Abortion, fetus rights on legal collision course Protections for unborn head for test in Fla.

November 04, 1996|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

Desperate to end her pregnancy after six months, Kawana Ashley put a pillow against her abdomen, picked up a pistol and shot herself. After an emergency delivery, her baby girl lived only 15 days. The 19-year-old Florida mother was charged with murder and manslaughter.

The case, which goes before the Florida Supreme Court tomorrow, represents a collision that had long been looming, a direct clash of a woman's right to abortion and the developing legal rights of her fetus.

The criminal prosecution of the St. Petersburg woman is one of a growing number of court cases taking the fetus closer and closer to having a complete legal identity of its own, with rights in conflict with those of the pregnant woman. For example:

In Greenville, S.C., Cornelia Whitner was convicted of child abuse for using cocaine during pregnancy. Hers appears to be the first case in which a state supreme court has ruled that a fetus late in pregnancy is legally a "person" under nearly all state laws and that a pregnant woman may be prosecuted for child neglect.

In Waukesha, Wis., Angela M. W. became one of the few women in the nation to be confined under court order to protect the health of her fetus. A cocaine user, she was detained for three weeks in a drug treatment center. A state appeals court said her rights were not violated by the "protective custody," since only the fetus was ordered detained.

Elsewhere in Wisconsin, Deborah Zimmerman of Racine has become the first woman to face murder charges based on her own alcohol abuse. Her baby was born with fetal alcohol syndrome. Her case shows that even prenatal behavior that is not in itself illegal could be made criminal.

Clarke Forsythe, president of the Chicago-based Americans United for Life, says the court rulings show a "new sensitivity" to the impact of destructive behavior by pregnant women.

"When there is a child who is to be born and is not going to be aborted, and when there is a direct and severe threat to the health or life of the child, the state can intervene to protect the child," he says.

'Threatens Roe vs. Wade'

But women's rights groups worry that the court decisions may erode the right to abortion.

Even as courts have created new legal safeguards for fetuses, they have said the right to abortion remains constitutionally protected. But advocates for women's rights fear that the Ashley case and others might shake a main foundation of Roe vs. Wade: the Supreme Court's declaration in the 1973 case that a fetus is not a person in a constitutional sense at any stage of pregnancy, and if it were, there could be no right to abortion.

"Breaking the barrier that protected women from liability for harm to their fetus threatens Roe vs. Wade itself," says Priscilla J. Smith, an attorney defending Kawana Ashley. "In the [Ashley] case, there is an insinuation that abortion is murder."

C. Rauch Wise, one of Cornelia Whitner's lawyers in South Carolina, said the effect of the state Supreme Court in her case "is to eliminate third-trimester abortions in this state -- even to save the life of the mother." Whitner's fetus was in the third trimester when affected by her cocaine use, and the state court said it had by then become a "person," with its own rights.

Fetuses have been gaining legal status as a result of a trend stretching back over a half-century. For many years, those protections linked the fetus' legal interests to its role within the family: as an heir, an owner of a share of family property, a family member whose death or injury meant payment of damages to the parents.

The 'second patient'

In recent years, however, the fetus has been emerging from the family circle, in a legal sense.

With doctors' increasing ability to treat fetal illnesses or defects, theoriticians and practitioners have been promoting the idea that the fetus should have independent legal rights as the "second patient." The effect: Pregnant women would be held legally accountable for behavior that threatened their fetuses.

A doctor-lawyer-professor at the University of Texas, Margery W. Shaw, proposed that very result in a 1984 article: "A woman's right to abuse her own body and threaten her own health should not extend to the body of her fetus."

Shaw suggested criminal prosecution and lawsuits on the fetus's behalf for maternal abuse or neglect. To a significant degree, that view seems to be catching on in the state courts.

A legally separate world for the fetus might mean that almost any legal development that enhanced fetal personhood could affect pregnant women's rights -- including the right to abortion first declared by the Supreme Court in the Roe ruling. From its earliest days, the fight over abortion has also been a fight over fetal life and its legal status.

"If there is to be a balance of rights, the fetus is always going to win," says Lynn M. Paltrow, director of special litigation for the Center for Reproductive Law and Policy in New York.

'No logical limit'

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