abortion

BUT I AM PRO-LIFE!

Californiapenalcode

 

I hate the term “pro-life.”

I hate it because it’s a misnomer. I hate it because it’s completely misleading, not to mention meta-rhetorical in the worst way. I hate it because in spite of being well-versed in debates about women’s health and abortion (and therefore knowing full-well that I am “pro-choice”), I constantly find myself writing, typing, thinking, and saying the term “pro-life” when I actually mean to say “pro-choice.”

I suppose this happens because I actually am pro-life. I believe in the value of a human being’s life, and I believe in the inalienable right to bodily autonomy for each and every one of us. And because I believe in this right, I believe in every woman’s right to choose. Choose her life. She is a human being and I believe in the value of her life—and her inviolable right to choice—whoever she is.

Below is a case brief I wrote back in my L1 Criminal Law class, on the case of Keeler v. Superior Court. I am sharing it today because it underscores some very important legal facets with regard to who is considered a ‘human being’ according to the law, how murder, feticide, and abortion are all  differentiated in accordance with the law, and why making these distinctions is so crucial, not only to our legal framework, but to well-informed, intelligible, and respectful debates.

 

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KEELER v. SUPERIOR COURT (1970)

FACTS:

  • Man blocked woman with his car while she was in her car
  • Talked to her, pulled her out of the car, got upset at seeing her pregnant stomach and said
  • “I’m going to stomp it out of you”
  • Proceeded to beat her mostly in the stomach, but also in the face
  • Left her there unconscious
  • Woman woke up and drove back to Stockton where she received medical attention
  • Fetus was examined in utero & delivered by cesarean- stillborn
  • cause of death: skull fracture w/ consequent cerebral hemorrhaging

ISSUE: Is an unborn, but viable, fetus considered a “human being” within the meaning of CA’s murder statute?

RULE: No, the majority holds that CA’s Penal Code, Sec. 187 does not mean to include unborn, yet viable, fetuses within its meaning of “human being.”

ANALYSIS: To expand upon the CA statute in order to include unborn, but viable fetuses, would elicit two problems:

  1. jurisdiction, in that the court would be overstepping its judiciary boundary (into the territory of legislature) and
  2. it would violate the defendant’s right to due process by creating a law that would have been unbeknownst to him, because they would be creating it right then and there in that courtroom. Moreover, this violates the prohibition of creating ex post facto laws (because that’s what they would be doing if they were to expand on the statute’s meaning- creating a new law). Finally, there is persuasive authority guiding the majority’s decision- looking at similar cases throughout the country, other states are “unanimous in requiring proof that the child was born alive before a charge of homicide can be sustained.”

CONCLUSION: An unborn fetus, even if viable, is not a “human being,” as regarded by CA state law, the courts are not to overstep their bounds by augmenting statutory law, and if the court were to augment the law within the midst of a case, such as the People would suggest in this one, it would be a violation of due process.

 

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I cannot tell you how many times I have heard the phrase “slippery slope” used by one of my law professors in school, because, really, all it takes is one single word to have been different in a law, one ruling to have been different in a court case, and suddenly you are talking about far-reaching implications and ramifications for many other laws (and individuals) all over the country. Change one legal facet and you are looking at a potential (or rather, probable) shift in our entire legal landscape.

For example, in one class we were looking at cases of pregnant women who had been guilty of intoxication and the legality (or rather, illegality?) of whether or not Child Protective Services could (or should?) be called on them. Can there be—and/or should there be—any legal repercussions for being intoxicated while pregnant?

Can the woman be taken into custody?  After all, there was no actual ‘child’ involved, therefore the rule does not apply. It doesn’t meet the criteria required in order to file charges for child abuse or neglect. Can she be jailed or imprisoned—if there was no possession, no intent to sell, nothing besides the fact that she did in fact test positive for drugs or alcohol? And if she currently cannot be taken into custody according to the law, should she be? After all, once again, there is no child involved—only a fetus, and legally a fetus is not a human being. That’s why it’s called a fetus. And before that it’s called an embryo, and only after it is no longer a fetus is it called a human being.

To be clear, all of the cases we were looking at involved women whose pregnancies were past the point of viability. In other words, all of these women had chosen to go through with their pregnancies and either have a child, or give it up for adoption. In any case, I cannot tell you how much such actions infuriate me. I have had the misfortune of personally knowing a couple of women who have been guilty of these same actions (e.g. doing crack while pregnant with a baby they and someone close to me were going to have). It makes me livid. Beyond livid. I would love to see such women go to jail for this. However, if such legislation were to exist it would compromise the current status quo in a major way. In actuality, it would probably compromise the lives of many more women than initially intended. Remember, CPS only has jurisdiction over juvenile human beings. If they were to have the authority to take action over such cases it would conflict with existing precedent (such as Roe v. Wade and Keeler v. Superior Court), comprising abortion law as we know it today, and bringing with it a whole host of other ramifications. Where would the line be drawn?

Let’s say there’s a woman at a bar, enjoying a glass of wine after a long day at the office. Another patron at the bar—a complete stranger—looks at the woman enjoying her glass of wine and for whatever reason thinks, “Why is that pregnant woman drinking? Unbelievable. I’m calling the authorities.” The woman is taken into custody and it turns out, unbeknownst to her, she is actually pregnant.

What then?

Such legislation and/or rulings could also greatly impact our legal framework (or at least what little of it there is) for assisted reproductive technologies. There are already intense debates going on about leftover embryos, surrogates, and whose rights govern whose genetic materials, and when we are talking about reproductive law at large, it encompasses these aspects as well.

This just about covers the tip of the iceberg as to why I am pro-choice. Yes, I believe in a woman’s right to choose, but I also strongly agree with the legal reasoning behind the majority’s decision in Roe v. Wade, and I don’t think the implications of changing such precedent are worth it. I am pro-choice because, in actuality, I am pro-life. A pregnant woman’s right to her own body and life should never be superseded by the State. Her life comes first—whether she chooses to go through with her pregnancy or not—in either case, it is her life on which everything rests, so why shouldn’t this be her choiceAs the Court concluded in its decision:

“The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.”

You see, I am pro-life. Because I believe that life starts at the woman.

It’s her life—therefore her decision.

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PLAN B (a.k.a. “Hussy Pills”)

plan b

Big news this past week:

Plan B, also known as the “morning after pill,” (or in the words of pseudo-conservative, Stephen Colbert, “hussy pills”) will now be made available over the counter—no prescription required—for girls and women, ages 15 and up.

Naturally, according to conservatives, this just means society is practically pushing young girls into having sex.

Ok, first of all, if anything in society is pushing young girls into having sex, it’s the media and our visual culture’s sexualization of girls and women. Moreover, this line of thinking fails to acknowledge that a young woman may actually be capable of possessing her own sexual agency. I know teenagers are crazy, with their hormones flying all over the place, and they often think they know everything, when as we all clearly know from hindsight, they don’t…. However, it is a point in time during which many are figuring out their own sexuality, and learning to be their own sexual agents (God willing!). So, with that kind of thinking in mind, the old “this is encouraging promiscuous behavior!” rhetoric is really rather patronizing. Plan B isn’t going to “encourage” unprotected promiscuity any more than abortion “encourages” unplanned pregnancies.

Not to mention, this brings up the most glaringly contradictory flaw contained within any and all Republican/conservative, pro-life arguments against contraception:

If you’re so anti-abortion, you should love contraception. You should want more of, and increased access to, contraception. It actually prevents abortions. Guess what, conservatives and Republicans— it’s thanks to Planned Parenthood that I, and many other girls and women out there in the U.S., have never even had to consider abortion. Thanks to Planned Parenthood, and access to contraception. It will never cease to amaze me how pro-life/anti-abortion politicians seem to conveniently leave out of their arguments the fact that contraception is actually essential to their cause. (That and sexual education, which is another thing they are often illogically against.)

And if they want to argue for abstinence or some other such farce, well, that leads to the biggest caveat of all:

TEENAGERS HAVE SEX. Overwhelmingly, regardless of your opinion, or your morals, or what you choose to believe, the fact of the matter is: TEENAGERS HAVE SEX.

A few facts, taken from the Guttmacher Institute website:

  • Although only 13% of teens have had sex by age 15, most initiate sex in their later teen years. By their 19th birthday, seven in 10 female and male teens have had intercourse.
  • On average, young people have sex for the first time at about age 17
  • A woman who is sexually active and not using contraception has an 85% chance of becoming pregnant within a year.
  • Each year, almost 750,000 U.S. women aged 15–19 become pregnant. Two-thirds of all teen pregnancies occur among 18–19-year-olds.
  • Overall, 68 pregnancies occurred per 1,000 women aged 15–19 in 2008. The 2008 rate was a record low and represented a 42% decline from the peak rate of 117 per 1,000, which occurred in 1990.
  • The majority of the decline in teen pregnancy rates in the United States (86%) is due to teens’ improved contraceptive use; the rest is due to increased proportions of teens choosing to delay sexual activity.
  • Despite having declined, the U.S. teen pregnancy rate continues to be one of the highest in the developed world. It is more than twice as high as rates in Canada (28 per 1,000 women aged 15–19 in 2006) and Sweden (31 per 1,000).
  • Eighty-two percent of teen pregnancies are unplanned; teens account for about one-fifth of all unintended pregnancies annually.

[Read more from the Guttmacher Institute’s Fact Sheet on American Teens’ Sexual and Reproductive Health Here.]

Finally, I heard a new one here:

According to Conservative Columnist, Francesca Chambers, “Repealing the age restriction to buy the morning after pill will encourage young women who are too embarrassed or afraid to talk about sexual abuse to bypass the authorities. Terrible men who deserve to go to prison could never face charges, allowing them the opportunity to continue feeding their sexual addiction. Despite the way many pro-choice advocates are attempting to frame the issue, this is not a women’s health or a women’s rights issue.”

Wow. I have never heard of access to contraception as something that could, or would, “encourage young women…to bypass the authorities” when it comes to rape. Once again, I am encountered with ill logic. Have we ever relied on pregnancy as an indicator of sexual abuse? Moreover, she is either unaware of the conditions that actually do engender girls and women keeping quiet about rape, or she is aware, but chooses not to disclose that information. Let’s see: Threat of death, humiliation, no one believing you, ostracization, and now, apparently you could get kicked out of school… And then there’s this:

Why Will Only 3 Out of Every 100 Rapists Serve Time?

And ultimately, Ms. Chambers, this IS a women’s health AND a women’s rights issue. It has to do with our—specifically, women’s—sexual and reproductive health. It doesn’t get any more logical than that. (Maybe she’s never heard of a uterus or a vagina? Then again, if she’s a conservative, probably not- those words are dirty!) To try and argue otherwise is like trying to argue that contraception and unplanned pregnancies have nothing to do with each other.

La Femme Fetal

One of the most amazing politically conscious pieces of music ever…

La Femme Fetal by Digable Planets

Lyrics:

It was 8:49 on a beautiful 9th day of July
There was not a cloud to speak of
So the orange sun hung lonely in the sky
I lay prone in my catboat home
Thinking of fine nappy Jackie and his jazz cat’s horn
Sliding in a tape of bird on verve when suddenly rang my phone

“Hey butterfly”, the voice said
Slip on some duds comb out your fro and slide on down to my pad
The vibe here is very pleasant and I truly request your presence
A problem of great magnitude has arose and as we speak it grows
Damn, what could it be I thought
A juice I bought and rolled on down to her spot
Seeing bros I know slapping fives I arrived and pressed G-5
And there was Nikki lookin’ some kind of sad
With tears fallin’ from her eyes she sat me down
And dug my frown and began to run it down

“You remember my boyfriend Sid that fly kid who I love
Well our love was often a verb and spontaneity has brought a third
But do to our youth an economic state, we wish to terminate
About this we don’t feel great, but baby that’s how it is
But the feds have dissed me, they ignored and dismissed me
The pro-lifers harass me outside the clinic
And call me a murderer, now that’s hate
So needless to say we’re in a mental state of debate”

“Hey beautiful bird”, I said digging her somber mood
The fascists are some heavy dudes
They don’t really give a damn about life
They just don’t want a woman to control her body
Or have the right to choose but baby that ain’t nothin’
They just want a male finger on the button

Because if you say, “War”, they will send them to die by the score
Aborting mission should be your volition
But if Souter and Thomas have their way
You’ll be standing in line unable to get welfare
While they’ll be out hunting and fishing
It has always been around, it will always have the niche
But they’ll make it a privilege not a right accessible only to the rich

Hey pro-lifers need to dig themselves ’cause life doesn’t stop after birth
And for a child born to the unprepared it might even just get worse
The situation would surely change if they were to find themselves in it
Supporters of the h-bomb and fire bombing clinics
What type of shit is that? Orwellian in fact
If Roe V Wade was overturned would not the desire remain intact
Leaving young girls to risk their healths
Doctors to botch and watch as they kill themselves

Now I don’t want to sound macabre
But hey, isn’t it my job to lay it on the masses
And get them off their asses to fight against these fascists
So whatever you decide make that move with pride
Sid will be there and so will I
An insect ’til I die

Rhythms and sounds, spinning around
Confrontations across the nation
Your block, my block, dreadlocks what a shock
Land of the free but not me
Not me, not me, not me, not me
Not me, not me, not me, not me

 

 

 

 

 

Thank you, Chelsea Handler

Thank you, Chelsea Handler, for showing the world in a blip of a moment that I’m sure went relatively unnoticed, that abortion does not equate an evil person, nor a cursed life, nor does it need be swept under the rug as some shameful thing of which you should never forgive yourself; But rather, in this “blip of a moment that I’m sure went relatively unnoticed” (yes, I just quoted myself, I’m allowed to) she showed that it can actually be (and often is) something that just happened to occur in a woman’s life, it was no doubt a difficult choice and an emotionally charged tribulation, but a tribulation surmounted nonetheless, and guess what- a woman’s life can actually continue successfully after having had an abortion.

I saw this interview on Conan the other night (& the exact moment to which I am referring is at about 2:37) and in this brief moment all I could think was, “Whoa…holy crap. Bravo, Chelsea Handler.”

Not for having had an abortion, of course. Who ever says “hooray” or “bravo” with regard to abortion? In spite of what many Republican/ Conservative/ Pro-lifers may think, NO ONE, that’s who. I immediately thought this because she was brave enough to admit that she had gone through it, yet she also demonstrated that this one act need not (and does not) define her as a person, nor did it curse her life, and moreover, she knows, like many women out there, that it was the right decision for her. No apologies. No regrets.

Another reason this thought immediately popped into my head is because, well… Have you ever thought about, or noticed, how abortion is portrayed by Hollywood (i.e. the dominant media- one of the most influential shapers of society & therefore us, as individuals)? Or conversely, have you ever noticed how it is not?

A few examples… and maybe you’ll see what I see:

Dirty Dancing: botched abortion, she almost dies

If These Walls Could Talk: abortion = death

Citizen Ruth: abortion avoided! (she miscarries)

Things You Can Tell Just by Looking at Her: abortion = depression & eternal loneliness

High Fidelity*** (this one merits more discussion below)

Sex and the City (the series): abortion avoided! Miranda changes her mind

Knocked Up: “the A word” is never actually spoken

Juno: abortion avoided! Juno changes her mind

Revolutionary Road: abortion = death

Are you seeing a pattern here?

Not that abortion should be glorified, nor should it be trivialized, but there aren’t really any movies out there that deal with it in a realistic and honest way. For example, perhaps in a way that demonstrates that a woman can come to this difficult decision, make that choice, but ultimately get through it and go on living a “normal” and successful life. (something that I believe actually occurs more often than the dominant media would have us believe)

***High Fidelity, however, is an exception. Which just brings me back to this blip of honesty and candor brought to us by Chelsea Handler…

High Fidelity is the only movie (that I can think of presently) that actually addresses abortion in a real and honest way. Audrey Fisch sums it up best in her salon.com article:

“High Fidelity,” in a context free of dogma and high drama, represents Laura’s abortion as a brief moment of crisis that does not doom her to eternal unhappiness. In fact, the film gives Laura and Rob a happy ending. That is radical. When has a movie ever suggested that a woman can have an abortion and move on with her life?… “High Fidelity,” with its brief depiction of Laura’s abortion as distressing but surmountable, actually delivers the more radical message that abortion doesn’t have to be the stuff of tragic melodrama. It can be, and often is, simply one compelling anecdote in the overall narrative of life.

So I repeat: Chelsea Handler, thank you for demonstrating in this millisecond moment that abortion need not be “the stuff of tragic melodrama,” but rather, can be a choice made by a woman that can be “simply one compelling anecdote in the overall narrative of life.”