law

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.

What’s Your favorite Woody Allen Movie? [link]

What’s Your favorite Woody Allen Movie? [link]

An EXTREMELY Powerful Open Letter from Dylan Farrow

A must-read for all members of society.

*Trigger Warning*

 

“I didn’t know that I would be made to recount my story over and over again, to doctor after doctor, pushed to see if I’d admit I was lying as part of a legal battle I couldn’t possibly understand. At one point, my mother sat me down and told me that I wouldn’t be in trouble if I was lying – that I could take it all back. I couldn’t. It was all true. But sexual abuse claims against the powerful stall more easily. There were experts willing to attack my credibility. There were doctors willing to gaslight an abused child.”

#FreeOurMidwives

midwife listening to belly

The following excerpts are taken from the CFAM website, a site dedicated to California Families for Access to Midwives:

 

“Yelena Kolodji and Kavita Noble are CA Certified Nurse Midwives (CNMs) who are being prosecuted. Their only alleged offense: failing to obtain physician supervision.

It is virtually impossible for midwives to obtain physician supervision for out-of-hospital births. California Families For Access to Midwives (CFAM) fought hard to remove this unnecessary requirement from law. Thanks to enormous consumer pressure, as of January 1, 2014, physician supervision will be a thing of the past for Licensed Midwives in California —  but not for CNMs.

While most CNMs practice in hospital settings where physician supervision is virtually automatic, the few CNMs who provide out-of-hospital maternity care are forced to practice illegally since physicians are unwilling and/or unable to supervise them.

Yelena and Kavita have been providing comprehensive care to pregnant mothers and newborns for more than a combined 40 years, and have caught a combined 2,000 babies in hospital, birth center, and home settings.”

———————–

“This case also raises the broader question: do mothers have a right to access the full range of maternity care services their providers are trained and skilled to deliver?

When two skilled, experienced, and appropriately licensed midwives are prosecuted for providing appropriate care that results in a healthy mother and healthy baby, it is a sign that something is wrong with the system.”

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“Please get involved in our efforts to support midwives Yelena and Kavita during this trying time by:

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The legal issue at hand is one of non-compliance with CA state law mandating physician supervision for CNMs. But what is the purpose of such a law? It’s mere existence infers that midwives are inept, or at best, not fully competent, to attend childbirth as autonomous medical professionals—as if they need an authoritarian medical professional overseeing them. Yet midwives are extensively trained in childbirth and perinatal care. If anything it’s the OBGYNs who are not trained well enough in the ways of natural childbirth and effective labor coaching.

Rules like this are in place for bureaucratic reasons—in the legal and financial interests of physicians—not in the interests of mother and baby’s health. It’s about insurance, it’s about money, it’s about fear of lawsuits. It’s not about the best birth outcomes.

 

For more information, check out my Sources:

 

who decides how she gives birth

 

 

 

Allow Me To Introduce Myself…

FEMINISM

Hello, my name is Justine.

I’m the woman behind MFB.

Seeing as I’m coming up on almost 50* posts by now, and some of you are actually reading this, I thought it a good time to tell you a little bit about myself.

I’m the youngest of three children, with an older brother and an older sister.

My brother and sister both have dirty blonde hair (at least naturally they do), green eyes, sun-kissed light skin, and they’re both tall. I’m five feet tall with brown eyes and dark brown hair (at least naturally, it is) and I have olivey-tan skin. I’m adopted. Yet I somehow look more like our mom than they do.

I used to sing and play guitar in coffee shops. (Yes, it was the 90s)

I grew up in Venice, CA. (Think: beaches, skateboarding, drive-by shootings!)

I used to work with animals. Then I worked in fashion. Then even later, I traded in my Gucci and Prada for t-shirts and jeans in order to work at a grocery store while in college. Giving up that fabulously fashion-forward job to go back to school full-time was one of the hardest things I’ve ever done. And I had just left my boyfriend of 5 1/2 years right before doing it (yes— leaving him was easier than leaving the job).

I left home at 17, but only became a serious college student at 22, just shy of my 23rd birthday. I mean, come on—living on my own, and in a different state at 17 years old….? For me, being a responsible and independent SEVENTEEN year old college student was riddled with contradictions.

Once I did become serious about obtaining my B.A., however, I was an English major for the first three years  until I got to UC Berkeley…where I felt like the universe had opened up a Pandora’s box of all the world’s knowledge from which I could pick and choose what I wanted to learn. Who could pick just one “major” from all this worldly knowledge…? So I went with the department that let me make up my own. I majored in Gender Politics (under the auspices of the American Studies Department) and ended up studying how and where law and gender intersect. I spent over a year researching and writing my thesis, which was on the socio-politics of childbirth. If you’re curious, you can read an excerpt here.

I became so enamored with reproductive law and feminist jurisprudence that I actually went on to law school in order to pursue a career as a legal advisor in the field of ARTs (Assisted Reproductive Technologies), as well as possibly practicing midwifery law (midwives need good lawyers dammit). Unfortunately, as I came to learn, law school is a soul-sucking experience and as much as I loved studying the law, I knew a life in law was not the life for me. But I continue to study it in my own way, writing about that which I am passionate about here, and I do still enjoy at least attempting to apply legal reasoning to my everyday life.

When I first started college I was a musical theatre major.

Music will always and forever be my first love. I still own two guitars from when I was 15 and 21, and still listen to a lot of the same music I listened to at age 13, 15, and 20…which seems weird to me now because that seems so long ago. I have also had the #1 most favorite song in the world for the last 20+ years. I listen to so much music, and so many different kinds, I like to think that I am some kind of idiot savant when it comes to the music round at pub quiz, but if I were really that good at identifying so many songs and musicians, my team and I would probably win more.

The end.

 

*This article has been revised as of 1/13/2014. When first published I was only at approximately 20 posts.

Katt Williams’ International Adoption

This morning I heard on the radio that Katt Williams is finalizing his adoption of a six-year old Russian boy named Vladimir. This will be Mr. Williams’ 8th adoption. He already has 8 children, 7 of whom are adopted, 1 of whom is a biological son.

I, personally, don’t really know much about Katt Williams except for the fact that he had a very recent, and very public, ostensibly drug-induced meltdown here in Oakland, and that he has a laundry list of other legal troubles as well, including custody issues.

While I think it can be indicative of a very big heart to want to adopt so many children (I’m one of those “always give ’em the benefit of the doubt” people), international adoptions are a whole other ballgame, often fraught with an entirely unique set of social, cultural, and political issues. But opinions aside, I can’t even wrap my head around how this is legally feasible. I don’t care if the man is Tom Hanks, or Saul Perlmutter, the fact is, with a record like Williams’ this story just defies logic. And really, if this issue interests you at all, I highly suggest you read the article in that last hyperlink.