Abortion in the News

The first fetal rights were ironically granted by the US Supreme Court in the Roe v Wade decision by virtue of the fact that, while guaranteeing women the right to choose to terminate a pregnancy, put limitations on when that could be done. This was really the first time that there was potential for conflict between the rights of the fetus and the rights of the pregnant woman.

Fetal rights laws that granted legal personhood to an unborn fetus began appearing on the books sometime after 1992, after Tracy Marciniak's estranged husband came over to her house, punched her in her very pregnant stomach and later that night, doctors were unable to find a heartbeat for the unborn fetus and who was ultimately stillborn. Now fetal rights laws exist in 28 states, about half of which treat the fetus as a person from the moment of conception.

I have for many years argued against all fetal rights laws and all attempts to define "personhood" as beginning at the moment of conception. There is no way to guarantee that any unborn fetus will survive to delivery. There are far too many things that can go wrong, too many things about pre-natal medicine we don't understand and too many ways in which fetal rights laws can be misused and abused.

Now a new law being proposed in Colorado seeks to define personhood in an even broader sense. Amendment 62 states "the term 'person' shall apply to every human being from the beginning of the biological development of that human being." While most people might assume that means at the moment of conception, in truth, the "beginning" might be construed to be even before conception, with the unfertilized egg and sperm. Eventually, some radical religious group will use the language in this proposed amendment to the state's constitution to attempt to outlaw masturbation.

While that may seem far fetched, so too did many of the ideas I proposed in the article I wrote called "An Effective End to Abortion?" Suggestions like women being arrested for drinking too much while they're pregnant. And yet there are now laws on the books in five states that allow the state to place pregnant women under "civil confinement" in an institution to monitor the amount of alcohol she drinks. What if she over-exercises? Or gets too stressed out? Or doesn't eat properly? Where will the government intrusion into the lives of women stop? If we can monitor how much she drinks while pregnant, why not monitor how much she drinks all the time since she might be pregnant and not even know it yet! Or, in the case of Amendment 62, she might be damaging the eggs. Of course, the same could be said about men and drinking. They might be damaging the sperm. So let's outlaw all alcohol, tobacco, and anything that's bad for you and monitor every aspect of your life until you're past childbearing age if you're a woman or past being able to father a child if you're a man.

If Amendment 62 passes in Colorado, it will be interesting to see if there will be a clash between the federal right to an abortion and the state's ban on any contraceptives other than barrier methods. Contraceptives like the new FDA-approved ellaOne, which prevents pregnancy up to five days after unprotected sex. Of course, choice opponents consider this pill a form of abortion since they say that the egg may be fertilized but the effects of the pill do not allow it to implant, thereby making it a de facto abortificant. It will be available by prescription only and you can bet that that will revive the "pharmacist rights" controversy. (As an aside, imagine a pharmacist who believed that God alone should provide healing. They could, using the same logic as those who refuse to fill Plan B or other abortion related prescriptions, refuse to fill any prescriptions, even for things like insulin. How long do you think people would put up with such a pharmacist, and yet simply because they issue is abortion, they can get away with it.)

Of course, then you have stories like the one about the 20 year old Michigan woman who says that the doctor forced her to go through with an abortion when she was 18 even though she told him to stop. The doctor says that her water was already broken and that she was bleeding and he had to continue. (Mind you, there's only a slight mention of the fact that this woman was pregnant at 18 by a much older boyfriend, which begs the question of were they having sex when she was still a minor?) Stories like this inflame emotions on both sides of the debate and muddies the waters that are already almost impossible to see through.

Abortion is a private, personal matter between a woman and her doctor. The government needs to stay out of the whole debate. Personal morals are never a good foundation for laws. And until we understand all there is to understand about pregnancy and pre-natal care, until we can predict with 100% certainty which pregnancies will make it to term and which will not, giving a fetus legal standing means that juries will have to ignore the "reasonable doubt" test to determine guilt or innocence since there is already more than reasonable doubt that every pregnancy will result in a live birth.