Feb 16, 2014, p. K.1
Copyright © Feb 16, 2014 The Boston Globe. All rights reserved. Reprinted with permission. Whose Rights?
By Ruth Graham
• A new wave of fetal-protection measures creates a collision in American law: two sets of rights in one body. In December of 2010, Bei Bei Shuai was pregnant, alone, and in despair: Her marriage had fallen apart, and her new boyfriend had broken his promise to leave his wife for her. In a desperate moment, the Indiana woman swallowed rat poison in an attempt to commit suicide. She survived; her fetus, delivered by caesarean section, did not. But instead of being sent home to receive mental health care, Shuai was charged with murder for attempting to kill the 8-month-old fetus, which enjoys its own separate protection under Indiana law. In August, she made a deal with prosecutors to plead guilty to criminal recklessness after spending more than a year in jail. Shuai is one of hundreds of women who have found themselves caught in a gray area that appears to be widening in American law. Thanks to a patchwork of state court decision and laws passed to protect pregnant women, punish abusers, promote public health, and discourage abortions, fetuses have steadily been gaining legal rights in American courts--rights that often conflict with those of the women who carry them. The shift has happened despite the failure, even in conservative states, of laws to establish "fetal personhood" outright. Within the last five years, pregnant women have been arrested under fetal-harm statutes after falling down the stairs and driving with blood-alcohol levels of just half the legal limit. Other women have been forced against their will to undergo caesarean sections, or spend months on bed rest. The laws can affect people well beyond the woman herself, as in the recent Texas case of Marlise Munoz, kept on life support for two months for the purpose of saving her fetus, despite her family's wishes that she be allowed to die. In Wisconsin last summer, a pregnant woman named Alicia Beltran was taken to court in handcuffs after refusing to take an anti-addiction drug for a painkiller habit she had already kicked on her own. The court initially ignored her requests for a lawyer, but appointed a legal guardian for her 14-week-old fetus. Lawyer and activist Lynn Paltrow, who is helping represent Beltran in a suit against several officials, coauthored a recent paper cataloging such cases and says she has found more than 700 instances since 1973 of women arrested, detained, or subjected to forced medical interventions because of issues related to their pregnancies. She is part of a group of legal scholars who are starting to raise the alarm about the breadth and meaning of what they see as a largely unappreciated shift in American law. "What it means is that all fertile women are responsible for knowing at every single moment whether they're pregnant," says Paltrow, founder and executive director of the National Advocates for Pregnant Women. "Because at that moment an entirely different legal system comes into play." Michele Goodwin, a law professor at the University of Minnesota who wrote a forthcoming article on the topic for the California Law Review, calls the issue a "new constitutional battlefront," turning pregnant women into unequal citizens in the guise of protecting them. Though many "feticide" laws were pushed by conservative activists who see them as part of the fight against legal abortion, other fetal-rights cases have emerged in court rulings on laws intended to protect children from drugs, or protect pregnant victims of domestic violence. Whatever the motives, the laws have an effect with no real parallel elsewhere in the law: Essentially, two entities have begun to compete for rights in one body. Underlying the phenomenon, the scholars are realizing, is an unsolved moral and philosophical question: how to establish protections for pregnant women...
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