Governor Jeb Bush Sends Lawyers to Represent a Fetus:
Targeting A Mentally Retarded Pregnant Woman for Pro-Life Intervention

By SHERRY F. COLB
Wednesday, Aug. 27, 2003

Several months ago, Florida Governor Jeb Bush intervened in a case to try to have a guardian appointed for a fetus. Bush's motion was denied, but he has now sent lawyers to assist in the appeal.

The fetus in question is believed to be a product of the rape of a severely retarded 22-year-old woman, who police say has the mental capacity of a one-year-old. If she is still pregnant, which is unknown, the woman - known as J.D.S. in court papers - is very close to term.

Both pro-choice and pro-life groups view Governor Bush's efforts as an assault on abortion rights. But it may in fact amount to a far broader assault on the ideals of this nation.

The Conflict Between Fetal Guardianship and the Right to Choose Abortion

There are two ways in which guardianship for fetuses might conflict with the right to terminate a pregnancy. The first has to do with the status of the fetus; the second, with the status of the pregnant woman.

If a guardian can be appointed for a fetus's protection, it may follow that the fetus is a "person" with entitlements independent of, and perhaps in tension with, those of its mother. Also, if her fetus's interests can legally circumscribe a pregnant woman's actions, then it is difficult to imagine that there will not be severe restrictions on a deliberate decision to deprive the fetus of life.

In short, as a matter of logic, it would seem, guardianship for a fetus enhances the legal status of the unborn, and simultaneously diminishes that of pregnant women. Neither move bodes well for abortion rights.

Governor Bush's Targeting a Retarded Woman Should Be Troubling To All

Yet the case of J.D.S. also raises a different issue - one that should perhaps cloud its initially evident attraction for abortion opponents. The prospect of utilizing an advocate for a fetus who might clash in court with an advocate for a retarded pregnant woman has an undesirable implication. It looks, specifically, as though for Jeb Bush, people with developmental disabilities occupy a lower rung of the moral ladder than healthy people, for whose fetuses the governor does not seek guardians.

The message - that a retarded woman has a lesser status than her "normal" counterpart - discredits the pro-life agenda in two ways. First, it implies that perhaps some kinds of abortion - those of babies with Down Syndrome, for example - might be less objectionable than others. And it does so, not on the neutral ground that no woman should be forced by the state to bear the substantial physical and emotion burdens of pregnancy. Instead, it does so on the eugenics ground that not all lives are equal.

Second, it suggests that if a disabled woman does remain pregnant, her own medical best interests - as voiced by her legal guardian - ought to be subordinated to, or at least balanced against, those of her fetus.

The fact that the pro-life Jeb Bush selects a retarded woman as a target for adversarial fetal protection law thus has disturbing implications for the value a pro-life society might place on its most vulnerable members.

The Fact that J.D.S. Herself Has a Guardian Does Not Justify Targeting Her

Pro-life readers might object that Governor Bush selected the J.D.S. case for intervention only because there is already a guardian involved (the retarded woman's), and it thus seems appropriate to bring in a second guardian.

This explanation, however, ignores the fact that J.D.S. only has a guardian because of her mental retardation. Her guardian is thus empowered to protect J.D.S. in the way that competent women would ordinarily protect themselves.

Introducing a fetal guardian changes the picture substantially. Currently, there is one decision-maker for J.D.S.'s body - a guardian who stands in the place of J.D.S.. But when a fetal guardian is added, there are competing decision-makers, one of whom is specifically installed to view J.D.S.'s body as little more than a live incubator.

Consider an analogy. Say a four-year-old child named Jane has a rare blood type, and an unrelated adult named John desperately needs a transfusion of such blood. Assume further that Jane is injured, and her parents are advised to obtain a transfusion for their daughter. A lawyer for John, however, intervenes and tries to enjoin the transfusion. Jane will not die without the blood, the lawyer argues, but if she gets a transfusion, her blood will become unsuitable for John, who does need a small quantity of it in order to survive.

Jane's parents will ordinarily make any transfusion decisions on their daughter's behalf, because she is too young to do so on her own. But that fact does not make it any more appropriate for John's attorney to weigh in on the matter in court, than it would be if Jane were thirty years old and making the decision for herself.

Why Prohibiting Abortion Mandates Altruism

This analogy will bother opponents of abortion, because it suggests that abortion prohibitions mandate altruism, an anomaly in U.S. law. Pro-lifers prefer to view an abortion ban as a proscription against violence, no more or less controversial than a homicide statute.

The problem with this view is that refraining from murder does not, in any other context, demand that a person share the contents of her body with another human being for a lengthy period of time. Because the fetus takes oxygen, nutrients, and internal space from a woman, mandatory pregnancy is far more like an extreme version of forced blood and tissue donation than it is like a homicide prohibition.

Prior to fetal viability, moreover, simply removing a fetus from inside a woman will end the fetus's life. Though abortions generally involve killing the fetus prior to removal, that is done out of concern for the mother's health. Even if it were carefully removed intact, however, with the best of intentions, the fetus would die, and no one could do anything to save it.

This fact is significant, because it means that to obey a prohibition against terminating a pregnancy, it is not enough for a woman to refrain from killing another being or otherwise doing violence. She must also hold a fetus inside her body and allow it to absorb everything it needs for nine months. Asking that of her is far more intrusive than asking a person simply to eschew violence.

Why J.D.S.'s Is An Exceptionally Weak Case In Which to Require Altruism

The common response to the forced altruism argument is that someone like the four-year-old Jane in our earlier example is not responsible for creating the person who needs her blood (or for creating the need itself). A woman who has sex with a man, by contrast, does create both the fetus and its need for sustenance. Having invited the fetus into her body, where it consequently depends on her for life, the argument goes, she should not be able to order it to leave and face death.

Even under normal circumstances, this response is weak. Given the slim odds of pregnancy any one time people have sex, the act can hardly be described with a straight face as a fetal invitation. Failure to lock one's door might as easily be described as a burglary invitation. It takes a risk, but that is all. And when people use contraceptives, the "risk equals invitation" argument becomes that much weaker.

In any event, this response - poor as it is generally - is entirely unavailable in the case of J.D.S.. She is believed to have conceived during a rape that took place in a group foster home where she lived. She therefore did not consent to - and indeed, was not capable of consenting to - anything that might be construed (however implausibly) as an invitation to use her body to sustain another life.

Why Targeting J.D.S. Is Not Only Wrong, But Tragic

Tragically, J.D.S.'s disability - which should have entitled her to special governmental accommodation - has instead led to her being singled out for discriminatory treatment.

It is because of J.D.S.'s severe disability that she was incapable of consenting to sex. It is because of her severe disability that she is incompetent to make medical decisions on her own behalf and requires a guardian. And it is thus inescapable that it is also her severe disability that makes her such an appealing candidate for pro-life activist intervention.

The Governor's defenders will probably counter that the selection of J.D.S. was purely opportunistic. Were it possible to appoint guardians for every fetus, Bush would happily do so. But regrettably, the law seems to provide an opening only in the case of the severely retarded pregnant woman.

This response is morally repugnant. Whenever people choose to pick on the retarded (or the vulnerable generally), they do it at least in part because they expect to get away with it. Indeed, were it not for her disability, J.D.S. might not have been selected by a rapist who anticipated that his crime would go undetected if committed against a woman could not speak or complain about the outrage committed against her.

Unlike a normal, functioning adult woman, J.D.S. is impaired enough to tempt the governor of her state to try to elevate her fetus's interests over her own. For this, our president's brother should be ashamed.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. Her additional essays on abortion and other issues may be found in the archive of her columns on this site.

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