Cases from across the country prove that if the unborn are recognized as legal persons with separate human rights, the government will have the power to deprive pregnant women of their rights to informed consent, due process, liberty, and even life.
Written by Lynn Paltrow for RH Reality Check - News, commentary and community for reproductive health and women's rights.
This summer, the question of abortion and the rights of the unborn once again took center stage as a presidential campaign issue. In August, at the Saddleback Civil Forum, Pastor Rick Warren asked both presidential candidates: "At what point is a baby entitled to human rights?" Senator John McCain's answer, "at the moment of conception," immediately established his anti-abortion bona fides.
But the right answer, as a matter of international human rights principles and simple justice, is: human rights attach at birth, not at conception.
This is the only position that ensures that upon becoming pregnant, women do not lose their human rights.
Cases from across the country prove that if the unborn are recognized as legal persons with separate human rights, the government will have the power to deprive pregnant women of their rights to informed consent, due process, liberty, and even life - without any guarantee that the interests of the unborn will in fact be protected.
After Ayesha Madyun's water broke, she went to the hospital where she hoped and planned to have a vaginal birth. When she didn't give birth in a time-frame comfortable to her doctors, they argued that she should have Cesarean surgery. The doctors asserted that the fetus faced a 50-75 percent chance of infection if not delivered surgically. (Risks of infection are believed by some health care providers to increase with each hour after a woman's water has broken and she hasn't delivered.) The court said, "[a]ll that stood between the Madyun fetus and its independent existence, separate from its mother, was put simply, a doctor's scalpel." The court granted the order; the scalpel sliced through Ms. Madyun. After the delivery, there was no evidence of infection and no evidence that any human rights were advanced - for the born or unborn.
Relying on fetal rights arguments, authorities in Utah arrested a woman for murder because she delayed a C-section causing, the state alleged, the stillbirth of one of her twins.
Other women have been charged with homicide based on the claim that the stillbirths they suffered were caused by an illegal drug they took. Recently, a unanimous South Carolina Supreme Court had to overturn Regina McKnight's conviction for homicide by child abuse. After Ms. McKnight had served more than eight years in prison, the court finally recognized that her conviction had been based on "outdated" research and that her trial counsel had failed to call experts who would have testified about "recent studies showing that cocaine is no more harmful to a fetus than nicotine use, poor nutrition, lack of prenatal care, or other conditions commonly associated with the urban poor."
At least fifteen to twenty percent of all pregnancies end in miscarriage or stillbirth. Certainly, human rights are not advanced by creating a legal basis for treating miscarriages and stillbirths as murder.
Laura Pemberton wanted to have a vaginal birth after a previous delivery by Cesarean surgery. Because no hospital would admit her unless she agreed to deliver again by surgery, she stayed home to give birth. While there, in active labor and near delivery, an armed Sheriff knocked on her door. He had orders to take her into custody. He strapped her legs together and brought her to a hospital to determine whether she could be forced to have the Cesarean surgery. A lawyer was appointed for the fetus, but not for Ms. Pemberton. Ms. Pemberton vehemently opposes abortion, but she nevertheless believed in her right to evaluate medical risks and benefits to herself and her unborn child. She was forced to have the unnecessary surgery. When she later sued for violations of her civil rights, was told she had none.
My organization, National Advocates for Pregnant Women, is documenting hundreds of cases in which fetal rights have been used to justify denying human rights to women who have no intention of ending their pregnancies. If the unborn are granted human rights, courts will have jurisdiction over pregnant women whenever someone disagrees with their decisions to undergo chemotherapy, to continue taking anti-depressants, to continue working, to drink any amount of alcohol, to chose vaginal birth over Cesarean surgery and even if what the pregnant woman wants is, simply, to live.
At 27 years old and 25 weeks pregnant Angela Carder became critically ill. The hospital called an emergency hearing to determine the rights of the fetus. Despite testimony that a Cesarean section could kill Ms. Carder, the court ordered the surgery because the fetus had independent legal rights. As a result, Ms. Carder not only lost her right to informed consent and bodily integrity; she lost her life. The surgery resulted in the death of both Ms. Carder and her fetus.
Ms. Carder's case makes clear that the issue is not choice versus life, but life vs. life - that is whether the government should have the power to privilege fetal rights over maternal life.
Political candidates of all persuasions should rest assured that to oppose the recognition of human rights before birth is not to deny the value of potential life as matter of religious belief, emotional conviction or personal experience. Rather, it is to recognize the value of the women who give that life.
It is to recognize that there are not two different kinds of women: those who have abortions and those who have babies. Sixty-one percent of women who have abortions are already mothers. Over the course of their lives, 85 percent of all women bring life into this world and provide the majority of care for that life.
These women - all of them, whether they oppose or support legal abortion - struggle with U.S. policies that run counter to women's health and family well being. They are pregnant women who lack protection from workplace discrimination. They are parents and caretakers who lack economic and social supports available to women in virtually every other western industrialized country, like a national health care system and paid maternity leave.
And, whether they define themselves as "pro-life" or "pro-choice," most women believe, and justice demands, that they do not lose their human rights at the moment they conceive.
RH Reality Check produced a video countering the misinformation around the idea that personhood starts at fertilization: