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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