Damn that Equal Protection?
Billvon said:
And prosecuting parents for harming their children is already happening. Neither one is close to prosecuting a woman for having a 'normal' miscarriage or for prosecuting a parent when her child has a 'normal' tumor.
The way you seem to be looking at it renders LACP moot. The best way to explain that is to look into the second part of your post:
Yes, women who do so much cocaine that their 36 week old fetus (a date when not only is the fetus viable, it is no longer even a high risk premature birth) is stillborn might see charges. Women who irradiate their children for fun, and give them cancer, might see charges. Neither is similar to the examples you give, nor the examples that I give.
In 2011, a woman fell down the stairs after arguing over the phone with her estranged husband. Though paramedics responding to the incident found her healthy, the woman decided to go to the emergency room to make sure the baby was okay. On the basis of the woman's discussion with health professionals, because she admitted that she had at one point considered abortion, she was arrested for attempted feticide.
The charges were later dropped, not because they were ridiculous, but because the woman was, documentably, not in her third trimester when the fall occurred.
In 2010, a pregnant woman in Flordia was ordered by the court to bed rest. Why? Because, at twenty-five weeks in, she was showing potential for miscarriage; the woman, being a working other of two, did not consider bed rest a realistic option. Rather than referring her for a second opinion, the doctor found a court that ordered Burton to report to Tallahassee Memorial Hospital and subject herself to whatever procedures and treatments the doctors decided were appropriate. Three days into this stressful captivity, she miscarried.
Sure, there is no scientific evidence to support the benefits of bed rest; the American College of Obstetricians and Gynecologists does not recommend routine bed rest. For these and other reasons, the court order was eventually overturned, months after the woman miscarried while forcibly confined to a hospital.
Now, these absurd tales exist
without LACP as the statutory outlook.
We might, then, consider Virginia, where the legislature failed to pass a bill that would have required all women to report all miscarriages or suspected miscarriages to authorities. What eventually passed was a fetal protection law that specifically excluded the mother from criminal consideration.
But under LACP, that exception cannot stand.
What you overlook is the Equal Protection Clause of Amendment XIV and the Due Process Clause of Amendment V. The Fourteenth obliges the states to equal protection of all persons under its jurisdiction, and the Fifth guarantees due process to all persons within federal jurisdiction.
It's not that I am without sympathy for your appeal to reasonable sentiment; rather, you seem to be rendering LACP moot by ignoring the implications of a blastocyst becoming a
person. Once that organism growing inside a woman becomes a
person, it is covered by the laws. The Fourteenth is quite specific about this:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
(Boldface and bold-italic accents added)
One cannot rely on that first sentence, "born or naturalized", for a way around the conundrum; due process and equal protection are assigned to people, not citizens. The Due Process clause of the Fifth, as well, applies to people in general, and is not specifically limited to citizens.
Thus, to start with more specific examples:
• Car wreck: The driver at fault in a car wreck is liable for the injuries he or she causes. If that wreck causes the death of another person, the driver at fault is liable for that death. To suggest the prosecution of a husband for driving too fast on a wet road and potentially causing his wife to miscarry is somehow extreme simply ignores the way the law already works.
• Pregnant woman falls: Given the record, it does not seem somehow extreme or unreasonable to suggest that a woman would be prosecuted, under LACP, for tripping over a chair-mat at work.
• Rhesus disease: An easily preventable outcome. Exposing a child to mortally dangerous conditions is already illegal. Since Rho(D) immune globulin is available, fetal death by Rhesus disease very strongly implies negligence on the part of the mother, though the father is also at fault for his role in conception.
More obscure considerations, what you have described as "normal" miscarriages, cannot simply be written off to "medical statistics".
Medical Examiner: What caused this miscarriage?
Assistant: Doctor, the medical statistics suggest a high probability for a "normal" miscarriage without identified cause.
Medical Examiner: Excellent. We need not attempt to identify a cause. After all, medical statistics say it is a normal miscarriage.
So much for the Fourteenth Amendment, eh?
Why not try that with the pierced chest consideration?
Medical Examiner: What caused this man's death?
Assistant: Doctor, the medical statistics suggest a pierced heart consistently results in death.
Medical Examiner: Great. Case closed. Death by pierced heart. No need to look any further; I need to hit the links.
"Medical statistics" are insufficient. One of the reasons so many "normal" miscarriages are labeled as "normal" is that there is not enough data to establish cause. To say that they just happen is fine enough in the context of not knowing the answer, but LACP includes an Equal Protection obligation to try to find those answers.
It's not that I don't get your suggestion that these are extreme and absurd outcomes, but they are also symptomatic of making the fetus a "person" in the land of Equal Protection. And that is the point. The proposition underpinning this thread is an attempt to reconcile the Equal Protection and other legal conflicts that will inevitably arise under LACP.
And if you look—and close scrutiny is not required to note these themes—the more ardently "pro-life" one the argument, the less it seems to have thought through the implications. Look at Wynn and Lightgigantic, for instance. LG is still trying to argue the validity of LACP, which was conceded at the outset for argumentative purposes; it's unclear what Wynn is trying to do.
Yet our neighbor
Bowser, who tends toward the pro-life side of the argument, quite reasonably noted, "Certainly this would be a 180 degree turn in how we presently view life in the womb. If we do define it as being a person at conception, then we must protect its life as we would any other."
I would, then, recall a couple of questions I raised in the early portion of the thread—
• "Life at conception" has a certain political value, but what is its real value in terms of morality and, functionally speaking, justice?
• How do you provide equal protection for the "person" who exists inside a woman?
—and ask you for some affirmative assertion in response.
Because I
do understand that people find such suggested outcomes extreme. Indeed, I agree that they are extreme and absurd. But I also find them consequential because of Equal Protection and Due Process. Simply saying, "Enforcement is too ridiculous!" and throwing up our hands is
not an option according to the Supreme Law of the Land.
Fetal protection laws are already more widely used against mothers who miscarry than assailants who cause miscarriages.
We've already seen attempts to compel women to register suspected miscarriages with law enforcement authorities.
I would very much like LACP advocates to consider the implications of getting what they want. And I would also like to imagine that it isn't
just about denigrating women.
And if the potential for investigating one in three women is an absurd straw man, then LACP really
is about putting women back in their places, because then it
is just about stopping them from having abortions.
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Notes:
Constitution of the United States of America. 1992. Law.Cornell.edu. December 4, 2012. http://www.law.cornell.edu/constitution/