Fetal Rights Part 3: Giving Fetuses Rights at the Expense of Female Freedom

The final article I'll include in my discussion of fetal rights is one that takes a very loud, potentially controversial standpoint about fetal rights: that they enslave a woman to her pregnancy. Despite the extreme viewpoint, I think this is something to examine: if we give fetuses so many rights, are we then by default limiting the rights of the woman in question? I've always thought so, that fetal rights inherently give a fetus precedent over the woman, which has never seemed fair to me. Kuswa, Achter, and Lauzon argue that "the fetal body presents a challenge for the pro-life position because its classification as a distinct life is continually in flux. Put another way, the gap between the adult body that usually serves as a sign of the citizen, and the body that is typically imagined as a fetus, helps us understand how pro-life rhetoric works. This move, we argue, invests the fetus with a body, a personhood, and a corresponding citizenship that is separate from and often at odds with its mother" (168).

They continue, "absent a discussion of the pregnant woman and her rights, fetal citizenship is elevated and given access to justice through the values of morality and life" (168). I think that phrase is very important: "absent a discussion of the pregnant woman and her rights." Because in the discourse about fetal rights, rarely do the pregnant woman's rights seem to come up. When they do come up, as discussed in Part 2 of this blog post series, it seems that the pro-life set tries to portray the fetal rights as coinciding with the woman's rights: that an abortion is counter to a woman's rights, and that keeping the baby is the best thing she could do for a myriad of moral reasons.

This article gives a very interesting argument for giving a fetus citizenship. They begin with this: "advocates of abortion restrictions declare that when a woman consents to sex she is simultaneously consenting to the risk of pregnancy" (172). But that argument is flawed, they say, "because even if the woman's consent to sex is explicit, she does not automatically consent to pregnancy in the same moment. For example, when a person decides to engage in a dangerous activity she recognizes that there is a risk of injury but does not necessarily consent to actually being injured" (172). This reminds me of contraceptives: none of them are 100% effective. But if a woman uses them, she's actively trying to prevent getting pregnant, though she acknowledges the small risk that the contraceptive might not work. Here is where the argument gets interesting: "women should have the right to abort the fetus even if they have consented to sex because [...] a person has the right to break a contract at any point in time, despite prior consent to the agreement" (172). So, even if the woman acknowledged the potential for getting pregnant, she can "break" that contract or that "consent to the risk of pregnancy" legally. "Abortion restrictions result in the involuntary servitude of women to the fetus and effectively impede pregnant women from exercising their right to break a contract with the fetus" (172). So even if the fetus is legally defined as a person, by this argument the woman still has the right to break her contract with that fetus--and they aren't even arguing this in the face of a fetus being a person. However, I can see the pro-life objection: breaking a contract isn't the same as "murder."

Another argument they make is that consent laws take away a woman's autonomy, and assume that a woman isn't intelligent enough (or is too much like a child who "needs guidance") to understand what an abortion really entails. "Laws such as informed consent are the state's attempt to persuade women to make the 'correct' choice by providing them with detailed information about abortion and its effects on the fetus. These laws presume that pregnant women are unaware of what an abortion actually is or its consequences" (174). In my posts about abortion myths, one of the myths is that women need these waiting periods to make sure they really want an abortion. The assumption there is that women haven't thought about it before making their appointment, which is insulting. Of course they have.

The woman becomes unimportant in the consideration of fetal personhood. "Abortion restrictions are an example of creating fetal citizenship in that they attempt to resolve conflict between the woman and the fetus while washing away the woman's identity based on gender or pregnancy" (179). This is why it's convenient to align a woman's rights with the rights of a fetus: if the same thing is in both of their best interests, it's easy to forget that the woman's rights to her own body are essentially being stripped away. "The pregnant woman is forgotten in the equation even though she is the essential component: she provides the body necessary for the fetus's existence and survival" (179). If a woman doesn't have the option to terminate a pregnancy, her actions are then restricted for nine months: most of these fetal homicide laws are at least trying to also prosecute women for doing drugs or engaging in risky activities while pregnant. Her own control over her life is limited if she is forced somehow to carry the pregnancy to term. "Representations of the independent fetus contribute to the constitution of the pregnant woman as a child with limited agency who needs help making important decisions in her life" (179). It seems that an individual should know one's body best, and should know what to do with her body better than anyone else. Unfortunately this attempt to give a fetus rights makes the assumption that if a woman chooses abortion, she can't possibly know what she's doing, and needs to be taken to the "correct" choice as soon as possible.

Is this a viewpoint that's too radical, too unfair to the people who want to make a fetus into a person? Or is there some merit here--that if a fetus is given so many rights, the rights of a woman are limited, and there's an underlying assumption that the woman doesn't know what's best for herself?

Source:

THE SLAVE, THE FETUS, THE BODY: ARTICULATING BIOPOWER AND THE PREGNANT WOMAN. By: Kuswa, Kevin; Achter, Paul; Lauzon, Elizabeth. Contemporary Argumentation & Debate, Sep2008, Vol. 29, p166-185, 20p

--Alexandra

Fetal Rights Part 2: Pro-Life Strategies

I read another article that examines the rhetoric and legislative strategy of pro-life: that they've altered the presentation of their position "from one that pits fetal rights against maternal rights, to one that emphasizes the unique and intimate bond between the woman and the 'child'" (Halva-Neubauer 101). I've mentioned this before, that when I look at pro-life propaganda and legislation, I'm always struck by the way they portray the fetus as a baby, not as something that will grow into a baby. As Halva-Neubauer and Zeigler say, they portray "the fetus as a living infant in other legal contexts, and [emphasize] what anti-abortion activists characterize as the painful, brutal, and inhumane nature of the abortion procedure and those who perform it" (102). As a visual rhetoric tool, "groups that do not focus primarily on abortion also advance the case for fetal personhood by employing imagery that portrays the fetus as a baby" (109).

It's much harder to make a case for fetal personhood when the rights of the fetus do not line up with the rights of the mother--when the rights of the fetus may, in fact, at times oppose the rights of the mother. But "the assertion that the interests of the fetus and the interests of the pregnant woman necessarily coincide represents and important development in pro-life advocacy work;" a development that makes it a lot harder to separate a pregnant woman from her unborn child (Halva-Neubauer 102). It's also a lot easier to argue for the rights of a person--which is why the pro-life side is arguing so hard for fetal personhood: "Pro-life activists adopt the view that abortion ends a human life and have consistently advanced the principle that the practice should be stopped, just like any other form of unjustified killing" (102).

Another part of the rhetoric strategy involves carrying the baby to term being presented as the best option for the woman. "Not only does the issue [of limiting reproductive choice] implicate control of women's sexuality, but it also reaches to the very definition of human life. [...] pro-life groups integrate the language of duty, morality, and women's traditional (and religious) role as mother" (107). In another blog entry, I mentioned a Tea Party candidate who saw abortion as "woman abuse"--this standpoint that abortion is bad for women is one that the pro-life movement has been taking more recently. Halva-Nebauer and Zeigler see it as a "shift from portraying the pregnant woman as the enemy to the woman as someone who has an intimate connection to the life within her, who requires education at worst and who can serve as an advocate for the fetus at best" (108).

The other way pro-life and anti-abortion activists created a strategy to argue for fetal personhood involved the assertion that a fetus can feel pain. Though this is hotly contested among scientists and activists alike, a film called The Silent Scream which was released in 1984 shows "a sonogram of a suction abortion at twelve weeks [...] when the fetus opens its mouth, apparently reacting to the fact that the suction pipe has located its body" (Halva-Neubauer 104-105). Regardless of whether or not this film proves that a fetus can feel pain, the image of a fetus being aborted cannot be easy to watch, even for the most adamant of pro-choice people. (When I was researching for this blog, I came across images of aborted fetuses, and they're haunting and disgusting, and a powerful tool to manipulate the emotions of people who are uncertain of where they stand on the issue).

One last thing the article talks about that really struck me is their "Statutory Analysis" near the end. "The statutory strategies portraying the fetus as an infant take numerous forms, though they fall into two categories. The first includes legislative measures that seek to establish legal personhood. These include fetal homicide laws, as well as more subtle variants of personhood, such as those requiring abortion clinics to show ultrasound images of the fetus to the woman prior to performing an abortion and providing benefits to the unborn [...]. The second category of laws addresses the purported brutality and cruelty of abortion, with particular emphasis on late-term procedures, when the fetus is most likely to resemble an infant. These laws regulate specific abortion procedures, relying on the imagery of dismemberment to convey the message that a baby is being destroyed by the procedure. They also require that the health-care provider inform the woman that the fetus may experience pain during the procedure (a heavily disputed point) and to offer the option of fetal anesthesia" (112). It is also worthwhile to note that on the subject of fetal pain, "abortion-rights advocates counter that the fetus does not feel pain, and that the sole purpose of the legislation [that involves requiring physicians to tell women that the fetus may feel pain and to offer fetal anesthesia] is to increase the cost of the abortion procedure" (105).

The most interesting thing about all of this, in my opinion, is that this pro-life strategy seems to be arguing that they're actually not limiting the rights of women at all, since they're so adamant that women have a connection with the fetus inside of them, and that it's harmful to women to get an abortion. Is that a fair assumption to make? Can a group of people really tell an individual woman what is best for her, when they know nothing about her?

Source:

Promoting Fetal Personhood: The Rhetorical and Legislative Strategies of the Pro-Life Movement after Planned Parenthood v. Casey. By: Halva-Neubauer, Glen A.; Zeigler, Sara L.. Feminist Formations, Summer2010, Vol. 22 Issue 2, p101-123, 23p

--Alexandra

Fetal Rights Part 1: Why Pro-Choice Should Get Involved

In the debate about abortion, a lot of the argument centers around whether or not a fetus qualifies as a person. The pro-choice side of things is that a fetus does not qualify as a full person due to the lack of viability outside of the womb, particularly early on in pregnancy. The pro-choice standpoint is that a fetus does qualify as a person from the moment of conception. These are two viewpoints that will likely never be reconciled; however, there is a legal battle ongoing about the rights of a fetus: the pro-life side says that a fetus needs to be protected under the fourteenth amendment as a person. The pro-choice side asserts that giving these rights to the fetus is at the detriment of the mother, who gets forgotten in the crossfire, and that the fetus will be given priority over the mother, who is legally a person and protected under the constitution without dispute.

The most effective way to get the fetus defined (or not defined) as a person? Fetal homicide laws.

In the Hickcox-Howard article, "Fetal homicide laws criminalize the killing of a fetus without the consent of the pregnant woman" (317). The article examines why it's important that pro-choice activists get involved in the drafting of these laws: the author says they'll happen with or without the input of the pro-choice movement, but if the pro-choice movement doesn't speak up, "poorly drafted laws can threaten access to abortion by failing to adequately protect abortion providers from the threat of fetal homicide charges" (319). Hickcox-Howard says that a good fetal homicide law "places the choice of whether to carry a pregnancy to term or to terminate it where it belongs--with the pregnant woman--and prevents third parties from violently usurping a woman's right to make this choice" (319).

The problem, she goes on to say, is that "the pro-choice movement currently believes that the only acceptable response to a proposed fetal homicide law is to attempt to block its passage entirely and substitute a bill that enhances punishments for assaulting a pregnant woman, but does not create a separate criminal offense for harming or killing the fetus" (319). Hickcox-Howard asserts that instead of becoming popular, these viewpoints have essentially removed the pro-choice viewpoint from the law-drafting process, which means that the fetal homicide laws that do get enacted end up threatening abortion rights (320).

The first time a fetal homicide law came into the federal government was in 2004, when it passed the Unborn Victims of Violence Act (Hickcox-Howard 323). "The push for fetal homicide laws [...] has centered on two competing goals: to protect pregnant victims of spousal abuse and to create fetal rights that would threaten the right to choose" (Hickcox-Howard 323). It is this second goal that makes these laws attractive to pro-lifers and unattractive to the pro-choice movement. But this is exactly why Hickcox-Howard believes that the pro-choice movement should be more involved. From the pro-life standpoint, the UVVA act was a huge plus: "the theory was that the law would shift the public's understanding of personhood, thereby undermining support for the right to choose" (327).

The pro-choice movement has taken a very hard view on fetal homicide laws in the past: that they shouldn't exist. But Hickcox-Howard's logic is sound: fetal homicide laws will exist, because there is too much pressure for them to be enacted to defeat them. However, if pro-choice activists get involved in the drafting of the laws the way the pro-lifers have, perhaps these laws could be limited to specific instances that are unrelated to abortion or abortion providers. The one thing that Hickcox-Howard fails to mention is whether or not pro-choice activists would be given access to the drafting of these laws. I can imagine, in a political setting, the lawmakers who are creating these laws only listening to pro-life PACs, and ignoring the pro-choice side entirely.

Source:

THE CASE FOR PRO-CHOICE PARTICIPATION IN DRAFTING FETAL HOMICIDE LAWS. By: Hickcox-Howard, Mary Beth. Texas Journal of Women & the Law, Spring2008, Vol. 17 Issue 2, p317-341, 25p

--Alexandra

Gunpoint Abortion Case

The article: http://www.washingtonpost.com/wp-dyn/content/article/2010/10/22/AR2010102201693.html

Since Mallory wrote about the bill that would make it so that you needed consent to the baby's father to get an abortion, I thought this was an interesting bit of news to talk about. I think this article makes it clear that the father's interests and the mother's interests absolutely do not always coincide--the fact that this young man had to resort to violence because he did not want to be a father so badly attests to that.

I think it's terrible that he pointed a gun at his girlfriend's head and tried to force her, on pain of death, to do something she did not want to do. I think he should be charged for attempted murder of his girlfriend. But the idea of fetal homicide laws, (about which the article says, "38 states have fetal homicide laws increasing penalties for crimes against pregnant women,") make me nervous, because whether or not a fetus is alive is a hot ticket issue in the abortion debate. I agree, if someone harms a pregnant woman and her fetus is damaged or ends up dying, that person needs to be prosecuted and face dire consequences. But it's using the word "murder" that worries me, as it does when I see slogans "abortion is murder" from the pro-life side of things.

Because if abortion is murder, then it's hard to argue as a right that all women should have. Of course there is a difference between harming a wanted pregnancy, and a woman choosing to terminate a pregnancy. However, if the law doesn't draw these lines now, I fear that these cases in which harming the fetus is called "murder" or "homicide" will set precedents for fetuses as living beings that cannot be harmed--which, in turn, will make it impossible to get an abortion. It's a really hard thing to think about, but ultimately, I believe that whether a woman thinks she's murdering her fetus or simply terminating it by getting an abortion should be up to her, and her alone.

Do you think that this precedent set by this Ohio case could bleed over into calling all abortion "murder" or do you see it as an isolated incident that won't affect the overall abortion debate? What about the clear discrepancy between what the father and mother want: does that speak well for the bill that would require the father's consent for an abortion? Can you see a difference between an outsider harming a wanted fetus, and a woman choosing to terminate her pregnancy, or are both of those things still "murder"?

--Alexandra