Commentary Human Rights

Lawyers for Fetuses? Yes, It’s Absurd, But It’s Worse Than You Realize

Sara Ainsworth

As ludicrous as Alabama’s law is, having lawyers for fetuses is not new—and they are not just appointed to try to stop girls from having abortions. In fact, they have been used for decades in state and judicial efforts to strip pregnant women of their civil and human rights.

Like most of the rest of the nation, National Advocates for Pregnant Women staff were “horrortained” as we watched the Daily Show’s brilliant Jessica Williams and MSNBC’s phenomenal Melissa Harris-Perry interview an Alabama lawyer who “represents” fetuses. As the two shows highlighted, Alabama has a new law that assigns a lawyer as a guardian ad litem (GAL) to represent the interest of an embryo or fetus whenever a minor needs judicial permission to get an abortion. The American Civil Liberties Union has filed a challenge to that law, which should be found unconstitutional based on legal precedent. But the Daily Show and the Melissa Harris-Perry Show largely missed something important. As ludicrous as Alabama’s law is, having lawyers or GALs for fetuses is not new—and they are not just appointed to try to stop girls from having abortions. In fact, they have been used for decades in state and judicial efforts to strip pregnant women of their civil and human rights.

Even as these segments were airing, NAPW was working on the case of Tamara Loertscher, a woman jailed under a Wisconsin law that assigns GALs from “the time of fertilization” when anyone alleges that a pregnant woman has used any amount of alcohol or a controlled substance. Under this law, a GAL is appointed for a fertilized egg, embryo, or fetus as if it were a person, entirely separate from the pregnant woman on whose body it depends. Not only can this GAL oppose a woman’s decision to have an abortion, he can also ask to have her detained against her will in a hospital, drug treatment facility, or jail; ask a court to place her “in the custody” of a family member (whether or not that family member is abusive); and have unfettered access to her private medical information, and have the authority to challenge and effectively override any medical decision she makes while pregnant. Meanwhile, Wisconsin law provides no attorney for the pregnant woman at the time when her liberty and privacy are at stake—she has no right to a lawyer until very late in these proceedings, long after she’s been detained.

Loertscher had been dealing with a severe thyroid condition and other health problems. Unable to afford the medication she needed, she had been self-medicating with methamphetamine for severe lethargy and marijuana for anxiety. When she realized she might be pregnant, she stopped self-medicating and went to the hospital to confirm the pregnancy and get help for her serious medical problems. The hospital reported her to state authorities, and a court appointed a GAL for her 14-week fetus—but no lawyer for her. The court ordered her to be detained in the hospital and in an inpatient drug treatment facility (although she did not have a substance use disorder); when she refused to go to the treatment facility, the GAL for the fetus asked the court to hold her in contempt. The court sent her to jail, where, Loertscher says, she was put in solitary confinement and threatened with a taser for nothing more than refusing to take another pregnancy test. She was also denied prenatal care and says that, when she experienced painful cramping, the jail doctor told her nothing could be done if she “decided” to miscarry while in jail. So much for the GAL’s so-called protection of the interests of the “unborn.”

And Loertscher is not alone. In another Wisconsin case, a GAL for a fetus endorsed having a pregnant woman locked in a mental health unit of a hospital where she reportedly received no prenatal care and was put on medications that were dangerous to the fetus. Then there is the case of Alicia Beltran, also in Wisconsin, who was between 11 and 14 weeks pregnant when she was arrested, handcuffed, and shackled, and brought to a hearing at which her fetus was appointed a lawyer, but she had no right to one. Then, with the approval of the GAL appointed for her fetus, and despite the fact that she did not have a drug problem, a court ordered her into an inpatient drug treatment center located many miles away from her prenatal care provider, where she was held for more than 70 days.

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Wisconsin’s law is unusually comprehensive in the scope it gives GALs to deny pregnant women’s rights, but it is not unique in appointing a GAL for fetuses. Since at least the 1980s, courts around the country have been appointing lawyers to represent fetuses—if not under statutes like Alabama’s and Wisconsin’s, then through judicial action. In 1983 in Massachusetts, Susan Taft’s husband went to court to force her to have obstetrical surgery that had been suggested by her doctor. The court appointed a GAL for the fetus, so Taft had to defend herself against both her husband and the GAL. Despite the GAL’s insistence that she have the surgery, Taft won her case and delivered a healthy baby without the surgery. In 1994, an Illinois lawyer appointed for a fetus asked a court to force a pregnant woman to have cesarean surgery. Fortunately, the lawyer did not win—and the woman delivered a healthy baby without surgery and in spite of the doctor’s dire predictions that it would surely die without it. And a lawyer appointed for a 25-to-26-week fetus in the 1987 Washington, D.C., Angela Carder case argued that a woman who was critically ill and pregnant should be forced to have a cesarean surgery even though it was understood it could kill her. The GAL won: Carder was subjected to a forced cesarean surgery, and neither she nor the fetus survived.

Essentially, this is what happens when fertilized eggs, embryos, and fetuses are treated as separate “persons”: pregnant women cease to be people with civil and human rights. Yes, abortion rights are affected, but so is every other civil right associated with being a person: the right to be free from jail, to have a lawyer appointed for you if the state is trying to jail you, to be free from state surveillance, to make decisions about your own medical care—including childbirth—and to raise your own children. Alabama has created a “crazy-ass job” for lawyers, as Williams put it, but it’s no joke. When fetuses are people, pregnant women are not, when they need abortions and when they are carrying to term.

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