Federal judge: more rights for the unborn

Fetal Obligations
By JEFF INGLIS  |  June 11, 2009

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Following the tragic shooting in Kansas last month, pro-choice advocates have been dealt another disheartening setback: a federal judge in Bangor, Maine, has recognized a new right of fetuses that could become a key element in the nation's ongoing abortion debate.

In May, Judge John Woodcock Jr., the chief federal judge in Maine, ordered an HIV-positive pregnant woman from Cameroon, who pleaded guilty to possessing false immigration documents, to remain in federal prison until after her expected delivery date. The judge said he worried that, if Quinta Layin Tuleh was released or in the custody of immigration officials — who are seeking to deport her — she would not have access to medication that can prevent HIV transmission from a mother to her fetus.

"My obligation is to protect the public from further crimes of the defendant, and that public, it seems to me at this point, should likely include that child she's carrying," ruled Woodcock. "I don't think the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault."

This sets out an argument that, legal experts say, if taken to its logical conclusion, could be used by a court to protect a fetus from its mother. (At the moment, fetal rights are generally limited to protection from strangers acting without the consent of the mother — as when someone who murders a pregnant woman can be charged with two offenses.) It also contradicts a key element of abortion rights: namely, that a mother is allowed to do what she wishes with a fetus, including abort it.

Maine activist groups are now reeling, with some worrying that it could mark a dangerous precedent for so-called negligent mothers. "When are you allowed to lock up a pregnant woman?" asks Zachary Heiden, the legal director of the Maine Civil Liberties Union. Can a pregnant woman convicted of a crime be sentenced to jail solely to ensure she takes prenatal vitamins, or stays away from junk food?

Others have claimed that this case highlights the failure of our health-care and immigration systems, and that the spirit of Woodcock's ruling violates the Americans with Disabilities Act.

Another curious wrinkle to this contentious ruling: federal prosecutors objected to the sentence, and have appealed it to the First Circuit Court of Appeals in Boston, which is expected to hear arguments by August.

"I've never heard of a prosecutor appealing" when the judge's sentence is longer than the government requested, says Heiden. Both his organization and the Disability Rights Center are considering supporting the appeal. Paula Silsby, the US Attorney for Maine, declined to comment, saying it was an ongoing case. Woodcock did not return calls seeking comment.

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