a bird and a bottle

Law and Order, Coming Soon to a Placenta Near You
February 27, 2007, 10:14 pm
Filed under: criminal justice, feminism/s & gender, law, news, NYC, reproductive justice

From Broadsheet:

In 1999, a pregnant schoolteacher [Esther Portalatin-Leighton] was injured when a toilet at a Brooklyn public school collapsed. The placenta of her then 14-week-old fetus was ruptured, and her daughter was born prematurely, less than four months after the accident. Today, the seven-year-old has learning disabilities and asthmatic symptoms, which her parents attribute to her premature birth. Should the girl have the right to sue the city for her injuries?

Yes, according to an appeals panel that just overturned a 2005 decision by Brooklyn Supreme Court Justice Martin Solomon. The appeals panel said that if the injuries occurred after the child was conceived and if she were born alive, she had the right to sue — thus denying the city’s lawyers’ claim that the child would have had to be able to survive outside of the womb at the time of the injury in order to qualify for damages.

Here we have a girl whose disabilities may or may not have been caused by the premature birth which may or may not have been caused by the toilet collapse. Pregnancy and childbirth are uncertain biological processes rife with moments at which something could go wrong. Causation in cases like this will be beyond difficult to prove. But that’s not really what concerns me here (though it does sound so very law school). The rub of this news item is this nugget, tucked into the end of the NY Daily News’s story:

“Abortion cases are genuinely distinguishable from the [Leighton] case since fetuses which are aborted are not born alive,” Brooklyn Appeals Court Justice Gloria Goldstein wrote.

I’m sure that upon reading that, many people breathed a sigh of relief. “Phew,” you might be thinking, “this is great for a family that must be buried in medical costs. This is not another attack on abortion rights. It’s just like the Unborn Victims of Violence Act.” And while it would appear from the language of the decision (and of the UVVA which explicitly exempts a pregnant woman’s own actions) to be the case, it’s not. Just do a google search for UVVA. The first hit: The National Right to Life Committee, one of the country’s loudest anti abortion rights organizations.

What are we to conclude from this? Cases like the one this New York Court has just authorized may not be about eroding abortion rights on an individual level, but on sum, they are. They are about awarding personhood and rights to a fetus. And though those rights may be contingent upon the fetus’s live birth, the harm has occurred to that “person” before birth.

The NY Court tried to insulate abortion rights from the fallout of its decision, but what about women who carry a child to term despite a drug problem? These women often give birth to perfectly healthy — and wanted — children. In many states, they have nevertheless been prosecuted for child abuse and even drug trafficking. Women who are pregnant and unable to kick addictions are often thrown in jail to protect their fetuses, which, as I have posted about before, often leads to childbirth in unsanitary conditions or to finding drugs even more widely available in prison than they were on the street. Still, today’s decision could open the door to more prosecutions, by signaling that a fetus, though not endowed with the full rights of a born person, has some rights from the beginning of pregnancy.

I am not unsympathetic to the extra burdens the Leightons have had to bear. But their victory sets a dangerous precedent. And going back to that law school mumbo jumbo about causation, since it’s so difficult to prove given the millions of potential variables that could affect a pregnancy, every move a woman makes (or doesn’t make) could open her up to legal liability. Women’s behavior during pregnancy is already under a tremendous amount of scrutiny. Decisions like the one today tell women they must guarantee a perfect birth outcome — or else.

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