Pro Choice Abortion Arguments

Wednesday, October 27, 2021 1:21:24 PM

Pro Choice Abortion Arguments

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Responding to Pro-Choice Arguments

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Passage of fetal protection laws gives anti-choice forces a propaganda coup and a launching pad for arguments to restrict abortion. In a presidential election debate, Ronald Reagan cited a California "feticide" law as support for regarding abortion as murder, asking, "Isn't it strange that that same woman could have taken the life of her unborn child and it was abortion, not murder, but if somebody else does it, that's murder? The ACLU fully supports a woman's right to obtain redress under civil law for an injury to her fetus, and we support society's right to punish criminal conduct.

But we urge legislators and advocates of choice to take a careful look at bills designed to protect fetuses. They must be alert to the pitfalls in such bills and refrain from supporting statutes that endanger civil liberties. Legislation to protect fetuses can take many different forms. The extent to which such a bill may endanger reproductive rights depends on its specific terms and implications.

For example, states may: 1 amend existing homicide statutes to include the fetus as a possible victim; 2 pass statutes defining the fetus as a person or human being, thereby making the fetus fall within the compass of other statutes applicable to all persons or human beings; 3 enact freestanding statutes to define and penalize a new crime of injury to a fetus, fetal homicide, or "feticide"; 4 extend wrongful death statutes to permit civil suits against individuals who cause the death of a fetus; or 5 enact new statutes to penalize injury to a pregnant woman that causes her fetus to die or be injured. In some instances, two or more of these approaches to fetal protection may be combined in a single bill. To conform with the constitutional right to choose established in Roe v.

Wade, fetal protection legislation must exempt abortion from punishment. The exemption should explicitly cover: 1 abortions performed by health care workers with the consent of the woman or in medical emergencies; and 2 self-abortions. An exemption specifying " legal abortions" is not adequate, because a narrow interpretation of what constitutes a "legal" abortion could restrict the performance of abortions to physicians only, and put mid-level health care practitioners, or women who self-abort, in jeopardy of being prosecuted for murder.

Prosecutions for self-abortion occur even in the absence of fetal protection laws and provide cruel examples of what might result from such legislation. In the past three years alone, women in Florida, Tennessee, and Illinois faced criminal charges after desperate attempts at aborting themselves. In State v. Ashley, Florida authorities are pursuing a manslaughter charge against a year-old single mother who shot herself in the stomach after learning she could not obtain Medicaid funds for an abortion. Fetal protection legislation lacking an adequate exemption for abortion could make all abortions in a state illegal if Roe v. Wade were later overturned or undermined.

Even when fetal protection statutes do have such exemptions, zealous anti-choice prosecutors may try to intimidate abortion providers by threatening to use the statutes as grounds to indict them for murder if there are any deviations from strict abortion laws or regulations. Fetal protection bills must also exempt conduct of the pregnant woman herself. If they do not, they will encourage the "policing" of pregnancy by those attempting to control the conduct of pregnant women. Over the last twenty years, we've seen numerous women subjected to prosecution or civil lawsuits for engaging in both legal and illegal conduct that is potentially harmful to a fetus.

If fetal protection laws without adequate exceptions are adopted, state or local officials might feel licensed to prosecute a woman who smokes or drinks alcohol during pregnancy and subsequently miscarries or bears a stillborn fetus, or perhaps even a live baby in need of special medical attention. And women might be sued for "prenatal negligence" by their own children, as happened in Grodin v. Grodin, a case from Michigan in which a court held that a child could sue his mother for having taken tetracycline during pregnancy, allegedly resulting in discoloration of the child's teeth. We could also expect to see still more criminal prosecutions or child abuse or neglect proceedings brought against women who make childbirth choices of which doctors or judges disapprove.

In , Kentucky officials charged a lay midwife and her clients with reckless homicide in the death of a fetus during a home birth. And just this year, a Wisconsin judge ordered the detention of a woman who had disclosed her intention of giving birth at home over a doctor's objection. Such prosecutions and lawsuits for prenatal negligence infringe upon women's constitutional rights to privacy, equal protection, and due process.

They treat pregnant women differently simply because they are pregnant, subjecting them to standards that do not apply to anyone else. Some fetal protection bills disregard the Constitution's promise that citizens are entitled to due process of law. They violate due process guarantees if they lack a scienter requirement or are unacceptably vague. A scienter requirement specifies that the perpetrator of a crime must have intended to commit the crime. Such a requirement is usually necessary for a person to be convicted of an offense in criminal law. When legislation fails to address intent, as some fetal protection bills do, a person may be prosecuted and punished for a crime that he or she did not intend to commit, when a lesser charge would be more just.

Fetal protection bills also run the risk of being unconstitutionally vague if they do not define all of their terms and spell out precisely what conduct is prohibited. A fetal protection statute that leaves the public, health care workers, and law enforcement authorities uncertain as to its meaning is especially dangerous because it threatens to chill the exercise of constitutionally protected reproductive rights. Fetal protection bills must be analyzed very carefully. Serious thought should be given to the bills' possible uses and ramifications. Here is a checklist of some important factors that you should evaluate in the bills and discuss with us:.

The ACLU Reproductive Freedom Project recommends extreme caution about fetal protection bills because of the potential dangers for reproductive rights. We urge supporters of civil liberties to be sensitive about evaluating proposed bills on three different levels: 1 legal; 2 political; and 3 rhetorical. By "legal," we mean that they must determine whether or not the proposed legislation will infringe on individual rights. By "political," we mean that they must be aware what group, individual, or impetus is behind the legislation. And by "rhetorical," we mean that they must take care when they discuss or criticize fetal protection bills; our language should reflect understanding of why many people, including some who are pro-choice, might support fetal protection legislation.

While we need to make clear that we respect and sympathize with the many emotional dimensions of this issue, every effort must be made to ensure that fetal protection statutes will not pave the way for government actions that threaten women's rights or reproductive choice. Many states have "wrongful death" statutes, which allow someone acting on behalf of a deceased person -- usually a surviving relative or an administrator of the estate -- to recover damages for a wrongful or negligent act that caused the person's death. The state courts are divided on whether or not stillborn fetuses may be regarded as "persons" for the purpose of bringing wrongful death actions on their behalf.

The ACLU takes the position that when a prospective parent's plans to continue a pregnancy to term have beenfrustrated by others, that individual should be compensated for the loss of the pregnancy and the harm suffered. The prospective parent should bring a cause of action and be compensated under tort law, the area of the law concerned with compelling wrongdoers to compensate those whom they have injured. We do not, however, believe that legal action should be brought by a parent or other party on behalf of a stillborn fetus, either under a wrongful death statute or under tort law generally.

Legal claims made on behalf of stillborn fetuses risk intruding upon women's constitutionally protected privacy rights. A recent Florida case in which we participated, Young v. Vincent's Medical Center, demonstrates the important issues at stake when a wrongful death action is brought on behalf of a fetus. This question arose because a woman had brought a wrongful death action on behalf of her stillborn fetus to seek damages for a hospital's alleged negligence. The state court of appeals, as well as the district court, dismissed the plaintiff's claim on the ground that Florida law permits a cause of action for wrongful death only for those born alive.

In earlier cases, the court had consistently held that a stillborn fetus -- who was not born alive -- could not be considered a "person" with the right to bring legal action. We argued that any recognition of a cause of action on behalf of the stillborn fetus, if understood to separate the interests of the fetus from those of the woman carrying it, could needlessly compromise a pregnant woman's right of reproductive choice.

The central question posed by Young v. Vincent's Medical Center was not whether the prospective parent's loss should be compensated, but rather, how it should be compensated. The Project and the ACLU of Florida urged that any money damages should go to the prospective parent, who should be compensated for the loss of her child and the harm she suffered when her choice to continue a pregnancy to term was frustrated. In fact, there's a high level of dissatisfaction with abortion policy overall. Their positions don't fall along one side or the other. The debate is about the extremes, and that's not where the public is. The poll comes as several states have pushed to limit abortions in hopes of getting the Supreme Court to reconsider the issue.

Abortion-rights opponents hope the newly conservative court will either overturn Roe or effectively gut it by upholding severe restrictions. The survey finds that while most Americans favor limiting abortion, they don't want it to be illegal and don't want to go as far as states like Alabama, for example, which would ban it completely except if the woman's life is endangered or health is at risk. Don't see the graphic above? Click here.

Even though Americans are solidly against overturning Roe, a majority would also like to see abortion restricted in various ways. In a separate question, respondents were asked which of six choices comes closest to their view of abortion policy. Louis, the last location in the state that performs abortions. Eighteen percent said abortion should be available to a woman any time she wants during her entire pregnancy. Politically, abortion has been a stronger voting issue for Republicans than for Democrats.

This poll found that abortion ranks as the second-most-important issue for Republicans in deciding their vote for president, behind immigration. But for Democrats, it is fifth — behind health care, America's role in the world, climate change and personal financial well-being. The poll also notably found the highest percentage of people self-identifying as "pro-choice," those who generally support abortion rights, since a Gallup survey in December The pollsters attribute that shift to efforts in various states to severely restrict abortion.

When the debate starts overstepping what public opinion believes to be common sense, we've seen independents moving in Democrats' corner. The poll also asked a long series of questions to try to figure out what Americans support or oppose when it comes to potential changes to abortion laws pending in several states. Poll respondents were not told which states these proposals come from. There was also slim majority support for allowing abortions at any time during a pregnancy if there is no viability outside the womb and for requiring insurance companies to cover abortion procedures.

A slim majority also opposed allowing pharmacists and health providers the ability to opt out of providing medicine or surgical procedures that result in abortion. At the same time, two-thirds were in favor of a hour waiting period from the time a woman meets with a health care professional until having the abortion procedure itself; two-thirds wanted doctors who perform abortions to have hospital admitting privileges; and a slim majority wanted the law to require women to be shown an ultrasound image at least 24 hours before an abortion procedure.

When they advocate for their positions and change the debate toward the most extreme position on the issue, they actually do the opposite. They move public opinion away from them. The more vocal advocates on either side, however, have had the ability to shift the debate and public opinion to their point of view.

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