Assessment of the Conflicting Approaches to Reproductive Rights - Rights-Based Analysis - Essay Example

Critical Assessment of the Conflicting Approaches to Reproductive Rights: A Rights-Based Analysis Law on Abortion C-Section Cases (Re S [1992 Ag Reference (No 3 of 1994) Winnipeg Child and Family Service Critically Assessment of the Conflicting Approaches to Reproductive Rights: A Rights-Based Analysis Reproductive rights are basically of three types: (1) the freedom to decide how many children to have, and when to have them; (2) the right to have information and means to regulate one’s fertility: and (3) the right to have and exercise control over one’s own body. Reproductive rights, as a concept, emerged through women engaging with health issues, especially women’s reproductive health issues. The notion of women’s reproductive rights sought to challenge the reduction of women through gendered and patriarchal institutions of government, religion, and health professionals, who justified intervention in women’s reproductive self-determination in the name of public order, morality, and public health. The hypothesis of paternal rights and fetal rights emerged in a bid to control women’s exercise of their reproductive rights. Of these, fetal rights have posed critical jurisprudential challenges to the perception of women’s rights to control their fertility. The debate has also raised the ethical issue of whether a fetus has any rights, and if so, when is a fetus a viable; does a fetus have “personhood”? Fetal “personhood” has become a tool to challenge women’s rights of self-determination with respect to their bodily integrity. This paper attempts to examine the extent to which a woman has such a right of self-determination with respect to fetal/child rights. Women’s Rights to Fertility and Bodily Integrity Women’s Rights to Abortion Two United States Supreme Court decisions, Griswold v. Connecticut and Roe v. Wade, paved the way for womens reproductive rights and freedom by establishing that the right to privacy, though it did not originate in reproductive rights cases, included a womans right to make her own private and personal decisions about her reproductive choices. In particular, it was held in the Roe vs. Wade (Roe v. Wade 410 US 113 (1973), that the “right to privacy”, enshrined in the Fourteenth Amendment’s “concept of personal liberty” “… is broad enough to encompass a woman’s decision” whether or not to terminate her pregnancy. In 1992, in Planned Parenthood v. Casey, upheld women’s right to control their fertility. However, the court replaced Roe’s strict scrutiny standard of review with the less protective “undue burden” standard. Applying this undue burden standard, the court upheld previously unconstitutional regulations on abortion such as mandatory waiting periods and permitted restrictions that necessarily delayed women from obtaining abortions, while admitting that such restrictions must provide an exception that would allow a woman to obtain an immediate abortion if delay posed a significant threat to her health. Blackmun’s separate opinion in the case held that "A States restrictions on a womans right to terminate her pregnancy also implicate constitutional guarantees of gender equality"; Stevens, J., in a separate opinion, agreed, stating that "Roe is an integral part of a correct understanding of both the concept of liberty, and the basic equality of men and women." (Linda Greenhouse, 1994). Since 1995, there have been several moves to ban abortion. In Nebraska, for instance, the law prohibited procedures for abortion under Partial Birth Abortion. However, a Supreme Court decision in Stenberg, Attorney General of Nebraska, et al. v. Carhart, 530 U.S. 914 (2000) held that the law could be construed to apply to other forms of abortion, rather than merely D&X: they could apply to D&E processes that are used to terminate early pregnancy, in which case it could violate the “right to privacy” as described in Roe and Casey. The court added that an exception for mother’s health, as required by the Doe decision, was also not incorporated in the ban. In 2003, the US federal government passed Partial Birth Abortion Act, which is basically similar to the Nebraska Partial Birth Abortion ban, but contains an exception to save the mother’s life. This law has also been challenged, once again by Carhart, and also by the Planned Parenthood Federation of America, the American Civil Liberties Union, and the Center for Reproductive Rights. The problematic posed by “pro-life”, which holds that an embryo (at least a fetus that is in the later stages of development) is a human being, and thus entitled to respect for its right to life, pits women’s reproductive rights against fetal/child rights. In the pro-lifer’s paradigm, abortion is equal to homicide. If it cannot be justified because of saving the woman’s life, it becomes equal to murder. The problematic has raised issues of when does a fetus become viable, when is it said to have life and thus rights. It also raises questions on the role played by physicians in providing abortion services. Women’s Right to Bodily Integrity Do women have a right to say “No” if pressured to accept invasive technologies and other processes that are justified as protecting the rights of the fetus/child? The issues of a woman’s autonomy as well as of her competency to exercise her right to privacy were paramount in decision granted in Re S (Adult: refusal of medical treatment)[1992] in UK, where the court held that a cesarean section could be lawfully performed on a competent woman without her consent. The woman in question had refused the procedure on religious grounds. In this case, a declaration was given that "a Caesarean section and any necessary consequential treatment which the hospital and its staff proposed to perform on the patient could be lawfully performed despite the patients refusal to give her consent being vital in the interests of the patient and her unborn child." The decision was based on an earlier decision in the case Re T (Adult: Refusal of Treatment) [1992], which held “the only possible qualification is the case in which the choice may lead to the death of a viable fetus.” This approach was powerfully rejected in Re MB (an adult: Medical treatment)([1997] 2 F.C.R 541) and St Georges Healthcare NHS Trust v S, R v Collins ex parte S [1998] 3 All ER 673) (Royal College of Obstetricians and Gynaecologists, 2006). The former categorically disallowed intervention against a competent woman’s wishes, even if it meant harm to the fetus, adding that it was inappropriate to ask the court to intervene and overrule such refusal. The latter declared that in case a woman was incompetent, she needed independent psychiatric evaluation early in the course of treatment, and if she were unconscious, legal advice from the court be sought and an advocate for her best interests be appointed to represent her at such hearing. Questions about women’s competency and autonomy with regard to fetal rights were also central to Winnipeg Child and Family Services (North west Area) v G (1997) 3 BHRC 611, in which a judge ordered detention in a health care facility (because of concern about her mental competence) and mandatory drug treatment for a young, low-income Aboriginal woman who was addicted to sniffing solvents and who sniffed glue during her pregnancy. The decision was set aside on appeal, and the Supreme Court subsequently upheld the appeal court decision. Giving the judgment of the majority, McCloughlin J said: “The common law does not clothe the courts with power to order the detention of a pregnant woman for the purpose of preventing her from harming her unborn child. Nor, given the magnitude of the changes and their potential ramifications, would it be appropriate for the courts to extend their power to make such an order.”(Thorpe, 2000). Women’s Rights vs. Fetal rights Laws and rulings on abortion, caesarian section, and related to women’s exercise of their reproductive rights in general highlight the conflict between women’s rights and fetal rights. Fetal rights are the rights of any unborn human fetus, which is generally a developing human from roughly eight weeks after conception to birth. Historically, under both English common law and US law, the fetus was not considered an entity until it was born alive. Roe engendered the notion of fetal rights, as separate from those of the pregnant woman. The Roe decision gave women the constitutionally guaranteed unqualified right to abortion in the first trimester of her pregnancy. In the second trimester, she had the right to terminate a pregnancy, but the state had the power to limit this right on grounds of risk to the mother. As regards terminating the pregnancy in the third trimester, the court held that while the fetus is not a person under the terms of the Fourteenth Amendment, the state had an interest in protecting the life of the fetus if it was viable. As a result, states were allowed to prohibit abortion in the third trimester of pregnancy with the exception of when the course of action was essential to protect the life of the mother. Post Roe, technological developments have further distanced fetal rights from women’s rights and given rise to the notion of fetal autonomy through personhood, which allowed states to restrict women’s rights to abortion guaranteed through Roe. Conflicts Between Women’s Rights and Fetal Rights The “born alive” assumption underlies the decision in the Winnipeg Child and Family Services (North west Area) v G (1997) 3 BHRC 611 case, which highlighted the issues of women’s rights to autonomy and self-determination vs. fetal rights. Even earlier, in 1994, the Doe v. Doe, 260 Ill. App.3d 392, 198 Ill. Dec. 267, 632 N E 24 326 focused on these issues. Doe (name changed to protect her anonymity) was thirty-five weeks pregnant. Her physician advised cesarean section, as the baby was not receiving enough oxygen. Doe refused on religious grounds. The doctor and his hospital contact the Cook Country state’s attorney, who petitioned the court to intervene with an order for cesarean procedure. Doe petitioned in opposition to this. The state argued that Roe’s protections of a viable fetus authorized a forced cesarean. The Illinois Appellate Court rejected this argument and upheld Doe’s right to refuse the procedure, finding no statue or Illinois case to support the state’s request. The court also found the actions of the physicians to be directly opposed to the clear guidelines laid down by the American Medical Association: the physicians’ duty does not extend to attempting to influence her decision or attempting to force a recommended procedure upon her; their actions are limited to providing her with the necessary and appropriate information to enable her to make an informed decision. There is considerable judicial authority to the effect that fetal interests and rights are subordinate to the rights and interests of the woman. Sir George Baker in Paton v. BPAS (1979) QB 276 said “The fetus cannot, in English law, in my view have a right of its own at least until it is born and has a separate existence from its mother. That pervades the complete civil law of this country.” In fact, in its July 2006 Guidelines, the Royal College of Obstetricians and Gynaecologists had this to say: “Re S [1992] is also out of step in elevating the status of the fetus in law to such an extent that it’s supposed rights become more important than its mothers. To do so is not in sync with both the Congenital Disabilities (Civil Liabilities) Act 1976 and the previous case law. Indeed, as Grubb (1993) points out, the Law Commission in its report (1974) on Injuries to Unborn Children explicitly stated that a woman should not be liable for "rash conduct during pregnancy" which causes harm to the unborn child. Rather, the intention of Parliament was to entrust it to the individual mother to choose how to act in the "best interests" of her unborn child. “Moreover, there is no other example in law for forcing one person to use his or her body to save the life of another. In the American case of McFall v Shimp, 10 Pa. D&C.3d 90-92(1978)… it was determined that a person could not be forced to give a potentially life saving bone marrow donation for his cousin even though his moral stance was heavily criticized. Thus, by extension, although a pregnant woman may well have an extremely strong ethical responsibility towards her unborn child, this does not mean that it is correct to use the law to enforce these responsibilities.” (Royal College of Obstetricians and Gynaecologists, 2006). The assumption that the fetus has no rights till it is born has been challenged many times, both by the pro-lifers, as well as many State laws in the US. For example, in the case of State v. Holcomb, 956 S.W.2d 286, 64 ALR5th 901 (Mo. Ct. App. W.D. 1997), the court held that an unborn child is a "person" for the purposes of the first degree murder statute and the fact that a mother of a pre-born child may have been granted certain legal rights to terminate the pregnancy did not preclude the prosecution of a third party for murder in the case of a killing of a child not consented to by the mother (Wasserstrom, 1998). The notion of “born alive” was even challenged in the Winnipeg case itself, as is clear from the Minority Report: “Present medical technology renders the “born alive” rule outdated and indefensible. We no longer need to cling to an evidentiary presumption to the contrary when technologies like real time ultrasound, fetal heart monitors and fetoscopy can clearly show us that a fetus is alive and has been or will be injured by conduct of another.” (Rutman et al. 2000). The Majority report says a clear “NO” to the issue of the detention and forcible treatment of a pregnant woman to prevent harm to the fetus under the current law of torts. However, it passes on the responsibility of changing the law to meet changing conditions to the legislature. This view was earlier advanced by Lord Justice Balcombe, who said: "If the law is to be extended in this manner, so as to impose control over the mother of an unborn child, where such control may be necessary for the benefit of that child, then under our system of parliamentary democracy, it is for Parliament to decide whether such controls can be imposed and, if so, subject to what limitations or conditions". He added, “Since an unborn child has, ex hypothesi, no existence independent of its mother, the only purpose of extending the jurisdiction to include a fetus is to enable the mother’s actions to be controlled…. Indeed, that is the purpose of the present application.” (Re F (in utero) ([1988]2 All E.R. 193) cited by the Royal College of Obstetricians and Gynaecologists, 2006) Women’s Rights, Fetal Rights, and Jurisprudence The distinction between the views of liberals and conservatives is based on the personhood of the fetus. For pro-lifers, besides moral stands, the personhood comes into existence from the moment of conception, as the fetus has the required number of chromosomes, as well as a unique genetic structure. Ronald Dworkin, a leading utilitarian philosopher, however sees it differently. If conservatives genuinely believed that “a collection of cells” was already a person with interests and rights of its own, then they would disallow abortion even in conditions where the conception is the result of rape, or the pregnancy threatens the woman’s life. (Dworkin, 1994). Dworkin maintains that both liberals and conservatives assign value, which can be of different kinds – instrumental value, personal or subjective value, and intrinsic value. While both sides agree on intrinsic value, they give different weight to the different values – conservatives to intrinsic value, and liberals to instrumental or personal value. Dworkin argues for recognizing the underlying commonality – a belief in the sanctity of life. He answers the question of “Whose life?” by upholding the woman’s right to exercise her autonomy in choosing abortion. (Dworkin, 1994). In this context, he quotes a Los Angeles Times national survey conducted in the late ‘80s, which reported that 61% of Americans think abortion morally wrong; 57% think it murder; and yet 74% nevertheless believe that abortion is a decision that has to be made by every woman for herself. Women’s Reproductive Rights and the Question of Autonomy Both the above cases emphasize the issue of autonomy in exercising reproductive rights, free from coercion and violence. Key to this is the notion of choice, which in the health care context involves the right to informed consent and confidentiality. "Autonomy" also means that the health care provider/state must treat the woman as a fully competent individual in her own right, with regard to decisions concerning her own health. Autonomy is intimately and intrinsically connected with many fundamental human rights, such as liberty, dignity, privacy, security of the person, and bodily integrity, which together form the basis for asserting rights to informed consent and confidentiality in relation to health services and health care. Isaiah Berlin, in his essay, Two Concepts of Liberty, contrasts “liberty” in the ordinary “negative” sense (right to freedom or freedom “from”) with its “positive” sense (freedom “to”). "This ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not causes which affect me, as it were, from outside….I wish, above all, to be conscious of myself as a thinking, willing, active being, bearing responsibility for my choices and able to explain them by references to my own ideas and purposes. I feel free to the degree that I believe this to be true, and enslaved to the degree that I am made to realize that it is not."(Berlin, 1958) Dworkin explains autonomy in the context of competency, by positing the integrity view which rests on the assumption that people’s decisions should be respected because doing so protects “a valuable capacity, the capacity to express ones own character… in the life one leads.” Thus current incompetence cannot, according to Dworkin, be made the grounds for state interference in the exercise of autonomy. In is dialogues with Michael McConnell on Assisted Suicides, expands on the reasons for state interference in autonomy. “There are at least three grounds governments give for restricting peoples liberties. First, some acts, like filming child pornography, injure the legitimate and important interests of other people--in that case, the children who are filmed. Second, some acts, like devastating yourself with drugs or selling yourself into slavery, are unbearably against the actors own well-being, as he himself would judge these if he was thinking clearly. Third, a number of undertakings, like religious dissidence, or a woman aborting her fetus, or homosexual sex, or a terminally ill patient killing himself to avoid further pointless pain, that are dangerous neither to other people nor to the actor himself, nevertheless offend popular ideas about how best to show respect for religious or ethical ideals. ”Our principle insists only that people not be prevented from making momentous personal decisions themselves, according to their own convictions, for the third of these reasons.”(Dworkin and McConnell, 1997). In 1992, the court upheld the notion of constitutionally protected liberty (through the Fourteenth Amendment) from which flows the right of people to make their own decisions about matters "involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy." (Planned Parenthood v. Casey, 1992). How far does this liberty extend? The court reiterated that a state could not constitutionally proscribe abortion, as the Constitution protects the sphere of autonomy – the sphere in which individuals make decisions. In fact, Justice Blackmun went as far as to assert that "compelled continuation of a pregnancy" violates a womans right to privacy and bodily integrity. However, this autonomy is, in actual practice, severely diluted through its link with competency. The St. George case went further in defending a pregnant woman’s autonomy. Ms. S was compulsorily detained under the Mental Health Act 1983 because she was refusing hospitalization for pre-eclampsia, a high-risk condition in pregnancy for both the pregnant woman and the fetus. She was then forced to undergo an unwanted cesarean, which the authorities claimed was authorized by a court order, for which she had not been notified. The Court of Appeal, while stressing the protection of individual autonomy, said: “while pregnancy increases the personal responsibilities of the woman, it does not diminish her entitlement to decide whether or not to undergo medical treatment…. Her right is not reduced or diminished merely because her decision to exercise it may appear morally repugnant…. The autonomy of each individual requires continuing protection even, perhaps particularly, when the motive for interfering with it is readily understandable and indeed to many would appear commendable…. if it had not already done so, medical science will no doubt advance to the stage where a very minor procedure undergone by an adult would save the life or his or her child, or perhaps the child of a complete stranger…. If however the adult were compelled to agree, or rendered helpless to resist, the principle of autonomy would be extinguished.” (Cited in Hewson, 2001). St. George’s wanted to appeal to the House of Lords, but finally abandoned proceedings before the House to any decision to grant leave. (Hewson, 2001). The irony of the case is that unlike the Doe case, Ms. S. was legally allowed, through the Abortion Act, to seek late abortion on the ground that the continuation of her pregnancy posed grave risk of injury to her health and serious risk to her life. She, however, was determined not to undergo any invasive procedure during this period, especially an abortion. Women’s Rights and Competence Courts have rarely explicitly recognized women’s autonomy with respect to their reproductive rights. For instance, in Roe vs. Wade, the Court said: “This allows the attending physician the room he needs to make his best medical judgment." In the same ruling, the Court both secured for women their constitutional right to abortion, and made it conditional, by granting the state a “compelling interest” in regulating abortion. Of course, the justification was “to preserve and protect” maternal health, but it was enough for states to restrict women’s access to abortion. Roe reinforced the view of the woman only as a patient, and competence being exercised only by the physician and the state, with the state’s concerns being overarching. In the case of Doe v. Bolton, which challenged the Georgia statute that required the concurrence of six physicians before a woman could have an abortion, the Court continued to view the woman as patient, and held that only one physician was required to judge the abortion medically necessary. The issue of viability of the fetus was raised again in Casey, which may benefit women because viability should occur around 23 to 24 weeks. However, the impact is once more controversial because it undermines women’s control over their bodies; their discretion is restricted by the doctor’s medical judgment. In addition, under Casey, states are allowed to try and deter women from having abortions by forcing them to sit through state-scripted anti-choice lectures and then wait 24 hours before their abortion, among other restrictions. Conclusion The North’s legal and jurisprudential history is littered with conflicting approaches to the issue of women’s reproductive rights, ever since the landmark Roe litigation. In many ways, it can also be said that the Roe decision itself paved the way for the creation of fetal rights that today poses the most stringent challenge to women’s reproductive rights, and has created a “maternal-fetal conflict”, a conflict over rights, where women will definitely be losers and children will not be guaranteed winners. The notion of fetal rights has already given rise to fetal protection policies that force medical interventions on unwilling pregnant women, deny others their constitutional right to safe abortion, and punish women for their conduct during pregnancy. In many cases, merely the fact of being pregnant allows them to be treated as being less than competent, giving the state and the medical profession to take and often enforce decisions on their behalf. Today there is much talk about third trimester abortions. However, with genuine recognition of women’s reproductive rights and development of appropriate policies and implementation procedures such as genetic counseling, accessibility of reproductive education, birth control, and free access for all women to first trimester or early abortions, there never would have been need for third trimester abortions. Women’s reproductive rights and other rights have been recognized internationally through the Convention on the Elimination of All Forms of Discrimination Against Women, and all nations across the globe, except the United States, have ratified this Convention. The US alone has found numerous reasons not to do so for the past two and a half decades. With technology in the driving seat, women’s reproductive rights, fetal rights, rights to privacy and bodily integrity are being constantly challenged today. Technologies such as tissue culture, cloning, are raising new questions about life itself, personhood, identity, privacy – about jurisprudence itself. References 1. Roe v. Wade 410 US 113 (1973) 2. Linda Greenhouse, How a Ruling on Abortion Took on a Life of Its Own, N.Y. TIMES, Apr. 10, 1994, 3. Royal College of Obstetricians and Gynaecologists (July 2006). Law and Ethics in Relation to Court-Authorized Obstetric Intervention. Retrieved on August 20, 2006 from http://www.rcog.org.uk/index.asp?PageID=1198 4. Thorpe (2000). Consent for Caesarean Section: Part 2 - autonomy, capacity, best interests, reasonable force and procedural guidelines [Electronic version]. Catholic Medical Quarterly, May 2000. 5. Paton v. BPAS (1979) QB 276 6. Wasserstrom (1998). Homicide based on killing of unborn child. American Law Reports, ALR5th, Volume 64 (1998), Annotation. Retrieved August 20,2006 from http://www.vanderbilt.edu/SFL/homicide_killing_ unborn_child.htm 7. Deborah Rutman, Marilyn Callahan, Audrey Lundquist, Suzanne Jackson and Barbara Field, (May 2000). Substance Use and Pregnancy: Conceiving Women in the Policy-Making Process [Electronic version], Status of Women Canada. 8. Dworkin, Ronald (1994). Life’s Dominion: An Argument About Abortion, Euthanasia and Individual Freedom. Vintage Books Studio: 9. Berlin, I (1958) Two Concepts of Liberty. Inaugural Lecture as Chichele Professor of Social and Political Theory Oxford. Clarendon Press. 10. Dworkin, R. and McConnell, M. (1997). Assisted Suicides. Retrieved on August 20, 2006 from http://www.slate.com/id/3646/entry/23873/ 11. Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992). 12. St Georges Healthcare NHS Trust v S [1999] Fam; 26:46-7, cited in Hewson B. (2001). Reproductive autonomy and the ethics of abortion. The Journal of Medical Ethics. 2001; 27:iI10-ii14 [Electronic reference] 13. Doe v. Bolton, 410 U.S. 179, 192 (1973) Read More