Why the Republican Platform, not Repudiated by Romney, Would Destroy Women’s Rights: Part II

            Alissa Pugh might be in prison now if the Massachusetts highest court, the Supreme Judicial Court, had adopted the Republican party platform’s position on rights of fetuses. Her fetus died during an unattended home delivery. She was prosecuted and charged with manslaughter, convicted of involuntary manslaughter and sentenced to two and a half years in a house of correction. The Supreme Judicial Court (SJC) reversed her conviction. (Commonwealth v. Pugh, decided June 15, 2012.)

            After experiencing pain at work, Ms. Pugh went home to give birth to what would have been her second child. Instead of feeling a baby’s head emerging during the birth as she anticipated, she felt a foot. She somehow managed to give birth on her own, but the baby was blue. She tried to resuscitate it, but failed. This event led to the charge of manslaughter.

            With her attorney, she chose a trial without a jury. The judge determined that she had a legal duty to seek medical assistance. Her failure to do so constituted wanton or reckless acts against her viable fetus. Thus, he convicted her of involuntary manslaughter, a lesser version of manslaughter.

            We must be careful at this point not to blame the judge who convicted her. He was in a difficult spot. The law of Massachusetts at the time was sufficiently unclear that an argument could be made for conviction. The only way to make the law clear was to get the case before the SJC. If he had acquitted her, the case would have ended and not gone to the SJC, so the law would have remained unclear. If he convicted her, he had good reason to believe that the case would be appealed and that the SJC would rule as it did. It is likely that this is what he was thinking. He suspended her sentence pending appeal, so she did not actually serve any time.

            The SJC ruled as anyone familiar with this progressive court would expect. While determining that the facts did not support the conviction, the Supreme Judicial Court, in a unanimous opinion, also determined that Ms. Pugh had no legal duty to seek medical assistance for the birth. “Medical assistance imposed by the judge in this case would amount to a significant incursion on the birthing woman’s liberty interest in freedom from an unwarranted degree of government surveillance and coercion.” In effect, the court acknowledged what I stated in Part I of this series.

            The Republican platform says something quite different.  It states, “We support a human life amendment to the Constitution and endorse legislation to make clear that the Fourteenth Amendment’s protections apply to unborn children.” The Fourteenth Amendment provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” The platform also states that “the unborn child has a fundamental individual right to life which cannot be infringed.” (These words have been there and repeated since 2004.)

            Thus, the Republican platform treats the fetus, viable or not, the same as a child or an adult. Whereas the Supreme Judicial Court has said that “there are inherent and important differences between a fetus, in utero, and a child already born,” the platform removes that distinction. By taking a slightly different view of the same facts, a court that followed the Republican platform would have upheld Ms. Pugh’s conviction.

            The Supreme Judicial Court was mindful of the implications of a conviction. “Every decision a woman makes during her pregnancy, medical or otherwise, could have a profound impact on the fetal life inside her.” There are “countless ways in which a woman can be perceived to endanger her fetus during pregnancy or childbirth.”

The Supreme Judicial Court realized that a conviction would mean that these “countless ways” could all be subject to governmental surveillance and intrusion to protect the fetus, just as I explained in Part I. The court’s decision protects pregnant women. The Republican platform does not. In asserting the equal rights of the fetus, the platform would open the door to governmental surveillance and intrusion into the lives of all pregnant women. It is likely that some courts in some states will reject the position of the SJC and make every effort to follow the intent of the Republican platform.

As I stated in Part I, since Mitt Romney has not repudiated this part of the Republican platform, it means that, since he is a Republican, we must assume that he supports it. If this part of the platform were implemented, many women who do not seek an abortion will nonetheless go to jail if their fetus dies.

Thus, much is at stake in this presidential election--the rights of women and the very meaning of democracy. But after the election, even if Obama wins, the Republican platform advocating giving equal rights to fetuses will continue to threaten the rights of women and the values of democracy.

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Links:

• Part I
• Commonwealth v. Pugh
• How We Are Our Enemy and How to Stop, containing in Chapter 5 a section titled “Take Equality Seriously – Give Women Full Rights to Their Bodies,” that explains the anti-democratic ramifications of pro-life extremism and what should be done to strengthen women’s right to choose.