Can There Be Justice for Pregnant Women if the Unborn Have “Human Rights?”

Lynn Paltrow

Cases from across the country prove that if the unborn are recognized as legal persons with separate human rights, the government will have the power to deprive pregnant women of their rights to informed consent, due process, liberty, and even life.

Editor’s Note: This article is part of a pre-election series
featuring leading voices in sexual and reproductive health advocacy,
showing how shared American values underpin their support for sexual
and reproductive health, rights, and justice. Read them all here.

This summer, the question of abortion and the rights of the
unborn once again took center stage as a presidential campaign issue. In
August, at the Saddleback Civil Forum, Pastor Rick Warren asked both
presidential candidates: "At what point is a baby entitled to human
rights?"  Senator John McCain’s answer,
"at the moment of conception," immediately established his anti-abortion bona

But the right answer, as a matter of international human rights principles and simple justice,
is: human rights attach at birth, not at conception.

This is the only position that ensures that upon becoming
pregnant, women do not lose their
human rights.

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Cases from across the country prove that if the unborn are
recognized as legal persons with separate human rights, the government will
have the power to deprive pregnant women of their rights to informed consent,
due process, liberty, and even life – without any guarantee that the interests
of the unborn will in fact be protected.

After Ayesha Madyun’s water broke, she went to
the hospital where she hoped and planned to have a vaginal birth. When she
didn’t give birth in a time-frame comfortable to her doctors, they argued that
she should have Cesarean surgery. The doctors asserted that the fetus faced a
50-75 percent chance of infection if not delivered surgically. (Risks of
infection are believed by some health care providers to increase with each hour
after a woman’s water has broken and she hasn’t delivered.) The court
said, "[a]ll that stood between the Madyun fetus and its independent
existence, separate from its mother, was put simply, a doctor’s scalpel."
The court granted the order; the scalpel sliced through Ms. Madyun.  After the delivery, there was no evidence of
infection and no evidence that any human rights were advanced – for the born or

Relying on fetal rights arguments, authorities in Utah arrested a woman
for murder because she delayed a C-section causing, the state alleged, the
stillbirth of one of her twins.

Other women have been charged with
homicide based on the claim that the stillbirths they suffered were caused by
an illegal drug they took.  Recently, a unanimous South Carolina Supreme Court had to overturn
Regina McKnight’s conviction for homicide by child abuse. After Ms. McKnight
had served more than eight years in prison, the court finally recognized that
her conviction had been based on "outdated" research and that her trial counsel
had failed to call experts who would have testified about "recent studies
showing that cocaine is no more harmful to a fetus than nicotine use, poor
nutrition, lack of prenatal care, or other conditions commonly associated with
the urban poor." 

At least fifteen
to twenty percent of all pregnancies end in miscarriage or stillbirth. Certainly, human rights are not advanced by
creating a legal basis for treating miscarriages and stillbirths as murder.

Laura Pemberton wanted to have a vaginal birth after a
previous delivery by Cesarean surgery. Because no hospital would admit her
unless she agreed to deliver again by surgery, she stayed home to give birth.
While there, in active labor and near delivery, an armed Sheriff knocked on her
door. He had orders to take her into custody. He strapped her legs together and
brought her to a hospital to determine whether she could be forced to have the Cesarean surgery. A lawyer was appointed for the fetus, but not for Ms.
Pemberton. Ms. Pemberton vehemently opposes abortion, but she nevertheless
believed in her right to evaluate medical risks and benefits to herself and her
unborn child. She was forced to have the unnecessary surgery. When she later
sued for violations of her civil rights, was told she had none.

My organization, National Advocates for Pregnant Women, is documenting
hundreds of cases in which fetal rights have been used to justify denying human
rights to women who have no intention of ending their pregnancies. If the unborn
are granted human rights, courts will have jurisdiction over pregnant women
whenever someone disagrees with their decisions to undergo chemotherapy, to
continue taking anti-depressants, to continue working, to drink any amount of
alcohol, to chose vaginal birth over Cesarean surgery and even if what the
pregnant woman wants is, simply, to live.

At 27 years old and 25 weeks pregnant Angela Carder became
critically ill. The hospital called an emergency hearing to determine the
rights of the fetus. Despite testimony that a Cesarean section could kill Ms.
Carder, the court ordered the surgery because the fetus had independent legal
rights. As a result, Ms. Carder not only lost her right to informed consent and
bodily integrity; she lost her life. The surgery resulted in the death of both Ms.
Carder and her fetus.

Ms. Carder’s case makes clear that the issue is not choice
versus life, but life vs. life – that is whether the government should have the
power to privilege fetal rights over maternal life.

candidates of all persuasions should rest assured that to oppose the
recognition of human rights before birth is not to deny the value of potential
life as matter of religious belief, emotional conviction or personal
experience. Rather, it is to recognize the value of the women who give that

It is to recognize that there are not two different kinds of women: those who have
abortions and those who have babies. Sixty-one percent of women who have
abortions are already mothers. Over the course of their lives, 85 percent of
all women bring life into this world and provide the majority of care for that

These women – all of them, whether they oppose or support
legal abortion – struggle with U.S. policies that run counter to women’s health
and family well being. They are pregnant women who lack protection from
workplace discrimination. They are parents and caretakers who lack economic and
social supports available to women in virtually every other western
industrialized country, like a national health care system and paid maternity

And, whether they define themselves as "pro-life" or
"pro-choice," most women believe, and justice demands, that they do not lose their human rights at
the moment they conceive.

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