. TRAP threatens women's health by imposing costs and risks not justified by any medical benefit, says Jones.
A new study by the Picker Institute adds a missing element to the abortion debate by presenting women's views of abortion based on their perspective as patients. The view is good. Findings of the new study show:
- 96 percent of women who had abortions said they would recommend their abortion provider to a friend or family member;
- 94 percent thought staff attention to privacy was "excellent," "very good," or "good;"
- 85 percent said they received as much information and counseling as they wanted; indeed, nine percent indicated they had received more information than they wanted.
While giving high marks to clinics, respondents also indicated areas where abortion providers could improve their services, including more privacy in recovery rooms, better phone resources after the procedure, and a recognition of patient concerns about confidentiality in the waiting room.
Cases Highlight Dilemma of Women Charged with Crimes
In Ferguson v. City of Charleston [No. 97-2512 (4th Cir. Ct. App.)] the Center for Reproductive Rights filed suit on behalf of ten women challenging the constitutionality of a policy implemented by the Medical University of South Carolina in conjunction with local police and prosecutors. The case is currently on appeal, awaiting a decision from the United States Court of Appeals for the Fourth Circuit.
Under the South Carolina policy, which was initiated in October, 1989 and suspended in September, 1994, a targeted group of pregnant women were subjected to urine drug testing without their consent when they sought medical services at the hospital. The hospital is the only public hospital in the area and the only one that accepts Medicaid. Virtually all of the women who were arrested under the policy were black, an issue that prompted charges of discrimination, among other claims.
Although supporters of the South Carolina policy claimed the goal was to produce healthy pregnancies and healthy babies, the actions actually threatened the health of women and the pregnancies they carried. "Policies punishing pregnant women do not deter them from using drugs; rather, they deter women with substance abuse problems from seeking prenatal care and drug treatment. That's exactly what we don't want to see," Smith explains. There was no treatment program in South Carolina at the time that was tailored to the needs of pregnant women who may require child care, transportation and prenatal care.
In the case of State of Wisconsin v. Deborah J.Z. [No. 96-2797-CR (Wisc. Ct. App. Dist. II)], the Center for Reproductive Rights represents a woman in her appeal of the trial court's ruling allowing criminal charges of attempted intentional homicide and reckless injury to stand against her based on her abuse of alcohol late in pregnancy.
In March 1996, Ms. Zimmerman was in an abusive relationship, unhappily pregnant, and addicted to alcohol. She gave birth to a child who was allegedly born with alcohol in her blood and was placed in a foster home.
On May 26, 1999, the Wisconsin Court of Appeals finally rejected the prosecution of Zimmerman for prenatal behavior. The homicide and reckless injury laws specifically referred to the "causing the death of another human being with the intent to kill that person," the court noted, and the term "human being" did not refer to an unborn child.
"If this prosecution had been allowed to go forward any behavior by a pregnant woman, such as smoking, drinking alcohol or caffeine, jogging too late into pregnancy, or failing to follow a doctor's orders, could be the basis for criminal prosecution," says Smith, who, along with the Center for Reproductive Rights lawyer Bonnie Scott Jones, handled the case.
- Margie Kelly
Facts
White women accounted for sixty percent of the 1.37 million abortion procedures in the U.S. in the last reported year of 1996. Black women are three times as likely to have abortions as white women and Latinas are approximately twice as likely.
SOURCE: Alan Guttmacher Institute
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