By Jennifer Zimmerman
When we talk about reproductive rights the first thing that comes to most people’s mind is the right to abortion. However, reproductive rights encompass much more than that. The prolife movement has been pushing fetal personhood legislation that can potentially affect the rights of every pregnant woman, both those who want to continue their pregnancy and those who do not. Personhood rights would give a fetus full state constitutional rights from the moment it is conceived. Personhood legislation has passed in about five states, and been introduced and rejected in several others. However, many states that do not have personhood laws still favor the rights of the fetus over the rights of the person who carries that fetus and sustains its life.
What many people don’t realize, both those who are prolife and those who are prochoice, is that the right to abortive services also protects the rights of pregnant women who want to continue their pregnancy. When we limit these rights by placing restrictions on them, such as restrictions based on the age of the fetus, we are effectively limiting the rights of all pregnant women. If a fetus past the age of viability is legally a child and no longer a fetus, then what happens to the rights of the woman who carries that child? Often her rights are usurped in favor of the fetus she carries.
In Washington, DC cancer survivor Angela Carder was carrying a twenty-five-week-old fetus when a tumor was discovered in her lung. Carder opted for aggressive treatment and her husband, parents, and obstetrician all agreed on this treatment plan. Carder did not want a cesarean section to deliver her baby because she was not expected to survive it, but the hospital obtained a court order to deliver Carder’s fetus. Carder’s family and doctors and Carder herself opposed the surgery, and Carder repeatedly stated that she did not want it. Carder’s child was delivered by cesarean section and died within two hours of its birth. Carder died two days later.
In New Jersey, V.M. was asked to sign a standard pre-consent form allowing the hospital to perform a cesarean section if it should become necessary. V.M. refused to sign. The hospital felt she was behaving “erratically” and was “combative” while in labor, so they called for a psychiatric evaluation while she was in labor, even though this behavior during labor is quite normal. V.M. passed both psychiatric evaluations that were given to her during labor and was found to understand the choices she was making for herself and her baby. V.M. allowed certain medical procedures and refused others, including a potential cesarean section. This is well within a patient’s rights, as the right to informed consent provides that a patient has the right to choose or refuse any treatment. V.M. went on to deliver a healthy baby girl vaginally with no issues. However, a court order was obtained and her baby was taken away and given to a foster home. V.M. was later found to have a history of PTSD, and was determined to be an unfit parent. Custody has not been returned to her. V.M. would never have been deprived of custody based on having a mental illness alone had she not refused to sign the consent form for a cesarean section that she didn’t need.
In Wisconsin, Alicia Beltran informed the physician’s assistant providing her prenatal care that she had previously been addicted to the narcotic painkiller Percocet, but with the help of Suboxone, a drug used to wean her off the Percocet, Beltran was now totally drug free as confirmed by a urine test. The physician’s assistant recommended she go back on the Suboxone, but Beltran refused because of the risks to the fetus. This is when a court order was obtained to send Beltran to a drug treatment center against her will. Beltran was also charged with negligence, which could affect her right to custody of her child after it’s birth. Beltran was basically kidnapped and held against her will for the sake of her fetus, which would have been in more danger had Beltran taken the Suboxone.
In Florida, Samantha Burton was forced to stay in a hospital on bed rest against her will. In the twenty-fifth week of her pregnancy, Burton’s membranes ruptured, but she was not in preterm labor. Her doctor recommended bed rest, and when Burton said she wished to seek a second opinion, her doctor would not allow her to leave the hospital. The hospital obtained a court order requiring Burton to stay and undergo “any and all medical treatments” that her physician decided would be best for the fetus—a court order that was decided without providing Burton legal counsel. Burton, a single mother, had two toddlers at home and was worried about who would care for them and what would happen to her job during the months she would be in the hospital on bed rest. Three days later her fetus was delivered by cesarean section and was found to have died.
Just a few months ago in Texas, Marlise Munoz, fourteen weeks pregnant, was found unconscious on the floor of her home by her husband. She likely experienced a pulmonary embolism. It is unknown how long she and her fetus went without oxygen. Munoz and her husband were paramedics and she had made it clear to him that she would not want life-saving measures taken if there was no hope of recovery. Munoz’s husband and her parents support her wishes to be disconnected from the machines keeping her body alive despite her pregnancy. However, the state of Texas refuses, citing the Texas Advance Directives Act, “A person may not withdraw or withhold life-sustaining treatment under this subchapter from a pregnant patient.” However, as her family has pointed out, Munoz is not a patient, Munoz is brain dead with no chance of recovery. Munoz is currently twenty-two weeks pregnant and her fetus has been found to be “distinctly abnormal”. The fetus has heart problems, hydrocephalus, and a deformity of the lower extremities. A Judge has finally ordered the hospital to discontinue life support by Monday, January 27th, at 5 p.m. As of this writing there is no word on whether the hospital plans to comply with or appeal the decision. It also seems that the judge came to this conclusion specifically because the fetus was found to be “not viable,” so a situation like this could potentially occur again. A lawyer for the Munoz family, Jessica King, stated, “pregnant women die every day. They die in car accidents, of heart attacks and other injuries. And when they die their fetus dies with them. It’s the way it’s always been and the way it should be.”
To turn a pregnant woman’s body into a science experiment to see if it can gestate a fetus after death is unconscionable. This case also raises the question of who is going to pay to keep Munoz’s body alive for these weeks while she has been on life support? And who would have paid for the cesarean surgery her body would have been forced to undergo? Who would have paid for the medical care of her seriously ill fetus after it was born? If this fetus survived life outside the womb, it would likely need very expensive medical care for the duration of its life.
These cases are all different, but the common thread is that the pregnant woman herself—or her family in the case of her death—has had her rights to her own body taken away in the name of fetal rights. These cases clearly demonstrate that when a fetus is granted personhood rights, those rights take precedence over the rights of the mother. Any law that gives the fetus rights is detrimental to all pregnant women.
Where will fetal personhood laws lead? When constraints have been imposed on the right to abortion, such as ones involving the gestational age of the fetus, these restraints have limited the rights of pregnant women who wish to go to term. Fetal personhood laws, which would grant a fetus legal rights as soon as it’s conceived, further limit a woman’s rights to make decisions for her own body. Despite the fact that personhood laws have only passed in a handful of states, pregnant women are already having their rights limited in the name of the fetus. It is a physician’s responsibility to explain the risks, benefits, and alternatives to each proposed treatment, and it is then the patient’s right to choose or refuse that proposed treatment. A pregnant woman should have the legal right to refuse care, even if that care may save the life of her fetus. It is not uncommon for pregnant women and women in labor to be denied their rights to informed consent and decision-making power. Personhood laws will just make it legal to do so and worsen the situation. Reproductive rights are about much more than just abortion.