States pass laws protecting 'fetal rights'

Posted on Mon, Jul. 10, 2006
States pass laws protecting 'fetal rights'
By RICK MONTGOMERY
Kansas City Star





In Arkansas, lawmakers are considering making it a crime for a pregnant woman to take a drag off a cigarette.

In Utah, a woman serves 18 months' probation for child endangerment after refusing to undergo a Caesarean section to save her twins, one of whom died. In Wisconsin and South Dakota, authorities can haul pregnant women into custody for abusing alcohol or drugs.

And July 1 in Alabama, Brody's Law took effect. It enables prosecutors to level two charges against anyone who attacks a pregnant woman and harms her fetus.

Are these common-sense measures to protect America's most helpless citizens-to-be -- or something else?

Abortion-rights groups see this wave of "fetal protectionism" as a setup to make a fetus a person, entitled to constitutional rights, contrary to how the Supreme Court ruled in Roe v. Wade.

But anti-abortion forces -- plus some groups with no stake in the fetal-rights debate -- say it's a no-brainer that society do whatever it can to keep developing babies safe and healthy.

"It's an economic issue and a public-health issue," said state Rep. Bob Mathis, an Arkansas Democrat who touts a record backing abortion rights and recently floated the idea of a smoking ban during pregnancy.

A tragedy in Wichita last month underscored the intractable politics at work.

The killing of 14-year-old Chelsea Brooks, who was nine months pregnant, became a political cause celebre after her family learned that the state could not file homicide charges in the death of Alexa -- the daughter Chelsea was carrying. Three people, including her boyfriend, have been charged in Chelsea's killing, which authorities say was a murder for hire.

Legislative inaction this year on a fetal-homicide bill kept Kansas from joining more than 30 states, including Missouri, where murder laws include the unborn as legal victims.

The anti-abortion group Kansans For Life leapt on the controversy, accusing Senate moderates and Gov. Kathleen Sebelius of "kowtowing" to abortion-rights forces by stalling a bill that might have given Chelsea's family the justice it sought.

"Two lives were taken from us," Chelsea's mother said in a statement to the media. "We will do whatever it takes to make sure that the law, in the future, recognizes all life."

Critics of fetal-rights legislation see a slippery slope in the making. In some states, prosecutors have turned such laws against mothers whose behavior -- typically methamphetamine or crack use -- may have contributed to a stillbirth or to costly birth defects.

Taken further, could authorities charge pregnant women who reject a doctor's advice to take prenatal vitamins and then miscarry? How about banning them from playing sports? And why not punish alcoholic men whose addiction, studies show, could affect sperm and produce birth defects?

"What we're seeing is a political trend in which the fetuses are coming first, and the rights of women... are coming last," said Lynn Paltrow, executive director of the National Advocates for Pregnant Women.

"I think 30 years of anti-abortion rhetoric --'women killing their babies' -- has led to a moral vilification that doesn't just stick to those who seek to terminate a pregnancy. It's spreading to all pregnant women."

Still, many courts have been uneasy about how far fetal rights can go.

Saying prosecutors overreached, a Texas appeals court last year unanimously threw out the convictions of two women charged under the state's Prenatal Protection Act for "delivering" cocaine and methamphetamine to their babies through the umbilical cord.

"It makes sense that if a woman's right to privacy encompasses decisions regarding procreation, such as contraception and abortion, it should also include decisions regarding health during pregnancy," wrote Chicago lawyer Erin Linder in the September issue of University of Illinois Law Review.

Even Mathis, the Arkansas legislator, harbors doubts about the state's ability to enforce an anti-smoking law. "The more I think about it... you might end up with a fat lip" if police approach a smoker who is overweight but not pregnant, he said.

In Kansas, fetal-rights advocates pushed a homicide bill that took the mother out of the equation.

Bill 2300 -- overwhelmingly passed by the House in March 2005 -- specifically excluded abortion and "any act committed by the mother of the unborn child" from the law's reach.

It contained, however, a clause that made moderates suspicious: "As used in the Kansas criminal code, 'person' and 'human being' also mean an unborn child."

State Sen. John Vratil, a Republican and chairman of the Senate Judiciary Committee, where the bill landed, said the language "makes it an abortion bill (because) it would implicitly indicate that life begins at conception."

In any case, his committee received the bill from the House in late March -- too late, he said, for senators to schedule a hearing before the end of the spring session.

Another Republican judiciary committee member, conservative Sen. Phil Journey, is dubious of Vratil's explanation.

"I brought it up at the beginning of the session and was promised the bill would get a hearing," Journey said. "Now the bill is dead -- and so is Chelsea's baby."

So goes the tenor of the debate.

Said Vratil: "Given the history of abortion and the controversial nature of the debate, I don't think you can fashion a bill" that would make killing an unborn child a crime -- and satisfy both sides with the terms.









© 2006 Wichita Eagle and wire service sources. All Rights Reserved.
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