pageok
pageok
pageok
Refusal to Consent to Caesarean Section as Neglect of the Child?

From today's very interesting decision in New Jersey Div. of Youth & Family Servs. v. V.M. (N.J. Super. Ct. App. Div.):

Defendants V.M. [the mother] and B.G. [the father] appeal from the judgment ... which found that they abused and neglected their child, J.M.G. As a result of these findings, J.M.G. was placed in the custody and care of plaintiff Division of Youth and Family Services (DYFS). At a permanency hearing the judge approved DYFS's plan for termination of parental rights....

We agree that the judge's findings as to V.M. were supported by the evidence adduced at the hearing, but ... we disagree as to his findings as they relate to B.G.... [On the record before us, we do not think that] whether V.M.'s refusal to consent to a cesarean section (c-section) can, as a matter of law, be considered an element of abuse and neglect ... need be decided.

[T]he independent evidence presented, irrespective of the evidence concerning V.M.'s resistance to the c-section, amply supported the judge's ultimate finding as to V.M., and we affirm as to her. As to B.G., we reverse for the reasons set forth in the concurring opinion.

Carchman, P.J, concurring.

Defendants V.M. and B.G. are the biological parents of J.M.G., born on April 16, 2006. During her hospitalization in anticipation of J.M.G.'s delivery, V.M. demonstrated combative and erratic behavior including a refusal to consent to a cesarean section (c-section). Despite the medical opinion that the fetus demonstrated signs of distress and that the procedure was necessary to avoid imminent danger to the fetus, the child was born by vaginal delivery without incident.

After the birth of the child, plaintiff Division of Youth and Family Services (DYFS) investigated. It learned of V.M.'s refusal to consent to the c-section and discovered that V.M. had been under psychiatric care for twelve years prior to J.M.G.'s birth. Moreover, V.M. was not forthcoming about her treatment or diagnosis. B.G. also refused to cooperate with DYFS's efforts to obtain information.

DYFS commenced a Title 9 proceeding pursuant to the Abandonment, Abuse, Cruelty and Neglect Act (the Act), N.J.S.A. 9:6-8.21 to -8.106, and placed J.M.G. in its custody. At the fact-finding hearing, the trial judge found that J.M.G. was an abused and neglected child due in part to her parents' failure to cooperate with medical personnel at the time of her birth. V.M.'s refusal to consent to a c-section factored heavily into this decision. Later, at a permanency hearing, the judge approved DYFS's plan for termination of parental rights and foster family adoption.

On appeal, V.M. and B.G., among other arguments, assert that the judge erred in considering in his findings that they abused and neglected J.M.G. based on decisions that V.M. made concerning medical treatment, specifically, her refusal to consent to a c-section. At trial, DYFS asserted that V.M.'s refusal to consent to a c-section was a relevant factor in expressing abuse and neglect....

My majority colleagues conclude that irrespective of whether or not V.M. consented to the c-section, there was sufficient credible evidence to support a finding of abuse and neglect as to V.M. The majority therefore eschews any discussion of the issue of c-section.

I concur in the result reached as to both V.M. and B.G. I am of the view that ... [the c-section] issue remains extant and requires a level of judicial scrutiny. Consideration of V.M.'s refusal to submit to a c-section, in my view, is improper and beyond the legislative scope of the child-protective statutes. For this reason, I concur....

There is no allegation that J.M.G. was actually harmed by her parents. Rather, the judge's finding was based solely on the imminent danger of harm presented by V.M.'s actions and mental condition.

The unique problem here is that much of V.M.'s erratic behavior occurred before J.M.G.'s birth, while V.M. was still pregnant. N.J.S.A. 9:6-8.21(b) defines "child" simply as "any child alleged to have been abused or neglected." Nothing in the statute or the attendant legislative history suggests that the Legislature intended that the provisions of the Act should apply to a fetus....

The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.'s decision to forego a c-section had no place in these proceedings.

However, I agree that there was sufficient additional evidence to support the judge's finding that V.M. placed J.M.G. in imminent danger from April 16 to April 20, 2006. As the hospital records reflect, V.M. was "combative," "uncooperative," "erratic," "noncompliant," "irrational" and "inappropriate." She ordered the attending obstetrician to leave the room, did not allow the obstetrician to perform an ultrasound examination, told a nurse that "no one [was] going to touch [her] baby," refused to continuously wear the face mask that provided her with oxygen and would not remain still in order to allow for fetal heart monitoring and the administering of an epidural. Incredibly, she also called the Livingston Police to report that she was being abused and denied treatment when it was her "erratic" and "combative" behavior that was preventing the hospital staff from providing treatment....

For more, see the full opinion.

Related Posts (on one page):

  1. Refusal to Consent to Caesarean Section as Neglect of the Child?
  2. Refusal to Consent to Caesarean Section as Neglect of the Child?
Jim at FSU (mail):
Oh ok, one of the judges seems to have gotten it right....


The decision to undergo an invasive procedure such as a c-section belongs uniquely to the prospective mother after consultation with her physicians. To allow such a decision to factor into potential charges of abuse or neglect requires a prospective mother to subjugate her personal decision to a governmental agency's statutory interpretation creating a scenario that was neither contemplated nor incorporated within the four corners of the relevant statutory language. Her decision on matters as critical as this invasive procedure must be made without interference or threat. V.M.'s decision to forego a c-section had no place in these proceedings.


But wait, why is this a concurring opinion then? Maybe she abused the child after it was born...


As the hospital records reflect, V.M. was "combative," "uncooperative," "erratic," "noncompliant," "irrational" and "inappropriate." She ordered the attending obstetrician to leave the room, did not allow the obstetrician to perform an ultrasound examination, told a nurse that "no one [was] going to touch [her] baby," refused to continuously wear the face mask that provided her with oxygen and would not remain still in order to allow for fetal heart monitoring and the administering of an epidural.


God dammit. How the hell does this constitute child abuse or "putting the child in imminent danger?" My mother never had ultrasound, an epidural or hospital care of any sort and I was delivered at home by my father. Billions of mothers around the world give birth every year without any of those things. This woman is essentially having her child taken away because she dared to argue with her doctor.

Things like this are why I hate child services. It's the most abominable concept for a government agency I can conceive of.
7.16.2009 6:37pm
einhverfr (mail) (www):
I can't agree with this decision. Although In Re AC isn't binding on the second circuit, I hope that this will eventually be appealed to federal court on Constitutional grounds.

In In Re AC, the DC Circuit rejected this view too late, after AC had lost her life during a C-section she did not consent to. This was decided on basic Constitutional grounds and I would hope the second circuit would find the reasoning compelling.
7.16.2009 6:37pm
PeteP (mail):
Now judges are going to tell women whether or not they are required to have a C-section ???
7.16.2009 6:41pm
Eric C (mail) (www):
I have read some on the subject of c-sections and their (poor) medical applications. Most of what I read said the impatience of a doctor was the main reason for most c-sections, followed by designer birth moms. Additionally with epidurals. The current methods of child birth include the application of drugs, which leads to raised fetal heart rhythms, leading to more drugs, and finally a c-section. Many mothers prefer, matching the latest research, that non medicated natural child birth is better for the fetus and mother. What's interesting is that the doctors wanted to cut her open to save the fetus, but it turns out they were wrong, the fetus was fine.
7.16.2009 6:43pm
Hank Bowman, MD (mail) (www):
So, the hallmark of medical ethics (patient autonomy) no longer applies?

Damn, I was hoping that wouldn't kick in until AFTER hopnchanges medical nightmare started.
7.16.2009 6:43pm
einhverfr (mail) (www):

Now judges are going to tell women whether or not they are required to have a C-section ???


That is nothing new unfortunately.

What was new in In Re AC was that the DC Circuit ruled that it was a fundamental legal principle that we do not require one person to undergo an invasive medical procedure on behalf of someone else. I wonder if we are seeing a circuit split developing.
7.16.2009 6:47pm
einhverfr (mail) (www):
substitute "for the benefit of" for "on behalf of"
7.16.2009 6:47pm
Specast:
That seems like an awfully thin basis on which to take a child away from its mother. According to the concurrence:


As the hospital records reflect, V.M. was "combative," "uncooperative," "erratic," "noncompliant," "irrational" and "inappropriate." She ordered the attending obstetrician to leave the room, did not allow the obstetrician to perform an ultrasound examination, told a nurse that "no one [was] going to touch [her] baby," refused to continuously wear the face mask that provided her with oxygen and would not remain still in order to allow for fetal heart monitoring and the administering of an epidural. Incredibly, she also called the Livingston Police to report that she was being abused and denied treatment when it was her "erratic" and "combative" behavior that was preventing the hospital staff from providing treatment..


I bet lots of women might be described with those terms right after giving birth. She didn't appear to come anywhere close to causing harm to the baby.

That is not "abuse or neglect" of a child sufficient to remove it from its parents.

-- Specast, J., dissenting.
7.16.2009 6:50pm
Steve:
I completely agree with Jim at FSU. For a failure to cooperate with doctors to rise to the level of child abuse, you have to be talking about facts like "this baby will die unless you consent to a c-section." In which case you'd expect to see some evidence that the baby was actually harmed by the lack of consent, which doesn't seem to have occurred at all here.

It's well-known that many hospitals and doctors are overeager to recommend a c-section. Ultimately, it has to be the patient's decision, and it's outrageous for the government to say "make the right decision, or we may take your kid away."

And the stuff other than the c-section is just a patient being noncooperative with doctors, period. On an intellectual level, I can accept that the mother probably exposed her unborn child to a higher level of risk by behaving this way - and I don't condone that - but we can't have a legal regime where a pregnant woman becomes a ward of the state for nine months, obligated to obey every instruction she's given by a medical professional under pain of losing her child.

Somewhere out there, there's real abuse that's going unpunished because resources are being devoted to this type of case.
7.16.2009 6:53pm
einhverfr (mail) (www):
Steve:

For a failure to cooperate with doctors to rise to the level of child abuse, you have to be talking about facts like "this baby will die unless you consent to a c-section." In which case you'd expect to see some evidence that the baby was actually harmed by the lack of consent, which doesn't seem to have occurred at all here.


Where do you draw the line? Should a parent be required to donate a kidney to a child who needs a life-saving transplant?
7.16.2009 6:56pm
PersonFromPorlock:
I thought the infant (fetus, whatever) didn't exist as a person until after birth. Up until then, it's a part of the mother's body. Am I wrong from the start, or has my knowledge been overtaken by (legal) events?

Incidentally, the behavior of a woman caught up in the throes of pregnancy and giving birth probably isn't all that reliable an indicator of how she'll act later.
7.16.2009 6:56pm
SuperSkeptic:
So, would considering an abortion (but then not going through with it) ever become prima facie "abuse or neglect" - even if everything comes out okay?
7.16.2009 6:56pm
einhverfr (mail) (www):
One point though in agreement with one of Steve's points but taking it further:

It's well-known that many hospitals and doctors are overeager to recommend a c-section. Ultimately, it has to be the patient's decision, and it's outrageous for the government to say "make the right decision, or we may take your kid away."


Also note that the concurring opinion saw the refusal to use a fetal heart monitor as being an element of neglect without looking beyond that. However, the only studies that have looked at this show that the major change in outcome with the use of fetal heart monitors is, in fact, an increase in the C-section rate.
7.16.2009 7:02pm
Seamus (mail):

I bet lots of women might be described with those terms right after giving birth. She didn't appear to come anywhere close to causing harm to the baby.



It's worse than that. Unless I'm missing something, all that erratic and uncooperative behavior (e.g., refusal to wear an oxygen mask, refusal to sit still for an epidural, refusal to allow an ultrasound) is claimed to have taken place *before* the birth. (All this is hard to square with the concurring judge's holding that the law doesn't provide for abuse or neglect of a fetus.) After the child was born, she was whisked away and never left in the custody of her parents, which is another way of saying that the mother never got the chance to abuse or neglect her. So what, pray tell, was the basis for the finding that the child was abused or neglected. (Simply being a loon, which is, I gather, the real gravamen of the state's charge, may constitute a danger of abuse and neglect, but I don't see how it can by itself *be* abused and neglect.)

This is yet another reason why the last four of my five children were born at home.
7.16.2009 7:06pm
Steve:
Where do you draw the line? Should a parent be required to donate a kidney to a child who needs a life-saving transplant?

No, of course not. I wasn't particularly looking to debate the hard case where a c-section appears to be necessary in order to save the unborn child's life, other than to acknowledge that a hard case may exist. The concurring opinion seems to suggest that many courts have ordered c-sections in such situations.
7.16.2009 7:08pm
Dilan Esper (mail) (www):
Seems to me this is should be taken as a reminder that the right recognized in Roe v. Wade is supposed to not simply be about abortion, but rather a fundamental right of a woman in consultation with her doctor to make choices relating to reproduction that uniquely affect her body.

Seen that way, I would think that finding a refusal to consent to a c-section as neglect should be unconstitutional under Roe.
7.16.2009 7:09pm
http://volokh.com/?exclude=davidb :

Should a parent be required to donate a kidney to a child who needs a life-saving transplant?

Monty Python addressed a closely related question, and suggested a possible governmental program, some years ago.
7.16.2009 7:11pm
Steve:
So what, pray tell, was the basis for the finding that the child was abused or neglected. (Simply being a loon, which is, I gather, the real gravamen of the state's charge, may constitute a danger of abuse and neglect, but I don't see how it can by itself *be* abused and neglect.)

The concurring opinion discusses that the governing legal standard doesn't require a finding of actual abuse or neglect, but just a substantial likelihood that it will take place. This fact pattern comes dangerously close to the state simply saying "sorry, we don't think you're qualified to have a childbirth license."

Good on you for subscribing to homebirth, by the way. Having tried it with our last child I'd definitely recommend that anyone with a low-risk pregnancy should at least thing about the concept.
7.16.2009 7:11pm
cboldt (mail):
There is substantially more going on in this case, beyond the delivery and post-delivery treatment.
.
A couple things caught my eye. One being that the standard for finding abuse/neglect is preponderance, and such a finding results in an adult being put on a government list. The other was that the parents come off as litigious, and the presumed father seems half-interested in custody. But this paragraph was a real head-scratcher:
Another hearing followed on May 9, 2006, at which time V.M. told the trial judge that she saw Dr. Seltzer from 1994 to 2005 as the result of an injury she suffered at work after being forced to participate in a mock boxing match. Seltzer diagnosed her as suffering from post-traumatic stress disorder, depression and panic; but in 2005, a psychiatrist working for the State of New York Worker's Compensation Board told her that she was cured and no longer needed treatment.
7.16.2009 7:13pm
Eugene Volokh (www):
Dilan: The trouble for your argument, I think, is that the autonomy right secured by Roe and Casey is limited to pre-viability (or, in Roe, pre-third-trimester) abortions. Post-viability, the government may ban abortions and thus interfere with women's autonomy, unless the abortion is necessary to prevent some material risk to the woman's life or health.

Now perhaps you disagree with that limitation of Roe; but then, it seems to me, you should be arguing that this aspect of Roe and Casey needs to be reversed, rather than that those cases recognized a right relevant to caesarean sections at the end of the normal term of pregnancy.
7.16.2009 7:29pm
epeeist:
So a woman can choose to have an abortion, that's Constitutionally protected, but can't choose NOT to have an operation?! Makes no sense.

I could see that the mother's behaviour generally at the time together with the 12 years of psychiatric problems could raise a genuine issue about parental competence or something, but not merely because she rejected the C-section.

There are many "intelligent" women who choose to have their children at home, in a swimming pool, whatever, with a midwife and no medical/hospital support at hand. Is every woman who chooses home delivery going to have her parental rights terminated? I happen to think choosing home delivery is idiotic, but many "smart" people make that choice and that's arguably a lot riskier in many cases than rejecting a C-section.
7.16.2009 7:41pm
A.S.:
But while Casey permits the government to ban abortions in the third trimester, the question should be whether NJ actually has outlawed third trimester abortions. After all, if a parent may legally kill a viable fetus, what basis is there to set forth legal sanctions against lesser offenses against fetuses, such as a failure to assent to a c-section?
7.16.2009 7:41pm
Teh Anonymous:
Jim @ FSU: I skimmed the opinion, and VM's lawyer offered that she may have been acting erratically because of oxygen deprivation. So, sure, you can give birth without it, but in this case perhaps it was necessary.

Also it seems like the actual reason for the allegation of abuse was "woman is crazy, refuses to admit it, husband also takes this position."

The fact that two psychiatrists who attempted to provide evaluations sought and were granted restraining orders kinda makes me wonder, but untreated crazy (technical term!) ... well, I agree it could be harmful to a child, but I don't know if the severance of parental rights is justified.
7.16.2009 7:47pm
Nothing to see here:
It's just a bunch of cells. Has to be outside the womb, cleaned up, swaddled, and able to read The Iliad before it's a baby. Woman's choice, ya know. Move along, now.
7.16.2009 8:00pm
ArthurKirkland:
That child has my sympathy. A dysfunctional, obnoxious mother is a burden no child should be required to endure or overcome.

The medical professionals have my sympathy. To be repaid for necessary service with immature, disruptive, disrespectful treatment is more than a person should be required to tolerate. I hope they charged her extra, for the trouble associated with dealing with a difficult person (I do this periodically, often as a step toward terminating a client relationship, by refraining from providing any slack whatsoever).

I hope the relevant authorities monitor this parent rigorously; ample cause to do so is evident.

From a moral and practical perspective, I hope someone talks this woman into relinquishing the child or to work toward flying straight.

I don't fault, however, with the decision to refrain from taking the child from this parent consequent to her antics in the hospital.
7.16.2009 8:05pm
Dave N (mail):
From the opinion it does seem the woman is, to use a legal phrase, "Cuckoo for Cocoa Puffs" and that is the real issue.

On an unrelated note, why are some appellate courts (including this one) (or any other legal practitioner for that matter) still pretending they don't have word processors and insisting on using hard-to-read underlining instead of easy-to-read italicization for case names?
7.16.2009 8:09pm
Dilan Esper (mail) (www):
Dilan: The trouble for your argument, I think, is that the autonomy right secured by Roe and Casey is limited to pre-viability (or, in Roe, pre-third-trimester) abortions. Post-viability, the government may ban abortions and thus interfere with women's autonomy, unless the abortion is necessary to prevent some material risk to the woman's life or health.

Professor, I think you are reading Roe as if it would impose the same test on a post-viability restriction on abortion as it would on a post-viability restriction on another medical procedure.

But why would it? Roe is all about competing interests. In the case of a c-section vs. vaginal delivery, the fetus is not certain to die, so the state's interest in its protection is not as great when weighed against the mother's autonomy.

I'm actually rather surprised that you would miss this.
7.16.2009 8:17pm
John Moore (www):

But while Casey permits the government to ban abortions in the third trimester, the question should be whether NJ actually has outlawed third trimester abortions. After all, if a parent may legally kill a viable fetus, what basis is there to set forth legal sanctions against lesser offenses against fetuses, such as a failure to assent to a c-section?


This same logic can be applied to torture. If we had the legal right to kill someone, why cannot we instead capture them and torture them but not eventually kill them? Lesser harm.


The medical professionals have my sympathy. To be repaid for necessary service with immature, disruptive, disrespectful treatment is more than a person should be required to tolerate.

It's called mental illness. The woman had been diagnosed with a non-psychotic illness. Medical professionals need to (and do) deal with mentally ill persons, who are often, as a result of their illness, hard to deal with or obnoxious.
7.16.2009 8:19pm
David Redden (mail):
I wrote an article that deals with the related topic of constructively forced c-sections, where the hospital will not allow doctors to perform VBAC (vaginal birth after cesarean), but I'm too busy to polish it and shop it around. My conclusions were pretty bleak anyway.

Courts and other government functions essentially punish women for refusing to have a cesarean or, in some cases, even force women to have a cesarean. A few studies have suggested there is strong support across the political spectrum--at least among women--for allowing women to choose whether to have a c-section. There are organizations that are active on the topic, and they originate from across the political spectrum as well, they just don't talk to each other. It's a shame.
7.16.2009 8:26pm
Aaron C. de Bruyn (mail):
My wife and I just had our second child. We had a few ultrasounds at the hospital to make sure things were going well, although I'm not sure now why we did because abortion is not something either of us would consider.

Our doctor treated us horribly because we didn't want a c-section from the get-go. We finally delivered a baby girl 2 months ago. ...at home. No doctors. Just mom and dad.

She's happy, healthy, and the court can go *&#$ itself if it thinks we were endangering our child. How the hell did the human race survive for so long--giving birth to each successive generation without the help of the oh-so-important government?

aaron@darkpixel.com
7.16.2009 8:31pm
ArthurKirkland:
The opinion has conflicting information concerning the question of whether the mother is or was psychotic. After reading much of the opinion, I am more inclined to support a hair-trigger on custody. Lying repeatedly regarding matters relevant to custody, threatening and physically assaulting medical professionals, terminating treatment because litigation settled . . . these are not the elements of a successful custody argument.
7.16.2009 8:43pm
einhverfr (mail) (www):

David Redden:

Regarding constructively forced C-sections, I may be missing somethng but if the woman is willing to take the risk I see no reason the woman can't decide to check out of the hospital and opt for a risky home birth. The issue of VBAC has a lot to do with medical liability in the case of somewhat rare (though more common than non-VBAC) life-threatening complications. I can see why a doctor wouldn't want to be legally responsible for the outcome without proper procedures and equipment in place.

But that wouldn't remove the right to bodily autonomy from the picture, would it? It just prevents the doctor from being forced to perform a comparatively risky procedure in violation of standard of care, right?

How frequent would state law be able to preclude a woman from checking out of the hospital while in labor?
7.16.2009 8:45pm
Michaela:
einhverfr,

At least one court has said that it's constitutional not only to prevent a woman from checking out, but perfectly fine to drag her back to the hospital in order to prevent her from having a VBAC: http://faculty.smu.edu/tmayo/pemberton.pdf.
7.16.2009 8:53pm
jordan 6 rings (mail) (www):
Your article is very interesting, I have introduced a lot of friends look at this article, the content of the articles there will be a lot of attractive people to appreciate, I have to thank you such an article.
7.16.2009 9:45pm
einhverfr (mail) (www):
Michaela:

Was this not appealed? Otherwise, one good reason not to move to Florida?
7.16.2009 9:45pm
einhverfr (mail) (www):
A note on how the district court erred in Pemberton. Reading the opinion, I can only apply the term "Activist" to its differentiation from In Re AC.

In In Re AC, the court ruled in a case which would seem to be easy on the face: A woman who was dying from cancer and might not survive the pregnancy anyway was ordered to submit to a C-section. The infant did not survive. AC died a few hours after. It would seem on the surface that the life of a dying woman would be worth less than the life of the fetus in late pregnancy, or at least that the state interest in addressing consent issues would be clearly on the side of the fetus if any sort of balancing was permitted.

However, in Pemberton, the court ruled that a relatively common case-- far more common than In Re AC, and which posed far less risk for the fetus and mother (few risks are more than those of a dying mother) was truly extraordinary in a way that In Re AC was not, while in reality In Re AC was truly extraordinary in a way that Pemberton was not. IMO, the only way a judge could reach that case would be seek to read into In Re AC whatever he needed to get the result he wanted. While In Re AC's handling was not technically a fatal or reversible error on the part of the judge due to the fact that In Re AC wasn't compelling to that court, but none the less, the judge did all sorts of contortions to avoid a comparison to a decision he didn't like. This is why I am surprised there doesn't seem to be an appellate ruling.
7.16.2009 9:54pm
Jim Rhoads (mail):
The propriety of the trial court's ruling on permanent severance of custody was separately appealed and was not before this court.

This court essentially found that the mom was trifling with the system by among other things lying in court about her whole hospital experience, and her past psychiatric treatment, and that with her erratic behavior was enough to declare her "unfit". It reversed the trial court's finding that the dad was unfit.

The concurrence held squarely that the mom's refusal of the c section should not have been considered as evidence of unfitness by the trial court. The rest of the court said all of the evidence of unfitness even without considering her refusal of the c section was sufficient to support the trial court's finding.
7.16.2009 9:55pm
http://volokh.com/?exclude=davidb :

She's happy, healthy, and the court can go *&#$ itself if it thinks we were endangering our child. How the hell did the human race survive for so long--giving birth to each successive generation without the help of the oh-so-important government?

The legal right to have birth at home, w/o medical personnel or midwives -- and FWIW, if I were a judge I would agree that your wife has such a right -- is a matter distinct from your question.

The human race did indeed survive for a long time without government (and, more to the point, without competent doctors or midwives), but it did so with absolutely appalling rates of mortality during childbirth. I'm no doctor, but I think you took some fairly significant risks here with the health of your daughter. Again, I think you and your wife have, or ought to have, the legal right to do so (absent advance evidence of special dangers to your unborn child), but I wouldn't go around fooling yourself about it with glib comments about how long the human race has survived.

I do find your behavior to be entirely appalling from a moral standpoint, and selfish to the brink of insanity, but there's no reason you should care about that.
7.16.2009 10:01pm
Eugene Volokh (www):
Dilan: I don't think this quite works for you. Roe held that the interest in preventing fetal death is compelling enough to trump the mother's autonomy rights after six months of pregnancy. It's hard to see how this is limited only to the interest in preventing certain death and not the interest in preventing a high or even quite substantial risk of death (especially when the fetus isn't just at six months but just shy of birth). Certainly in other strict scrutiny areas -- including ones where strict scrutiny is taken seriously -- lesser interests than that have generally been accepted as sufficient to trump the right.

The decision about vaginal vs. caesarean delivery also strikes me as more like most medical procedures than the decision about whether to have an abortion (which involves choices about whether to be a parent, and not just what procedure to use). But in any event, it seems to me that the recognition of a compelling state interest in protecting post-viability fetuses includes the interest in preventing high risk of death to them and not just certain death to them.
7.16.2009 10:32pm
Dilan Esper (mail) (www):
Dilan: I don't think this quite works for you. Roe held that the interest in preventing fetal death is compelling enough to trump the mother's autonomy rights after six months of pregnancy. It's hard to see how this is limited only to the interest in preventing certain death and not the interest in preventing a high or even quite substantial risk of death (especially when the fetus isn't just at six months but just shy of birth).

Why is that hard to see? Roe weighed the interest in fetal life against the fundamental right of a woman and her doctor to control medical decisions. IN THE CONTEXT OF A PROCEDURE THAT WAS SURE TO KILL THE FETUS, the interest of fetal life was held to outweigh the interest in personal autonomy that the Court recognized in Roe, such that CERTAIN restrictions on abortion were constitutional.

It's worth noting, however, that this judgment didn't extend to all restrictions on abortion-- specifically, a health exception was required. So it isn't that Roe recognized no rights for women post-viability-- even post-viability, not all abortion restrictions were justified by the interest in fetal life.

Now lets take another procedure. Suppose that obtaining an amnio post-viability carries a small risk of miscarriage. As a result, pro-life groups get a law passed prohibiting post-viability amnios even where necessary to determine a fetal deformity, with the only exception being where an amnio is necessary for the health of the mother. Now, are you going to say that this law is constitutional because since Roe recognized that certain termination of a viable fetus justifies state prohibition (so long as there is a health exception), this also means that a very speculative chance of termination also justifies a prohibition? That's a horrible misreading of Roe.

This case falls somewhere in the middle. Less-than-certain but more-than speculative chance of fetal death of a viable fetus doesn't, simply on the basis of Roe's trimester system, automatically mean that state prohibitions that override the medical judgment of a doctor and the judgment of the mother are constitutional. A court properly applying Roe would balance the interests.
7.16.2009 10:47pm
Edward A. Hoffman (mail):
einhverfr wrote:
I can't agree with this decision. Although In Re AC isn't binding on the second circuit, I hope that this will eventually be appealed to federal court on Constitutional grounds.
State court decisions in civil cases can never be appealed to the federal courts. Even if they could, In re A.C. was decided by the District of Columbia Court of Appeals; D.C. is not in the Second Circuit. For that matter, neither is New Jersey -- where this case was decided.

(Fwiw, after the state's highest court has either decided a case or declined to do so, the U.S. Supreme Court can grant certiorari and review federal issues raised by the decision. Technically, this isn't an appeal. Less technically, einhverfr's reference to an appeal to a federal court suggests that he had a federal district or circuit court in mind rather than the Supreme Court.)
7.16.2009 11:21pm
Bob from Ohio (mail):

She ordered the attending obstetrician to leave the room, did not allow the obstetrician to perform an ultrasound examination, told a nurse that "no one [was] going to touch [her] baby," refused to continuously wear the face mask that provided her with oxygen and would not remain still in order to allow for fetal heart monitoring and the administering of an epidural.



At the fact-finding hearing, the trial judge found that J.M.G. was an abused and neglected child due in part to her parents' failure to cooperate with medical personnel at the time of her birth.


I find this incredible. She was the patient, the doctors can recommend things but a patient is in control.

These were merely diagnostic procedures after all.

So, for the mother's crime of not meekly consenting to diagnostic procedures, the child is sentenced to the hell of the foster care system.
7.16.2009 11:59pm
Bob from Ohio (mail):

She ordered the attending obstetrician to leave the room, did not allow the obstetrician to perform an ultrasound examination, told a nurse that "no one [was] going to touch [her] baby," refused to continuously wear the face mask that provided her with oxygen and would not remain still in order to allow for fetal heart monitoring and the administering of an epidural.



At the fact-finding hearing, the trial judge found that J.M.G. was an abused and neglected child due in part to her parents' failure to cooperate with medical personnel at the time of her birth.


I find this incredible. She was the patient, the doctors can recommend things but a patient is in control.

These were merely diagnostic procedures after all.

So, for the mother's crime of not meekly consenting to diagnostic procedures, the child is sentenced to the hell of the foster care system.
7.17.2009 12:00am
David Hardy (mail) (www):
"I have read some on the subject of c-sections and their (poor) medical applications. Most of what I read said the impatience of a doctor was the main reason for most c-sections, followed by designer birth moms. Additionally with epidurals. The current methods of child birth include the application of drugs, which leads to raised fetal heart rhythms, leading to more drugs, and finally a c-section. Many mothers prefer, matching the latest research, that non medicated natural child birth is better for the fetus and mother. What's interesting is that the doctors wanted to cut her open to save the fetus, but it turns out they were wrong, the fetus was fine."

They were saying the same when my first was born in 1985. Docs were then very reluctant to recommend C section. I finally interrupted one who was trying to explain why to say that if he was getting around to why he had to do a C section, he had the consent of my wife and I, right now, so just go with it.

And some nurses were claiming that birth without epidurals or other painkillers was superior then, too, near a quarter of a century ago. When I asked if, a few hours after birth, they could tell the difference between a baby born with or without, they admitted no, they could not. At that point I wrote them off.

There may be docs a quarter century later who are doing C sections to make their golf appointment, I dunno, but there are also situations where you either get the C section, quick, or you lose the child and perhaps the mother. Then a doc and an OR are very handy things to have nearby.
7.17.2009 12:08am
ReaderY:
If the child was delivered "without incident", it would appear the initial decision that a cesarian was required was ultimately wrong, even if it was the best prognosis medically available at the time. The mother's course of action didn't cause actual harm. I think this is relevant.

Understanding that neglect can involve mere risk of harm rather than actual harm, and understanding that it might have been medically appropriate to intervene in the moment to attain a Cesearian if the risk was deemed severe enough, given that this was not done and the state is merely reacting after the fact, it seems to me that there are cases where it would be wiser for the state not to intervene unless harm is actually imminent and not to react unless it actually occured. Particularly when no actual harm arises, there is a diminished rationale for using punishment as a method for getting parents to do what the state wants. Any decent society has to rely on parental and other social instincts as the first line of human motivation and rely on punishments only as a distant last resort. Maintaining this priority imposes limits on what society, as a practical matter, can expect to be able to coerce.
7.17.2009 12:33am
californiamom:
I may be the only poster here who has had a C-section and it really is no big deal. A C-section is a minimal intrusion compared to the harm that could have happened to the fetus in distress. The baby could have been brain damaged or died.

Any mother who is told that the baby is in distress and rejects a C-section isn't thinking of the welfare of the child at all.
7.17.2009 12:33am
Grover_Cleveland:

Any mother who is told that the baby is in distress and rejects a C-section isn't thinking of the welfare of the child at all.


Well, in this case the mother didn't have a C-section and the baby was fine. So maybe she was thinking of the welfare of the child, while the doctors were thinking of the extra $$$ they'd make from a Caesarean.
7.17.2009 1:18am
Public_Defender (mail):
If doctors can't or don't want to deal with mentally ill people, they need to find another profession. Yes, as I've learned in my job, mentally ill people can take up a lot of extra time, and sometimes they are "obnoxious," but they need help, and they deserve professional treatment. One of the joys of my job is helping a mentally ill person get their life back on track.

I can't judge the performance of the medical staff in this case, but I hope the hospital does a careful internal review. Was the cesarean really necessary? Could the staff have better explained the options to their patient throughout the say? Did the staff avail itself of the help of their mental health colleagues?

This case seems like a very good training device for the hospital staff.


Any mother who is told that the baby is in distress and rejects a C-section isn't thinking of the welfare of the child at all.

And how did you feel three days after the procedure?

We switched doctors in the middle of a pregnancy. The first doctor said we had to accept a lot of invasive procedures. The second said that the first doctor was following local customs, but that the local customs were not part any standard of care written anywhere. The were just stuff local doctors wanted to do.

Plus, why do the doctors have to get consent for surgery if you can be legally required to undergo it? Courts need to be very reluctant before treating medical advice as government-backed medical orders.

On an unrelated note, why are some appellate courts (including this one) (or any other legal practitioner for that matter) still pretending they don't have word processors and insisting on using hard-to-read underlining instead of easy-to-read italicization for case names?

When reading briefs or opinions, I find it easier to spot underlined case names. I think they pop better from the page. That said, the use of courier font is unforgivable.
7.17.2009 6:07am
Public_Defender (mail):
On related note, sometimes the problem is that doctors and hospitals want to do things their way based on personal preference, not medical necessity, even if that defies the patient's wishes.

When we looked at maternity hospitals, the difference in cultures was stark. One was very open to the idea of natural childbirth backed up with medical intervention if needed. At the other, the staff was culturally against natural child birth. They would have pressed for more vaginal exams, more fetal monitoring, more medications, more cesareans.

When we told management at the second hospital about our impressions, they insisted that the hospital fully supported natural birthing. So we took the tour again, and got the same reaction from different staff. Apparently, the staff wasn't following management's directives. It's hard to change a culture from above.

So we went to the first hospital, which turned out to be excellent. We ended up needing more interventions than we would have liked, but at least we could trust the judgment staff and our doctor. If we had been at the second hospital, we would not have been able to know if they we really needed the interventions, or if the doctors and nurses were just pushing them based on their local custom.

If we had been at that second hospital, we would have had to ask for a personal and detailed conversation with the doctor at each step so that she could persuade us that she was not just imposing her personal preferences on us. Bad situation.

Doctors need to earn the trust of their patients. I can't imagine how hard that would be for a paranoid schizophrenic woman to negotiate the many difficult maternity decisions that need to be made.
7.17.2009 7:54am
Stryker:
Is there any case for medical malprctice?
The MD said that a C-section was neccessary, but turned out wrong. Following a C-section, one increases the liklihood of difficulties with additional preganancies. Was not the MD effectively trying to implement a proceedure that could eventually prevent additional pregnancies (I call that sterilzation) for the woman? 1 The effective sterilization is taken as step further by the fact that someone (the MD?) called dyfs and got the child removed.

What about "first do no harm?"

1 June 2006 Obstetrics and Gynecology
7.17.2009 7:56am
Borris (mail):

Courts need to be very reluctant before treating medical advice as government-backed medical orders.

Under ObamaCare they will be government-backed medical orders.
And they'll only be one medical system you can afford to go to, as private care will only be for the ultra-rich.
7.17.2009 8:06am
Public_Defender (mail):
I have some sympathy for the doctors. We criminal defense lawyers sometimes have obstinate clients, too. But often, the clients make self-destructive choices because the lawyer has failed to take a few basic steps to earn the client's trust, like visiting the client in jail, investigating the client's crazy theory of innocence (which, every once in awhile, turns out to be true), or taking the client's collect calls from jail.
7.17.2009 8:17am
Alan P (mail):

It's called mental illness. The woman had been diagnosed with a non-psychotic illness. Medical professionals need to (and do) deal with mentally ill persons, who are often, as a result of their illness, hard to deal with or obnoxious.


If you actually read the full opinion, you would see that among the diagnoses, the last by a Court appointed psychiatrist, was a psychotic illness, paranoid schizophrenia.

The reason there was a Court appointed psychiatrist is that the mother refused to see a psychiatrist without agreeing that she would not sue whoever she say. A psychiatrist was deemed necessary because her long time treating psychiatrist had advised an examining psychiatrist at the hospital that the mother was exhibiting and had exhibited psychotic behaviors.

The essence of the concurrence was that the entire record provided ample support for the trial Court in the exercise if its discretion was correct in the ultimate conclusion, it disagreed that the one factor or refusing a C Section should have been considered at all.
7.17.2009 9:24am
Losantiville:
Did seem a bit weak for termination of parental rights since the child was not (on the record) harmed.

The mother's problem was going to a shrink (presumably to prove damages in workplace litigation). Those notes hurt.

Having a crazy mother shouldn't be enough to yank kids. After all, the kid could write a NYT bestseller and get a movie deal later. Big bucks.
7.17.2009 9:28am
Seamus (mail):

I can't judge the performance of the medical staff in this case, but I hope the hospital does a careful internal review. Was the cesarean really necessary?



The answer may not have been clear before the birth, but now that we have the benefit of knowing that the child was born vaginally without any problem, it should be pretty obvious that it wasn't necessary.
7.17.2009 9:45am
Seamus (mail):
So maybe she was thinking of the welfare of the child, while the doctors were thinking of the extra $$$ they'd make from a Caesarean.

Give them the benefit of the doubt. They were probably just covering their asses in case of malpractice suit. If there's a 1% chance of a bad outcome if you don't do a caesarian, then ordering a caesarian eliminates that small but greater-than-zero probability that something bad will happened and you'll be blamed for not ordering a caesarian. On the other hand, if you're a doctor and you perform a caesarian that wasn't necessary, there's really no downside from your point of view.
7.17.2009 9:50am
Malvolio:
The answer may not have been clear before the birth, but now that we have the benefit of knowing that the child was born vaginally without any problem, it should be pretty obvious that it wasn't necessary.
That's a pretty strict definition of "necessary" - a procedure without which something bad is absolutely guaranteed to happen. It's hard to imagine when that definition could actually be applied.
7.17.2009 10:24am
californiamom:
As a paranoid schizophrenic, I doubt she was thinking of the welfare of the child in refusing the C-section. She may have been thinking that the doctor was a flying monkey and the baby a space alien. The baby just got lucky and didn't die or suffer brain damage.
7.17.2009 10:59am
JM Hanes:
The number of unnecessary C-sections being performed has sky rocketed since my children were born, and they have become so routine that doctors are are not even trained to deliver breech births any more. Cesareans may be easy for the doctor, but the very fact that vaginal deliveries are dangerous thereafter confirms that such surgeries have serious long term consequences. It means the mother will have to have all her future children by C-section too, regardless of whether it is necessary for the health of her infant, and she will be denied the indescribable experience of ever giving birth.

As often as not, and quite possibly more often than not, women are pressured to have Cesareans because of the liabilities which attach to vaginal births should complications arise. I wouldn't be the least bit surprised if it was the mother's refusal to submit to an ultrasound in precisely that context which generated the recommendation here, and not any definitive medical exigency at all. The mother's successful delivery does nothing to dispel that notion.

Epidurals can be problematic too. When I gave birth, they were administered at the discretion of the mother for the amelioration of pain, not for the convenience of doctors, and nurses. They require inserting a hypodermic needle directly into a woman's spine, and if she does not remain completely motionless during what is not a painless procedure, it can, in fact, be hazardous.

Performed correctly, the injection -- of a powerful drug -- numbs the entire lower half of the mother's body. It not only slows contractions, and thus the duration of labor, but also frequently leaves the mother unable to feel the actual birth of her own baby. If she's lucky, she won't have to suffer through a debilitating headache, on top of everything else, in the recovery room. There are substantive reasons why many women categorically refuse to be anesthetized, and why compelled compliance might elicit a justifiably outraged response.

I wouldn't hazard an opinion on the mother's fitness, but in light of V.M.'s successful delivery -- in the normal old fashioned way -- the idea that her rejection of invasive surgery would elicit an investigation, let alone a formal complaint from Family Services is astonishing. Who initiated that call? This sorry business gives "doctor's orders" a whole new, and now apparently legally binding, meaning.


Arthur Kirkland:

"To be repaid for necessary service with immature, disruptive, disrespectful treatment is more than a person should be required to tolerate."

You will be surprised to learn, I'm sure, that women in labor are quite likely to disrespect their husbands along with everyone else. If you had ever "tolerated" 18 hours of violent contractions, you would not be comparing a woman in the throes of childbirth to a feckless client.

Medical personnel who can't handle erratic, combative women in delivery rooms should be looking for a different job. Oddly enough, I find myself thinking about teachers who advise parents to medicate their rowdy children -- as the remedy of choice for enforcing classroom discipline.
7.17.2009 11:20am
Seamus (mail):
That's a pretty strict definition of "necessary" - a procedure without which something bad is absolutely guaranteed to happen.


It's also a pretty ordinary definition. See Merriam-Webster's Collegiate Dictionary, 11th edition:


1a: of an inevitabgle nature: INESCAPABLE
b (1): logically unavoidable (2): that cannot be denied without contradiction
c: determined or produced by the previouis cndition of things
d: compulsory

2: absolutely needed: REQUIRED.



A different definition of the term "necessary" might arguably be appropriate if we're looking at the situation prospectively. But we're not in that position, are we. In hindsight, we can pretty confidently say that a c-section wasn't necessary.
7.17.2009 11:28am
Cloned Test-tube baby (mail):
How the hell did the human race survive for so long--giving birth to each successive generation without the help of the oh-so-important government?


Before "modern" medicine a tremendous amount of women and babies died because of a lack of medical care(I think over 50%). Having a baby at home you've got a 9/10 times a midwife that has no clue how to perform even simple medical procedures to save the babies life or the mother's life, except to call 911. Home births are not a good thing and things do go wrong way more than most home birthing websites will tell you.

There are some really good birthing hospitals out there that aren't pushy about unneeded procedures. The reason is you end up paying 25% more upfront because they rent out valuable space and are "specialty wings" of the hospital.
7.17.2009 12:30pm
einhverfr (mail) (www):
Cloned Test Tube Baby:

Maternal mortality rates prior to modern medicine were about 1 deaths per 100 live births. I don't think perinatal mortality rate was as high as you think either.
7.17.2009 12:33pm
einhverfr (mail) (www):
I think the opinion of the court was that they could leave the C-section refusal question open, while the concurrence ruled that the refusal was not grounds for neglect.
7.17.2009 12:34pm
GatoRat:
It means the mother will have to have all her future children by C-section too

Not true any more. My second was delivered by C-Section. Her three younger siblings were delivered vaginally (the last one at home using a midwife.)

My sister had a similar situation.
7.17.2009 12:49pm
Linda F (mail) (www):
My daughter was told that she would have to have a C-section, if she didn't deliver soon. The doula (kind of a birth coach) suggested turning her from one side to another, to get the baby in a better position - it worked. The doctor seemed kind of disgusted about not following his advice.

This is just one more of a long line of stories, from the last 40 years or so, since women started bucking the medical system about natural births. Doctors like the quick slash-n-go procedure. Takes almost no time, and the mother can't talk back, and the fathers can be kicked out. A doctor's dream.
7.17.2009 1:02pm
mbg:
not much to add, other than how can refusing an epidural have anything to do with the baby? epidurals are for mom, no? or was the idea that they wanted her to have it in case they "had to" cut her open? if the latter, then refusing the epidural should probably be treated the same as refusing the c-section. ie. protected acc. to the concurrence. curious how he sees one as ok and one not.
7.17.2009 3:27pm
Katt (mail):
while i may not have an extensive law background, i do have some information I'd like to share with you regarding The United States' maternal/infant mortality rates.

We are ranked about even with Cuba!
World Map and Chart

We have not improved in decades!

It is safer for a woman to give birth with midwife-based maternal care, see Scandinavia, then the US.

I don't know if this ruling starts a presedent or not, it scares the %#@^ out of me. If the decision to take her child was not based on her refusal of procedures (her RIGHT) then it shouldn't have been brought up in courts at all.
7.17.2009 4:41pm
theobromophile (www):
The first paragraph of the concurring opinion sums up the entire problem with this: the baby was delivered vaginally, without a problem, despite the predictions of the doctors. The only example of the mother's "combative and erratic" behaviour was not consenting to a C-section - a C-section which, obviously, was not necessary anyway.

Even as a pro-lifer, I detest this type of legal involvement in childbirth. Women have been giving birth, vaginally, for millions of years. (Granted, it has not always been the safest of procedures for mother and baby, but it's how most every human who has walked this planet has come into the world.) I just hate the idea that vaginal birth - as per above, one of the most natural things in the world - is somehow neglectful of one's child.

Unless a woman is deliberately hurting her child, or neglecting it in a way that gives rise to harm (such as by refusing to feed it once born), the government really has no place in all of this.

That all said, the real reason for a lot of the involvement of the government with obstetrics is the plaintiff's tort bar. Doctors have a huge incentive to ensure that a birth does not go wrong (as dead and disabled baby cases are very expensive), and, if something does go wrong, that they cannot be held responsible in a court room. One almost can understand why they would abuse their power over patients in order to limit their exposure to professional malpractise.
7.17.2009 4:59pm
einhverfr (mail) (www):
Linda F:

My first child was born in Jakarta, Indonesia. One of our criteria in selecting an OB was references about when he did NOT push for C-sections. In Indonesia it is common to prefer C-sections since they are more profitable.

Interestingly, after familiarizing myself with standard of care in the US, I found it interesting that the doctor in that case did not recommend a C-section even when it would have been routinely recommended in the US (the time between when my wife's water broke and when Will was born was about 30 hours-- doctors in the US really prefer to keep it down below 24 due to infection risks).

Overall, happy with the experience, though the pediatrician in charge of our son's care in the hospital was less than stellar. They recommended longer hospitalizations for Will under conditions when he would have been released in the US.
7.17.2009 8:03pm
David Hardy (mail) (www):
"Epidurals can be problematic too. When I gave birth, they were administered at the discretion of the mother for the amelioration of pain, not for the convenience of doctors, and nurses. They require inserting a hypodermic needle directly into a woman's spine, and if she does not remain completely motionless during what is not a painless procedure, it can, in fact, be hazardous.

Performed correctly, the injection -- of a powerful drug -- numbs the entire lower half of the mother's body. It not only slows contractions, and thus the duration of labor, but also frequently leaves the mother unable to feel the actual birth of her own baby. If she's lucky, she won't have to suffer through a debilitating headache, on top of everything else, in the recovery room. There are substantive reasons why many women categorically refuse to be anesthetized, and why compelled compliance might elicit a justifiably outraged response."

Having had an epidural recently (given my gender, not for delivery) ... it was quite nice. I should have had it for my second surgery, and had it continued for 48 hours, which would have spared me two days of misery, but the surgeon suggested otherwise and I erred by listening to that rather than to the anesthesiologist.

I was told there were two meds for it. One had faster recovery but risked a bad headache, other slower but no risk. I chose the first and had no problem, but if I did it over would go with the second. I wasn't going to be doing a lot of walking in the hours after the procedure, anyway.

As I mentioned, with my late wife, we were quite satisfied that a C-section was the ONLY way to go. My swallowing a bowling ball might be natural, however I don't think I'm going to manage it.

Bit of humor: they had us in cubicles to wait until ready to deliver. I gather one person had decided to try it without anesthesia; the screams did become an annoyance. In the one next to us all went quietly until there was a loud BONK, just like a 2x4 dropped onto concrete, and nurses went rushing in. I later asked one what the sound was.

The father hadn't heeded instructions -- if you feel woozy while watching, drop to your knees at once. He passed out while standing, and the bonk was his cranium bouncing off the floor.
7.18.2009 1:11am
Dilan Esper (mail) (www):
I just hate the idea that vaginal birth - as per above, one of the most natural things in the world - is somehow neglectful of one's child.

Theo, you are right that this is a gross interference in the doctor-patient relationship (of course, the extreme and oppressive restrictions on abortion you favor are as well, but that's another kettle of fish), but your argument can't rest on what's "natural".

Lots of things that are "natural" may very well be bad for a child. For instance, it's not a very good idea for an HIV-positive mother to breastfeed her child, even though it is "natural".

And my understanding is, despite the over-incidence of c-sections, there can be situations where a vaginal birth would endanger the fetus and a c-section is medically indicated.

The thing is, in the end, it is a decision for a woman to make in consultation with her doctor. It isn't the government's role to interpose itself in the middle of that relationship and dictate the proper medical care for a pregnant woman.

Further, people have the right to refuse medical treatment. That's a very important right that protects a person's right not to be strung up with tubes at the end of his or her life. And there's no legal principle that should impose a sanction on a woman who refuses the medical treatment of a c-section even if she is advised to do it.

In the end, the reality is that when that fetus is inside the womb, women, in consultation with their doctors, need substantial deference with respect to their decisions, because otherwise this sort of thing is the natural result-- government telling women how they can and can't give birth, not simply government telling them they can't terminate a pregnancy.

The fact that you have the right instincts on this one is encouraging-- but you should understand that this case is a pretty clear demonstration of the absolutely erroneous nature of the pro-life position (meaning not moral opposition to abortion, but the belief that the legal system should ban it). Abortion restrictions start the slippery slope that leads to complete government regulation of a woman's decisions while she is pregnant. And that's a thought that should be terrifying to traditionalist, anti-feminist, pro-life women like yourself.
7.18.2009 1:15am
NJ Mom:
I have been on both sides of this situation. I am a social worker who has had to call child services to evaulate my claim of abuse or neglect. Also, 3 years ago, I was in the EXACT situation V.M. was in...docs told me that because of "nonreassuring fetal trace" I had to have a c-section or else risk all kinds of problems. My gut at the time was that everything was ok and that I didn't need the c-section. But I consented and, of course, my child and I were fine. When I eventually got my bearings together after my child's birth and did a little research, I found some important info. NJ has the HIGHEST rates of c-section in the country. NJ has the HIGHEST malpractice insurance rates for OB-GYNs. The fetal monitoring that was done that was the prime indicator for performing c-section has a 50% false positive rate!!! I will never know if, in fact, everything would have been ok had I refused consent for the c-section. But I completely empathize with VM. I probably could have delivered my son vaginally and everything would have been fine.

Enough is enough with regard to the medicalization of childbirth!
7.18.2009 8:48am
Soronel Haetir (mail):
Katt,

One thing to keep in mind, countries use vastly different measures of what counts as a live birth. The US uses one of the laxist standards possible, if it takes a breath it's a live birth, if the heart is still beating after the umbilical is cut, it's a live birth. Many countries require certain size/age requirements to be met before a birth is counted.

Combined with the extraordinary efforts made at saving premature births in the US it should not be surprising that our infant mortality numbers don't look very good.
7.18.2009 11:08am
theobromophile (www):
For Heaven's sake, Dilan, give it a rest and grow up. We disagree on abortion. Newsflash: you disagree with the majority of Americans on this subject. I trust that you do not twist every single conversation with them into a chance to snipe at them for caring about unborn life. Grant me - and every other commenter here, who shares this space - the same respect.

On the subject of respect, let me inform you, my dear misogynist, that your condescending attitude about my "encouraging" positions will not be tolerated. I - nor any woman - am not your property and do not need approval of some over-educated, under-endowed man in order to validate the products of my mind nor justify my desire to take up space on this earth.

/humourless feminist bitch-slap
7.18.2009 7:40pm
Dilan Esper (mail) (www):
Theo, you are not a feminist. You are a pro-life traditionalist woman who wants to outlaw a procedure that is necessary for women who make different choices than you do to live their lives.

But worse than that, you are a liar. You lie about public support for abortion rights (the public's not pro-life), you lie about your motivations (the reason you support reproductive rights with respect to vaginal births but not abortion is that the choice to do a risky vaginal birth may harm the child but doesn't allow a woman any sexual freedom) and you are a liar about your commitment to feminism.

Worst of all, you are a liar about me. My position is the feminist position, which is why EVERY SINGLE SERIOUS FEMINIST ORGANIZATION IS FIRMLY PRO-CHOICE.

Theo, you have every right to think that abortion is morally wrong. But the fact is, making abortion illegal puts the government in the business of telling women when they have to do "unnatural" things to protect their fetuses. In other words, the very position you advocate leads to the result you abhor. And that's because, as an anti-feminist, you are more concerned with making sure women can't have full sexual freedom than you are with allowing women to make their own reproductive choices.

It isn't that we disagree, it's that you hold a noxious and evil position that would, if enacted into law, destroy the lives of many American women. And that needs to be opposed at every opportunity, because your ideas are not only wrong; they are dangerous.
7.18.2009 9:14pm
John Moore (www):

My position is the feminist position, which is why EVERY SINGLE SERIOUS FEMINIST ORGANIZATION IS FIRMLY PRO-CHOICE.

Which, of course, is tautological, since the very position of being pro-life removes a feminist organization from your definition of "serious."
7.18.2009 9:18pm
Dana:
It’s worth noting that the hospital where VM delivered has nearly a 50% cesarean rate. The World Health Organization did an extensive study and concluded that a cesarean rate above 10-15% is putting women and babies at risk.

VM was asked to sign a blanket consent form for cesarean. She signed agreeing to an epidural, episiotomy, fetal monitoring, etc. She just didn’t want the surgery. She didn’t need the surgery. The hospital got mad that she wouldn’t sign “just in case.” Uncooperative behavior??? She was in LABOR! She was not being tickled by contractions. The judges in this case actually debated (yes, I was there) what appropriate behavior for a woman in labor is.

She refused fetal scalp stimulation where the doctor would to a vaginal exam and scratch the baby's head to look for a reaction. She had fetal monitors on. They were concerned that the baby was going into distress at one point but they did nothing else like reposition her to try to bring the heartrate normal. Fluctuations in fetal heartrate are normal during labor. This baby was delivered without incident and obviously okay.


I hope the relevant authorities monitor this parent rigorously; ample cause to do so is evident.

From a moral and practical perspective, I hope someone talks this woman into relinquishing the child or to work toward flying straight.



Mother has never had custody so they cannot make any judgment on her ability to parent yet.


The human race did indeed survive for a long time without government (and, more to the point, without competent doctors or midwives), but it did so with absolutely appalling rates of mortality during childbirth. I'm no doctor, but I think you took some fairly significant risks here with the health of your daughter.



The maternal and infant mortality rate when UP when birth entered the hospital early in the 20th century. Women and babies were dying of infection because doctors didn’t know to wash their hands. Antibiotics brought the rates down but homebirth with 1 midwife and 1 mom (as opposed to hospitals with many doctor and many women) were safer regarding death rates.



I may be the only poster here who has had a C-section and it really is no big deal. A C-section is a minimal intrusion compared to the harm that could have happened to the fetus in distress. The baby could have been brain damaged or died.



I’ve had a c-section as well and it was a pretty big deal. It was major surgery and unnecessary in my case and in VM’s case. My baby was cut by the surgeon and the hospital had the nerve to tell me the 2 straight 1 inch cuts on her head “must have happened in utero.” No wonder she screamed for hours after she was born. VM's baby was fine. Obviously, no c-section was needed.
7.18.2009 9:39pm
Concerned Homebirth Mom:
I may be the only poster here who has had a C-section and it really is no big deal. A C-section is a minimal intrusion compared to the harm that could have happened to the fetus in distress. The baby could have been brain damaged or died.

Any mother who is told that the baby is in distress and rejects a C-section isn't thinking of the welfare of the child at all.

@Californiamom:

C-Sections are a VERY BIG deal and are major abdominal surgery. 90% of the so-called "emergency" c-sections performed in this country are due to unnecessary medical interventions performed while in the hospital. Epidurals, continuos fetal monitoring, breaking the amniotic sac, pitocin, forcing the mother to remain lying in bed on her back hooked up to machines, all significantly raise the probability of "needing" a c-section.

Perhaps it was "no big deal" to you, nor should you be made to feel stupid or naive for having consented to one. However, neither should this mother have her child taken away because she didn't. Maybe she is the one who is actually well-informed, not the other way around.
7.18.2009 10:45pm
theobromophile (www):
Thanks, John Moore.

Dilan: we've been over this. Your character attacks keep shifting, from man, to anti-science, to religious zealot, to "losers," to, now, a liar.

They are nothing save unsubstantiated character attacks. As I've pointed out, repeatedly, and as you've failed to ever contradict, the majority of the public would support a very strict ban on abortion.

Caring about babies is not noxious, Dilan; it just makes me a human who understands that (especially in our society, with so many options for contraceptives) killing human beings is not a legitimate way to go about achieving one's life goals.

Your hatred of pro-lifers is not my problem. Your hatred of the unborn, however, is a concern of every single individual who has to live in a society in which human life is cheapened and one class of human beings are put at the mercy of another.

I'm secure enough in myself, Dilan, to know that I do not need to kill my child in order to get what I want out of life. (To attack the real issue as to why you are so fervently pro-choice: I'm not going to kill my unborn child because some prat can't be in a relationship without getting laid.) I'm not a weakling or a perpetual victim or anything else in need of special dispensation to kill. It's just pathetic to suggest that women need to end the life of their unborn children - because either women are weaklings, or our society is fundamentally hostile to the realities of the female body.
7.18.2009 10:47pm
theobromophile (www):
But the fact is, making abortion illegal puts the government in the business of telling women when they have to do "unnatural" things to protect their fetuses.

Yes, because getting one's foetus suctioned out of one's uterus, and having it shredded to death in the process, is the very epitome of "natural."

Likewise, pregnancy - the reason for every single human's existence in this world - is just a perversion of nature.

/deadpan

WTF, dude? Do you forget to take your meds?
7.18.2009 11:01pm
Soronel Haetir (mail):

Likewise, pregnancy - the reason for every single human's existence in this world - is just a perversion of nature.


We're working on that. Give it a couple decades and pregnancy will no longer be needed.
7.19.2009 12:31am
PurpleKoolaid (mail):
I'm a first time reader of this blog. I find this topic very interesting and have read all the comments (I hardly ever do that).

Question for you lawyer types:

If the psychiatrists asked the mom to sign an agreement NOT to sue, then why couldn't the ob ask the mom to sign an agreement NOT to sue if she had her vaginal delivery???

Also, I've been involved in the birth community for many yeras now. This is the deal on c/s. They suck. It is major surgery w/ a many side effects for MOM and BABY. Bottom line: babies need to come through the birth canal too. When I first got involved w/ the birth community, I felt sorry for the docs. I thought, "IF there would only be tort reform, c/s would go down". Nah. I could write a book on what I've seen these docs do. They induce moms left and right (for no medical reasons), then they break their water, which increases their odds for prolapsed cord. Then after the prolapsed cord, they have to do an emergency c/s and say, "Oh mom, we saved your baby."
7.19.2009 12:39am
David Hardy (mail) (www):
"The maternal and infant mortality rate when UP when birth entered the hospital early in the 20th century. Women and babies were dying of infection because doctors didn’t know to wash their hands. Antibiotics brought the rates down but homebirth with 1 midwife and 1 mom (as opposed to hospitals with many doctor and many women) were safer regarding death rates. "

Timing a bit off. Failure to wash and high maternal (not infant) mortality were characteristic of the mid 19th century, not early 20th. Ignaz Semmelweis first suggested the connection between doctor's failure to wash and maternal disease mortality in the late 1840s (and was disregarded).

Pasteur came up with the germ theory of disease in the 1860s, Lister with antisepsis in the 1870s. I don't doubt infection mortality remained in the early 1900s (it killed one of my grandmothers) but it wasn't because docs were running around without washing.
7.19.2009 1:07am
Dilan Esper (mail) (www):
Which, of course, is tautological, since the very position of being pro-life removes a feminist organization from your definition of "serious."

No it isn't, John. If Feminists for Life or Concerned Women for America actually did something about contraceptive rights, equal pay, sexual harassment, sex education, the availability of divorce, sexual freedom, and other issues of importance to liberated women, they could call themselves serious feminist organizations and still be pro-life.

But they don't, because they are just front groups for extremist right-wing causes that are fudnamentally anti-feminist.
7.19.2009 2:24am
Dilan Esper (mail) (www):
Caring about babies is not noxious,

We already established, you don't "care about babies" when vaginal births could endanger them.

You only "care about babies" when you can use them for your ulterior motive of taking sexual choices away from women.

Your hatred of the unborn

This makes no sense. Theo, people don't have abortions or support abortion rights because they "hate" clumps of cells implanted in women's uteruses. They support abortion rights because such rights are necessary to prevent the enslavement of women.

If you want to say that I don't really care about the meaningless clumps of cells implanted in women's uteruses that you stupidly call "the unborn" or "babies", sure, I don't really care about things that have no rights and don't think or feel anything and have no interest in living. Nor do you. You just care about denying sexual freedom to women. That's your racket. When reproductive rights don't interfere with your goal of denying sexual freedom to women, you go ahead and support them.

I'm secure enough in myself, Dilan, to know that I do not need to kill my child in order to get what I want out of life.

Theo, what "you want out of life" is not important, if it isn't what other women want out of life. Other women want a good sex life, they want to be independent of men, and they don't want to bear children that they did not wish to conceive. Their wishes are as important as yours. And you don't care about any woman who doesn't have the same desires you do or wants to have a different sort of sex life.

To attack the real issue as to why you are so fervently pro-choice: I'm not going to kill my unborn child because some prat can't be in a relationship without getting laid.

Theo, what you call "getting laid" is crucially important to many women. That you think it is unimportant is a choice you have the right to make. It is not one you should be able to force on other women.

If other women want to "get laid", they should be able to. And you shouldn't worry yourself with trying to punish them with unwanted children for doing it.

Yes, because getting one's foetus suctioned out of one's uterus, and having it shredded to death in the process, is the very epitome of "natural."

No, but self-administered abortions are "natural" and have been attempted as long as there have been pregnancies.

Further, as I said, since "natural" is a stupid standard (arsenic is "natural"), the only WORKABLE standards require that you protect abortion rights if you are going to protect the right to give birth vaginally. You can't have one without the other.

Likewise, pregnancy - the reason for every single human's existence in this world - is just a perversion of nature.

Again, only an idiot would advocate that we always adhere to the "natural". In nature, women die in childbirth. In an advanced technological society, interventions usually prevent that.

Similarly, in nature, lots of the little "babies" that you claim to care so much about also die in miscarriages and stillbirths. Again, we have procedures to prevent that.

"Nature" doesn't provide anything but misery. We intervene to save women, and to save fetuses. And the only way to protect women's agency when it comes to one sort of intervention is to protect their agency with respect to the other. That's why serious feminists understand that the right to vaginally deliver and the right to abort are both fundamental reproductive rights.
7.19.2009 2:35am
theobromophile (www):
Theo, what you call "getting laid" is crucially important to many women.

Sounds like someone doesn't like to perform cunnilingus....

Everything else is simply too disingenuous, and riddled with lies and libel, to address.
7.19.2009 2:48am
Dana:
Timing a bit off. Failure to wash and high maternal (not infant) mortality were characteristic of the mid 19th century, not early 20th. Ignaz Semmelweis first suggested the connection between doctor's failure to wash and maternal disease mortality in the late 1840s (and was disregarded).



David - birth didn't enter the hospital until the 20th century and the mortality rates went up. In fact, our infant mortality rates are on the rise AGAIN! That doesn't speak well for us. You ought to try reading Tina Cassidy's Birth, a Surprising History of How We are Born

Homebirth is very safe for low risk mothers (80-90% of all pregnancies). It is not taking a risk with a baby's life.

Advances in medicine have brought maternal and neonatal mortality rates down but that's modern medicine. If normal birth took place in the hospital in the 19th century, it would have been less safe than taking place at home (again due to all the doctors, patients and germs as opposed to 1 on 1 care with a midwife).
7.19.2009 9:40am
kristal:
Sounds to me like the dr.s are most likely exaggerating her attitude to justify their actions and are angry she didn't want to have an unnecessary c-section. C-sections are major surgeries and now a days they are treated like no big deal.
7.19.2009 12:29pm
Dilan Esper (mail) (www):
Sounds like someone doesn't like to perform cunnilingus....

Theo, I don't know where that came from, but for the record, I have no problem performing that particular act.

In any event, is that your solution for women who are sexually active but don't want to carry or bear children in a society where abortion is illegal?

The reality is that your solutions work fine FOR YOU, because illegal abortion works fine for women who are either celibate, infertile, or willing to welcome any child conceived in their relationships.

But for the rest of women, it works very badly. Legal abortion is the insurance policy that allows a woman to have a sex life that includes vaginal intercourse without being forced to carry and bear a child. Contraception sometimes fails, and legal abortion is the backstop.

What works perfectly well for women who express disdain for those who like to "get laid" works poorly for women who actually like to have an active sex life and don't want children at this time.

I suspect that some of them would switch to oral (as you suggest) or anal intercourse or masturbation in a regime of illegal abortions, but those methods are not as fulfilling for some women (for others they are). Other women would just take the risk and end up pregnant with fetuses that they can't or aren't ready to care for once born. And some women would die in childbirth, end up infertile, commit suicide, or obtain illegal abortions.

But none of those options are as good-- for those women-- as a regime of safe and legal abortions, even if that regime is not needed by women who are celibate, infertile, or welcoming of any children they conceive. Different strokes for different folks.

And the problem with your positions on this issue is that they are one-size-fits-all-- what works fine for women in your position works awful for women in other positions.
7.19.2009 9:26pm
John Moore (www):

But none of those options are as good-- for those women-- as a regime of safe and legal abortions,

Yep, sex without responsibility. That's what made this society great!
7.19.2009 11:40pm
theobromophile (www):
But none of those options are as good-- for those women-- as a regime of safe and legal abortions,

Likewise, nothing is so good for men as long walks on the beach, deep and meaningful conversations about their feelings, and a good cry.
7.20.2009 12:40am
theobromophile (www):
Other women would just take the risk and end up pregnant with fetuses that they can't or aren't ready to care for once born.

That's a strange statement about "taking a risk." Have you ever heard of this thing called "contraception"?
7.20.2009 12:59am
Dilan Esper (mail) (www):
Yep, sex without responsibility. That's what made this society great!

John, you are entitled to think that nonprocreative sex is bad. (By the way, just to be clear, there is plenty of sex WITH responsibility that is nonetheless nonprocreative. Only pro-lifers seem to believe that the only way to impart any responsibility into the concept of sex is by threatening women with pregnancy if they have it.)

You are not, however, entitled to use government power to make other people conform with your beliefs.

Other people believe differently than you, and they conduct their lives accordingly. And we don't need big government to come in and be the arbiter of whose views of sex are right and whose are wrong. Government intrudes in our lives enough without that.

The whole point-- which you have not denied-- is that pro-lifers' policies are fine for women who agree with you that sex should always carry the threat of procreation and are willing to be celibate if they don't want to procreate. It does not work for women who reject your views. And saying "well, the women who reject my views are wrong about sex" isn't an answer, because it isn't government's job to control the sex lives of those women who don't agree with John Moore about when you should and shouldn't have sex.

We see this same thing come up in debates about gay rights. Conservative proposals on gay rights (basically, that government shouldn't recognize any) are perfectly fine for straight people. But they are really bad for gay people. And you can't mitigate or justify that by saying "well I think homosexuality is wrong". You might, but it isn't the government's job to enforce your moral beliefs.

Likewise, nothing is so good for men as long walks on the beach, deep and meaningful conversations about their feelings, and a good cry.

Theo, again, I really think you would benefit from seeing the world through other women's eyes. (In fact, the fact that you don't do so is one of the reasons you clearly aren't a feminist.) In other words, it may be that YOU think that the desire to have intercourse without having to deal with a pregnancy is no more important than long walks on the beach, deep conversations, and a good cry. But that doesn't mean that other women would agree with you.

This is the thing I really wish you would get-- because this, rather than whether you choose to be pro-life, is really the feminist point on abortion-- BANS ON ABORTION MIGHT NOT AFFECT YOUR LIFE IN ANY WAY, BUT THEY SERIOUSLY DO AFFECT THE LIVES OF OTHER WOMEN. Namely, women who want to have sex lives without being forced to carry a fetus to term. Women whose boyfriends / husbands will kill them or get violent if they find out they are pregnant. Teen girls whose parents will do the same, or who are just too young to have a child.

The point is, the pro-life position doesn't offer these women anything, just like the anti-gay position doesn't offer anything to gays. The fact that you can live your life the way you want without needing a right to an abortion does not mean other women can. And saying "well, those women just want to get laid, and that's no more important than long walks on the beach, etc., etc." is really insensitive to what those women want out of life. It really is like telling a gay guy that he can live his life however he wants to, but he just can't have sex with another man. And the fact that such a policy would be perfectly consistent with the desires of celibate gay men wouldn't change the fact that it would be quite bad for gay men who actually want to have sex with other men.

You can't universalize your own experience, Theo. Other women are different than you are, and many of them think that both (a) their sex lives and (b) their ability to avoid having to bear a child or bear a child at this time are very important to them. Abortion rights give them the backstop they need to have both. Banning abortion takes away that backstop and forces them into a bunch of hard and bad choices. The fact that you don't have to face those choices, and the fact that you personally think that in your own life such choices would be easy to make because of your own moral viewpoints, really don't have any bearing on the difficulty that this choice would impose on other women. Your relationship to laws banning abortion is about the same as a straight man's relationship to laws discriminating against gays. Just because you aren't being harmed doesn't mean someone else isn't being harmed.

None of this is really intended to persuade you to jump over and become pro-choice. But you claim to be a feminist, and a feminist, even a pro-life one (and I haven't denied that such people exists, only that they make up any significant portion of the movement), would surely understand that her own choices should not be used as a justification for constraining the choices of other women.

Sex is really, really important to a whole lot of people. So is family planning. Because contraception sometimes fails, legal abortion is the safety valve that allows people to have sex while engaging in family planning. There are plenty of people who, for various religious reasons and because of a commitment to patriarchal ideals, don't believe that it's all that important that women be able to be sexually active while also avoiding the threat of pregnancy. They are not, however, feminists. You need to look beyond your own experiences and see why a lot of women think abortion rights are very, very important. You don't need to agree with them. But you need to understand them, and not denigrate their desires as if they are nothing more than the equivalent of long walks on the beach. A true feminist, as I said, would.
7.20.2009 1:11am
Dilan Esper (mail) (www):
That's a strange statement about "taking a risk." Have you ever heard of this thing called "contraception"?

I answered this, theo. Contraception doesn't always work. Abortion is the backstop. It's the last resort that a sexually active woman can know is there if the condom breaks, or she forgets to take the pill, or she just slips up and has an unprotected encounter.

Without legal abortion, women who are sexually active but who don't want children will be living in constant fear that something may go wrong and they could be saddled with a baby. They may decide to forego sexual intercourse altogether, or they may decide to go ahead and then find themselves in the most traumatic possible situation when the unthinkable happens. That can lead to all sorts of psychological problems, suicide, beatings and domestic violence, etc. There can also be complications in the pregnancy. Some women will seek to terminate the pregnancy illegally, through self-abortion or illegal abortion.

Legal abortion is the backstop that allows women to forget about all that stuff and focus on enjoying their sex lives. Again, you need to understand how other women feel-- I can tell you I have discussed this issue at length over the years with many of the women in my peer group, and this is something a lot of women think about even if you may not.
7.20.2009 1:16am
Krista (mail):
why ask for consent then...why not just let the docs cut women open whenever the heck they want! Continuous monitoring keeps women on their backs which actually stalls labor...that is abuse. Epidurals can cause severe long lasting back pain or paralysis...that is abuse. This is so insane and the reason I will never step inside a hospital while I am pregnant. I would rather give birth in the woods.
7.20.2009 8:38am
Krista (mail):
Kudos Dilan Esper...you are a true woman's man. I sincerely hope you do something in life that supports all you say. The world needs more men with views like yours. Women need a little less government intervention in our uterus'. Goodness knows, I don't see government interference in any man's testes!
Let us also say that taking a child away from its mother with no contact whatsoever and not allowing for initiation of breastfeeding is abuse and neglect on the mother and child! That first initial contact is vital for bonding, uterine contraction, and of course, breast milk is best! I can't imagine having medical interventions forced upon me and then my child ripped away from my body. UGH! Women birthed without c-sections and epidural and continuous monitoring since the beginning of time. Yes, there are a few cases where it might actually be necessary...but certainly not as often as it occurs now. This story is truly disturbing and makes me trust our medical system even less.
7.20.2009 9:05am
theobromophile (www):
Dilan: the ends do not justify the means. Let us be clear about those terms here. "The ends," in your view, is unprotected sex. (Yes, unprotected: in your view, women are like children - a group legally protected from the consequences of their actions: "Legal abortion is the backstop that allows women to forget about all that stuff and focus on enjoying their sex lives. ")

The means? Killing a human being.

Full stop.

It isn't my fault that you are too blinded by the first to see that you propose to institute it based on the second.
7.20.2009 9:28am
theobromophile (www):
Thank you for demonstrating that not only is the pro-life position compatible with feminism, but that feminism and the pro-life position are intertwined:
They may decide to forego sexual intercourse altogether, or they may decide to go ahead and then find themselves in the most traumatic possible situation when the unthinkable happens. That can lead to all sorts of psychological problems, suicide, beatings and domestic violence, etc.

Abortion: helping abusive rapist live-in boyfriends get laid!

(Note to Dilan: if a woman is in a relationship wherein her husband will beat her because she does not submit to sex, then the solution is NOT to give him more ammunition - i.e. "Just get an abortion if you get pregnant" - but to get her out of that situation and to throw the SOB in jail.)
7.20.2009 9:38am
Anna (mail):
This is crap! Someone or everyone needs to stand up for this family and put the courts back in its place!!! The poor family and baby!
7.20.2009 10:11am
mitch_doula (mail):
Why is that this family can lose their child; considering refusal for a c-section child abuse, but doctors are not losing their right to practice medicine when many mothers and babies die from c-sections or that induction cause many premature births and health complications for children? We as patients and parent-child advocates need to stand up against this obsurded way of thinking that is infringing on our rights as citzens and parents.
7.20.2009 11:18am
John Moore (www):
Dilan
This is the thing I really wish you would get-- because this, rather than whether you choose to be pro-life, is really the feminist point on abortion-- BANS ON ABORTION MIGHT NOT AFFECT YOUR LIFE IN ANY WAY, BUT THEY SERIOUSLY DO AFFECT THE LIVES OF OTHER WOMEN. Namely, women who want to have sex lives without being forced to carry a fetus to term.


Yep, that sex is just so important that HAVING SEX KILLING OTHER HUMAN BEINGS (yeah, I can shout too).,

You just need to understand that, Dilan. Many of us object to the deliberate murder of human beings as a way to avoid the unintended consequences of sex.

You nicely illustrate why religions do have so much to say about sex - it is serious business and modern society has sought to reduce it to just another physiological activity.
7.20.2009 1:26pm
John Moore (www):
Oops... editing caused me to leave out a critical word. Again, corrected:

Yep, that sex is just so important that HAVING SEX JUSTIFIES KILLING INNOCENT HUMAN BEINGS (yeah, I can shout too).

If that's feminism, then your definition of feminism is literally evil.
7.20.2009 1:27pm
Dilan Esper (mail) (www):
Yes, there are a few cases where it might actually be necessary...but certainly not as often as it occurs now.

Krista, my understanding is that there are certainly situations where a c-section is medically necessary, and also situations where despite being not strictly necessary the procedure will decrease risk to the woman and/or the fetus. There are also way too many c-sections (i.e., c-sections that are not medically necessary or advisable), especially at certain hospitals.

But the way to handle all this is the same way that health-related abortions should be handled. The woman should be able to decide in consultation with her doctor. Hopefully, women who actually do need to get c-sections will get them (and, by the way, there's nothing wrong with the government trying to ensure that better information gets out there about when c-sections are and aren't necessary), and women who don't need them won't be coerced into having them. But punishing the women after the fact is absolutely barbaric and a gross intrusion on reproductive freedom.
7.20.2009 1:40pm
Dilan Esper (mail) (www):
Dilan: the ends do not justify the means. Let us be clear about those terms here. "The ends," in your view, is unprotected sex. (Yes, unprotected: in your view, women are like children - a group legally protected from the consequences of their actions: "Legal abortion is the backstop that allows women to forget about all that stuff and focus on enjoying their sex lives. ")

Theo, in a world where contraception and abortion are legal and widely available, pregnancy is not "the consequences of their actions". Indeed, that's the whole point. We don't want it to be, because otherwise sexually active women who don't want to bear children will be gravely harmed.

Your responses to this all boil down to two things: (1) you think from the zygote stage on, an embryo / fetus is a living human person whose right to life cannot be overridden (fine if you want to believe that, even though I think you are quite wrong, but for the record I think this one is perfectly consistent with feminism); and (2) you don't think that the desire of many women to be sexually active while not having any risk of conceiving is not particularly important, that it is simply a desire to "avoid the consequences of their actions", no more important than a man's desire to take long walks on the beach.

It's the second motivation that is anti-feminist, Theo, because what you are doing is saying that the views of any woman who has different views about sex than you do shouldn't count.

Note to Dilan: if a woman is in a relationship wherein her husband will beat her because she does not submit to sex, then the solution is NOT to give him more ammunition - i.e. "Just get an abortion if you get pregnant" - but to get her out of that situation and to throw the SOB in jail.

Theo, I represented battered women in a legal clinic when I was in law school. There are many reasons, psychological, social, and physical, why battered women don't leave their batterers. "Learned helplessness" is the key search term if you would like to find out something about this. Yes, I agree, in a perfect world, they would leave. But if you met some of these women, and talked to them, you might realize why many of them don't.

In any event, there's actually plenty of evidence (which you can find through google) that traditionalist countries that ban abortion, such as in the Middle East and in Latin America, have much higher rates of domestic violence than we do, which is an indicator that in fact your theory that banning abortion might prevent some level of domestic violence by getting battered women to leave their husbands/boyfriends is not realistic.
7.20.2009 1:49pm
Dilan Esper (mail) (www):
You just need to understand that, Dilan. Many of us object to the deliberate murder of human beings as a way to avoid the unintended consequences of sex. You nicely illustrate why religions do have so much to say about sex - it is serious business and modern society has sought to reduce it to just another physiological activity.

John, there's nothing wrong with religious leaders saying whatever they want to say about sex. They are protected by at least 3 provisions of the First Amendment when they do so, and rightly so.

But abortion is a legal issue, and it's one thing to say that we might decide to restrict abortion based on claims of fetal life (as I said, I think such claims are quite wrongheaded, but this is an issue where reasonable people disagree) and quite another to say that we might decide to restrict abortion because John Moore and Theobromophile happen to think that the desire of a woman to have a sex life that they don't approve of doesn't count or isn't important.

And the problem with pro-lifers is that while they swear up and down that the issue is just about fetal life, when you probe most of them, wow, it just HAPPENS to turn out that most of them think that the desire to separate sex from procreation (which pro-lifers call "consequences", again assuming that the only possible consequence of sex that can ever count is the possibility of conception) is illegitimate and that we'd be better off if the only women who had sex were those who were willing to take at least some risk (even if they used contraception) that they may get pregnant.

And that can't be a legitimate ground for public policymaking, because a lot of women disagree with you and Theo about sexual morality and the importance of being able to have a sex life that isn't tied to pregnancy.
7.20.2009 1:58pm
John Moore (www):

But abortion is a legal issue

No, abortion is a whole lot more of a legal issue. Otherwise the only people arguing about it would be lawyers!

And the problem with pro-lifers is that while they swear up and down that the issue is just about fetal life, when you probe most of them, wow, it just HAPPENS to turn out that most of them think that the desire to separate sex from procreation (which pro-lifers call "consequences", again assuming that the only possible consequence of sex that can ever count is the possibility of conception) is illegitimate and that we'd be better off if the only women who had sex were those who were willing to take at least some risk (even if they used contraception) that they may get pregnant.

And that can't be a legitimate ground for public policymaking, because a lot of women disagree with you and Theo about sexual morality and the importance of being able to have a sex life that isn't tied to pregnancy.


Yeah, funny thing about that - those opposed to murder of innocents are also in favor of personal responsibility. What a coincidence. Furthermore, it can very well be a matter of policymaking, because it has dramatic social impacts (there would be 30,000,000 more blacks in the US without legal abortion - but then, that's just fulfilling Planned Parenthood's original intent, isn't it).


Theo, in a world where contraception and abortion are legal and widely available, pregnancy is not "the consequences of their actions". Indeed, that's the whole point. We don't want it to be, because otherwise sexually active women who don't want to bear children will be gravely harmed.


I see. They got pregnant because an alien pulled them into a spaceship and inseminated them. Now I understand. Their actions had nothing to do with it, as you say.
7.20.2009 4:48pm
Suzy (mail):

Legal abortion is the backstop that allows women to forget about all that stuff and focus on enjoying their sex lives. Again, you need to understand how other women feel-- I can tell you I have discussed this issue at length over the years with many of the women in my peer group, and this is something a lot of women think about even if you may not.


What a horrible thing to say. You may have a very unusual peer group, because abortion is not generally looked upon so lightly by women. Regardless of whether one is pro-life or pro-choice, abortion is not some kind of happy last-resort that makes sex carefree! It's a terrible procedure, even if you are sure that it's perfectly moral. If you really want to defend the pro-choice cause, word of advice, drop this piece from your rhetorical arsenal. It will alienate even most of the people on your own side.
7.20.2009 4:54pm
Dilan Esper (mail) (www):
Yeah, funny thing about that - those opposed to murder of innocents are also in favor of personal responsibility.

John, pro-choicers are opposed to the murder of innocents too. The differences are that pro-choicers don't view abortion as killing of a human person (because it occurs before birth / viability / some stage of fetal development where the fetus takes on relevant characteristics) and/or because they don't view it as murder (because the woman's control of her body trumps any rights of the fetus and/or abortion is a form of justifiable homicide under particular circumstances). Some pro-choicers are even personally pro-life, i.e., they do believe abortion is murder and are opposed to it, but they don't believe that the law should take steps that would have such an adverse affect on women.

The pro-life side contains a fair amount of self-congratulation, as if you guys are the only ones who care about human life. In fact, we all do, and pro-choicers aren't pro-choice because we love murdering babies-- it's because we don't share the premises that pro-lifers hold, including BOTH the premises about the moral status of the fetus AND the premises about female sexual morality and what "consequences" should flow from sex.
7.20.2009 6:01pm
Dilan Esper (mail) (www):
I see. They got pregnant because an alien pulled them into a spaceship and inseminated them. Now I understand. Their actions had nothing to do with it, as you say.

John, your logic is like saying that a person who gets hit by a drunk driver while driving his wife to the hospital is partially responsible because they didn't have to go out and drive and driving is risky.

For a lot of women, sex isn't something that you can just give up and not do. It's something they want and need and desire in their lives. It's very important to them. As a result, you can't just blithely say that anyone who has sex and has a contraceptive failure simply has to face the "consequences" of pregnancy.

You-- and most pro-lifers-- have a circular view of sex and procreation and responsibility. You say that a woman is responsible if she gets pregnant because that's the consequence of taking the risk and having sex. But then when pro-choicers observe that we could sever that relationship and make it NOT be the consequence, you turn around and say that pregnancy should be the consequence of having sex. But at no point is there any justification given for why the state of nature is better than the alternative offered by pro-choicers (other than the contestable proposition about fetal rights).

The point is, pregnancy is only the consequence of female sexuality if we as a society decide to make it the consequence. We can decide to do it, or we can decide not to do it. But simply saying (with apologies to the late Walter Cronkite) "that's the way it is" doesn't offer any justification for your argument.

We can eliminate pregnancy as a consequence of female sexuality by having liberal abortion and contraception laws and, indeed, we have done so. And that's very good for those women who disagree with you and think they ought to be able to have sex without the threat of the burden of an unwanted pregnancy. Repeating yourself over and over again that pregnancy IS the consequence of female sexuality doesn't change this fact one bit.
7.20.2009 6:10pm
John Moore (www):
Dilan,
I am well aware of what pro-choicers believe about their movement. I am also aware, as you appear not to be, that their political actions belie their beliefs. Pro-choice advocacy groups are consistently and vehemently against any legal restriction on abortion, for any purpose, at any stage in the pregnancy.

So it doesn't matter what the members individually believe - their actions result in a lot of homicide. Their beliefs may provide a fair amount of self-congratulation (we don't believe in murder) but their results are simply murder.

As to beliefs about murder, some societies don't view the killing of unwanted babies as murder - even after birth. Shall we include them in the pro-choice clan?

This statement really gives it away:
they don't view it as murder (because the woman's control of her body trumps any rights of the fetus and/or abortion is a form of justifiable homicide under particular circumstances)


From a legal standpoint, pro-choice groups believe that the particular circumstances are ANY circumstances. Furthermore, anyone who believes that a "woman's control of her body" (after she becomes pregnant from voluntary sex) "trumps" any rights of the fetus is simply wrong. If a fetus has rights, the very first and fundamental right must be that of right to life. Without that right, all others are meaningless. So either the fetus is not a human being, or killing the fetus is homicide, and that homicide is murder unless done to save the life of the mother.

Arguably, even the latter is homicide. If you hold a gun to my head and make a perfectly believable threat that you will kill me unless I kill an innocent third party, I am legally guilty of murder if I kill that third party. Do you see how very close that is to the idea of killing a fetus even to save the life of the mother? It is clear that even the pro-life side has ceded a bit of ground in that all that I am aware of allow for saving the life of the mother, at any age of gestation.
7.20.2009 6:14pm
Dilan Esper (mail) (www):
What a horrible thing to say. You may have a very unusual peer group, because abortion is not generally looked upon so lightly by women.

Suzy, where did I say that legal abortion was looked on lightly? It's a backstop, I said. A last resort. An insurance policy. That's not the language of someone taking abortion lightly. Rather, that's the language of someone saying that a lot of women see abortion as something to be avoided (by using contraception) but which they want to be safe and legal, just in case.

Regardless of whether one is pro-life or pro-choice, abortion is not some kind of happy last-resort that makes sex carefree!

Suzy, you are using a very loaded word "carefree". That makes it sound like every pro-choicer is running around advocating casual anonymous sex. That's not it at all.

Rather, the pro-choice movement, and the women in my peer group, believe that having legal abortion around as a last resort frees them from having to worry that any sexual encounter that they choose to have (or, by the way, are coerced or drink their way into having) could result in a pregnancy if the contraceptives fail or someone forgets to use them. In other words, pregnancy could massively upturn their lives, contraceptives are 99 or 97 or 95 percent effective, but pregnancy is such a threat that even a 5 percent risk is scary. Legal abortion assures women that they do not have to run that last 5 percent risk. And this includes not only "carefree" women having casual one night stands but also women with long-term boyfriends or husbands who simply can't afford to get pregnant, and women in abusive relationships or teens with abusive parents, and all sorts of other women as well.

It isn't about "carefree" sex. It is about sex free of the specific worry about pregnancy. There's still plenty of personal responsibility attached to sexual activity whether or not there is the threat of pregnancy. The pro-lifers, though, specifically want the threat of pregnancy to hang over sexually active women's heads like the sword of Damocles.
7.20.2009 6:17pm
John Moore (www):

Rather, the pro-choice movement, and the women in my peer group, believe that having legal abortion around as a last resort frees them from having to worry that any sexual encounter that they choose to have (or, by the way, are coerced or drink their way into having) could result in a pregnancy if the contraceptives fail or someone forgets to use them. In other words, pregnancy could massively upturn their lives, contraceptives are 99 or 97 or 95 percent effective, but pregnancy is such a threat that even a 5 percent risk is scary. Legal abortion assures women that they do not have to run that last 5 percent risk.

Isn't it amazing how the most base selfishness is now a virtue?

A true feminist position would be to not allow abortion, but to make sure that the male also suffers the consequences of his part in this terrible tragedy - that of creating a human being.

How sad it is that the creation of a human being can be seen only as something that massively upturns someone's life!
7.20.2009 6:22pm
Dilan Esper (mail) (www):
I am well aware of what pro-choicers believe about their movement. I am also aware, as you appear not to be, that their political actions belie their beliefs. Pro-choice advocacy groups are consistently and vehemently against any legal restriction on abortion, for any purpose, at any stage in the pregnancy.

John, this isn't really true. Lots of pro-choice groups, for instance, have not opposed partial birth laws so long as they have a health exception. Lots of pro-choice groups take no position on post-viability abortion restrictions, again, as long as they contain a health exception.

But it also doesn't prove your point. The NRA, for instance, can be said to be consistently and vehemently against any gun control that in any way affects what they term "law abiding citizens". Why? Well, because they are an advocacy organization, and such groups routinely take maximalist positions for all sorts of reasons (slippery slope worries, fundraising, hope that they can move the Overton window, etc.).

Similarly, pro-life groups are maximalist. Yes, they may focus their public campaigns on half-measures like parental consent, but in terms of the positions they take, a lot of them go beyond Roe claim that the Fourteenth Amendment bans abortion nationwide! Heck, these groups don't even support contraception as a way to prevent abortion!

Advocacy groups are maximalist. They always have been. This proves nothing. You might, instead of getting yourself all into a lather about NARAL, talk to some pro-choice women and see what they say about the issue. You might find a lot more nuance that way.

So it doesn't matter what the members individually believe - their actions result in a lot of homicide. Their beliefs may provide a fair amount of self-congratulation (we don't believe in murder) but their results are simply murder.

John, there is a longstanding debate about whether abortion is, in fact, murder. Pro-choicers, for reasons I stated and which you didn't rebut, don't think it is. You do.

You have to understand what it means when you call abortion murder. You are saying that a woman and her doctor are the equivalent of, for instance, cold blooded mafia hitmen who kill a human being with extreme malice. That's what murder is. Not voluntary manslaughter. Not negligent homicide. Murder means killing someone with full intent and malice aforethought.

And it means that pro-choicers are the equivalent of, say, Al Capone's subordinates who paid off law enforcement in Chicago to ensure that Capone could continue murdering people at will.

That's what I mean by self-congratulatory. It's really easy to posit yourselves as the people who oppose murder and the folks who oppose you as the folks who support murder. But pro-choice women, their doctors, and the pro-choice movement lack any sort of malicious intent. None of them hate fetuses, even if we assume that fetuses have the rights of full human persons. They don't agree with your premises. Real murderers agree with the premise that what they are doing is murder and do it anyway because of malice.

As to beliefs about murder, some societies don't view the killing of unwanted babies as murder - even after birth. Shall we include them in the pro-choice clan?

You'd like to, wouldn't you? But as I recall, pro-lifers get upset when they are linked with religious groups that oppose contraception, even though there actually IS a relationship between those groups while there is no relationship between pro-choicers and advocates of infanticide. It seems to me you can't have it both ways.

From a legal standpoint, pro-choice groups believe that the particular circumstances are ANY circumstances.

See above re: interest group maximalism.

Furthermore, anyone who believes that a "woman's control of her body" (after she becomes pregnant from voluntary sex) "trumps" any rights of the fetus is simply wrong. If a fetus has rights, the very first and fundamental right must be that of right to life. Without that right, all others are meaningless. So either the fetus is not a human being, or killing the fetus is homicide, and that homicide is murder unless done to save the life of the mother.

This is way off-topic, but actually, John, this doesn't follow. I have a right to life, but that doesn't mean that all killings of me are punishable as murder. If I am killed negligently, that is not murder. If I am killed non-negligently, that isn't even a crime. If I am killed as a result of self-defense, duress, insanity, or any number of other reasons, my killing is not punishable at all. If I am killed by a lawful combatant in a war, my death is not punishable if I am a combatant and may still not be punishable even if I am not one. And there are plenty of justifications and/or excuses that are potentially available that can legally immunize someone who kills me.

In other words, even though I have the full right to life of a sentient adult (which, as you know, dispute applies to a fetus but we will assume arguendo applies for this discussion), there are plenty of rights, privileges, interests, excuses, and other legal doctrines that trump even that most protected and honored of rights.

So unless pro-lifers are arguing that a fetus should have an even greater right to life than an adult has, you have at least the theoretical possibility that a competing interest can outweigh a fetal right to life.

Do you see how very close that is to the idea of killing a fetus even to save the life of the mother?

John, when logic compels you to advocate a morally repugnant conclusion, it usually means your premises are wrong. And that's what has happened here. Specifically, as noted above, you have somehow excluded the possibility that the woman's interests can EVER count and be weighed against the fetus' right to life. That, as I said, is a position that is not actually taken in any area of homicide law, but you take it here. And as a result, you miss the crucial difference between murder-by-duress and abortion to save the life of the woman, which is in the latter case, the woman has interests that must be weighed against the claim of the fetus to a right to life, whereas the person holding the gun to the other person's head has no interests that the law needs to respect.
7.20.2009 6:43pm
Dilan Esper (mail) (www):
How sad it is that the creation of a human being can be seen only as something that massively upturns someone's life!

John, a wanted pregnancy is not seen that way. But an unwanted pregnancy often is.

And this is true of many things. For instance, a wanted kiss is a sublime experience. But an unwanted kiss is a gross violation of your personal autonomy. And I doubt if someone was arguing, either as a matter of personal etiquette or sexual harassment law, that you shouldn't kiss folks who don't want to be kissed by you, that you would respond that it is sad that something as beautiful and intimate as kissing can be seen only as something that grossly violates someone's personal autonomy.

With respect to pregnancy, it's pretty simple. Wanted = good, one of the greatest and most meaningful of human experiences. Unwanted can = bad, a massive upheaval in a woman's life.

Finally, this:

A true feminist position would be to not allow abortion, but to make sure that the male also suffers the consequences of his part in this terrible tragedy - that of creating a human being.

It's really funny when conservatives argue this, because you guys are the folks who are always harping on biological sex differences. I am sorry, but no matter what you do, you can't make the male "also suffer the" pregnancy. It's imposed solely on the woman. And it's a massive, unique, nine-month long imposition that involves serious bouts of sickness, weight gain, difficulty in doing one's job, and sometimes threats to the woman's health and life. There's nothing you can possibly do to impose any of that on men. This is the central biological sex difference.

As a result, the only way you can get to equality is not by trying to impose something on men that can't, physically, be imposed on them but by trying to ensure that it is never imposed on an unwilling woman. This is the equal protection case for abortion rights, and it has been argued into the ground by pro-choicers.

Of course, it's more convenient for your side to assume that we're all just a bunch of murderers.
7.20.2009 6:49pm
John Moore (www):
This is way off-topic, but actually, John, this doesn't follow. I have a right to life, but that doesn't mean that all killings of me are punishable as murder.

You completely miss the point. You stated "the woman's control of her body trumps any rights of the fetus " and I responded essentially that the only right that counts is that to life, since any other right is secondary to that.

Specifically, as noted above, you have somehow excluded the possibility that the woman's interests can EVER count and be weighed against the fetus' right to life.

Yes, in my example there (I didn't say I hold that position, but that it is entirely consistent with homicide law). Since the fetus is by definition innocent, any intentional harming of the fetus that leads to its death, once it has a right to life (which by definition makes it human), is murder as consistent with homicide statutes (at least in Arizona, where I live).
That, as I said, is a position that is not actually taken in any area of homicide law, but you take it here. And as a result, you miss the crucial difference between murder-by-duress and abortion to save the life of the woman, which is in the latter case, the woman has interests that must be weighed against the claim of the fetus to a right to life, whereas the person holding the gun to the other person's head has no interests that the law needs to respect.


No, you miss the congruence. It matters not the slightest what interests the person holding the gun has. It's the interest of the personn with the gun to her head that counts.

Hence:

person with gun to head == pregnant woman

innocent third party == unborn human (by definition, if the fetus has a right to life)

Put another way, you miss the crucial equivalence of murder-UNDER-duress and abortion under threat of death (the threat in this case is natural)
7.20.2009 7:02pm
John Moore (www):
BTW, it is likely that the pregnant woman has more fault (by taking voluntary actions that resulted in pregnancy) than the person with the gun to his head.
7.20.2009 7:38pm
Dilan Esper (mail) (www):
You completely miss the point. You stated "the woman's control of her body trumps any rights of the fetus " and I responded essentially that the only right that counts is that to life, since any other right is secondary to that.

Again, though, this isn't true. I can be killed for all sorts of reasons short of a pure life-against-life situation. For instance, if instead of pointing a gun at an innocent person and telling him to shoot me, a criminal could threaten to rape that person's 6 year old child if he didn't shoot me, and that would still constitute a valid duress defense.

In fact, in many states, I can be shot and killed merely for burglarizing a person's home and threatening nothing but their property rights. Here in California, under Kentucky Fried Chicken v. Superior Court, the property rights of store owners have specifically been held to trump the right of business invitees to their physical safety.

Further, in many of the situations I listed (insanity, self-defense, accidental or non-negligent homicide) in which my right to life can be trumped despite there being no threat whatsoever to anyone's life.

Again, it seems really simple and a form of formal logic to say that the only interest that can possibly justify taking a life is another person's life, but we don't actually accept that proposition in our legal system. So if you are arguing that the only competing interest that counts in the context of abortion is another life, you are arguing that fetuses have a right to life that is even greater than that enjoyed by sentient adults.

No, you miss the congruence. It matters not the slightest what interests the person holding the gun has. It's the interest of the personn with the gun to her head that counts.

However, (1) as I have demonstrated, this is not in fact the way the legal system works, and (2) moral reasoning would be really easy if we could just discount legitimate competing interests. You don't think that the woman's interests should count (other than perhaps a direct threat to her life). But others do count those interests and that's why they support abortion rights. You don't think the interests are very important, other people think the interests are compelling.

Professor Volokh has, in the past, analogized abortion directly to self-defense, and in this respect, it is a good analogy. A lot of liberals don't think very much of liberal self-defense rules; a lot of folks on the gun rights side think that they should be strengthened. The reason this debate exist is in part because the two sides balance the competing interests differently. Specifically, the gun rights side thinks very highly of property rights, for instance, and says you shouldn't have to flee from your own home and ought to be able to stand your ground even if there is no threat to your life. The other side of the debate thinks property rights are less important, and that the right of even a trespasser to his or her life outweighs these rights.

Notice, however, that neither side is "anti-life". Neither side is advocating murder. Neither side is acting out of malice.

That's what is going on here. Pro-choicers believe quite fervently that the interests of the woman are quite important and need to be weighed against whatever fetal life claim is made. Pro-lifers believe those interests aren't very important and can never or rarely outweigh the fetus' interest in his or her life. But that's a lot less fun than calling us murderers.
7.20.2009 7:46pm
Dilan Esper (mail) (www):
BTW, it is likely that the pregnant woman has more fault (by taking voluntary actions that resulted in pregnancy) than the person with the gun to his head.

Only in the same sense that anyone who gets in a car and drives is at fault if they are hit by a drunk driver.

This is the circular argument I observed above. Sex only has the consequence of pregnancy if we as a society decides that it shall have that consequence. We also have the option of decoupling the two. Thus, we can't make public policy on the basis that a woman who has sex and gets pregnant is "at fault"; that's the very matter that is hotly disputed between the religious right (which believes that she is) and sexually active women (who believe that they are not).
7.20.2009 7:48pm
John Moore (www):
Again, though, this isn't true. I can be killed for all sorts of reasons short of a pure life-against-life situation. For instance, if instead of pointing a gun at an innocent person and telling him to shoot me, a criminal could threaten to rape that person's 6 year old child if he didn't shoot me, and that would still constitute a valid duress defense.

In which jurisdiction? Certainly not in Arizona, and probably not anywhere in the US. Of course, IANAL, RU? cf:
The common law rule, expressly adopted by statute in some states, is that duress is not a defense to an intentional killing. A very few states recognize an "imperfect" duress defense, which reduces the offense to manslaughter. Courts are split on the availability of the duress defense in felony-murder prosecutions.

Then you go on to bring in irrelevant, but still incorrect assertions:
In fact, in many states, I can be shot and killed merely for burglarizing a person's home and threatening nothing but their property rights. Here in California, under Kentucky Fried Chicken v. Superior Court, the property rights of store owners have specifically been held to trump the right of business invitees to their physical safety.

You are again misreading the statutes. Arizona has a typical "castle doctrine" statute, which is what you refer to. However, the castle doctrine merely enshrines in law the fact that a burglary of an occupied residence is inherently an act that threatens violence. Tell me what state allows anyone to shoot a burglar in an unoccupied home or business?

Having mischaracterized the gun rights debate, you now grossly exaggerate and mischaracterize the abortion debate:
That's what is going on here. Pro-choicers believe quite fervently that the interests of the woman are quite important and need to be weighed against whatever fetal life claim is made. Pro-lifers believe those interests aren't very important and can never or rarely outweigh the fetus' interest in his or her life. But that's a lot less fun than calling us murderers.


Moving on...


Again, it seems really simple and a form of formal logic to say that the only interest that can possibly justify taking a life is another person's life, but we don't actually accept that proposition in our legal system.

So far you have failed to sustain that position (except in the special case that the state feels justified in taking lives for non-homicidal offenses for offenses such as treason or certain organized crime activity).
Specifically, the gun rights side thinks very highly of property rights, for instance, and says you shouldn't have to flee from your own home and ought to be able to stand your ground even if there is no threat to your life.

This is an extreme mischaracterization. The gun rights side (to which, not surprisingly, I belong) believes that you should not have to flee (it has nothing to do with property) when faced with a threat to life. The anti-gun side believes that if you have a threat in your home, you should be required by law to flee rather than facing the threat with deadly force.

It has NOTHING to do with property rights. The "no flee" rule also applies off your property. These rules were enacted because people reasonably acting in self defense were too often judged after the fact by monday night quarterbacks, and were imprisoned improperly. They change the burdens of proof by enacting, by statute, the presumption of defense of life in certain circumstances.

Sex only has the consequence of pregnancy if we as a society decides that it shall have that consequence. We also have the option of decoupling the two.


If that statement were true, you wouldn't have to argue for abortion "rights" because the only people who ever unintentionally got pregnant were raped.
7.20.2009 8:22pm
Dilan Esper (mail) (www):
In which jurisdiction? Certainly not in Arizona, and probably not anywhere in the US. Of course, IANAL, RU?

Yep.

"Duress is not a defense to murder", but someone under coercion that meets the legal standard for duress doesn't form the malicious intent necessary to commit murder anyway. Rather, duress is a defense to the lesser homicide charges that someone can be charged with in that situation.

However, the castle doctrine merely enshrines in law the fact that a burglary of an occupied residence is inherently an act that threatens violence. Tell me what state allows anyone to shoot a burglar in an unoccupied home or business?

That's a legal fiction, though. One could define a fetus' inahbiting a womb as inherently an act that threatens the woman. You wouldn't like that and would (rightly) say that just because the law defines it that way doesn't make it so.

In truth, many burglars are no threat to anything but property. And yet, you can shoot them. Why? Because the law permits property interests to trump someone's life in certain situations.

So far you have failed to sustain that position

John, I mentioned something like 15 different situations. You didn't respond to any of them except for 2, and your responses on those 2 were wrong. You are like the Black Knight in "Monty Python and the Holy Grail".

The gun rights side (to which, not surprisingly, I belong) believes that you should not have to flee (it has nothing to do with property) when faced with a threat to life. The anti-gun side believes that if you have a threat in your home, you should be required by law to flee rather than facing the threat with deadly force.

John, here you are just baldly lying. Stand your ground laws DISPENSE with the requirement of a showing of a threat to your life. That's the whole point. You can ALWAYS get a self-defense defense when your life is actually threatened, in your home or otherwise. The point of stand your ground laws is to permit you to assert the defense EVEN IF YOU CAN'T PROVE AN ACTUAL THREAT. That's what it means to "presume" a threat.

And the pro-gun rights side, which you belong to, thinks that is a good thing, because defending your home with deadly force should be privileged whether or not there is an actual threat to your life. Otherwise, they'd support a normal self-defense instruction that requires you to prove an actual threat.

These rules were enacted because people reasonably acting in self defense were too often judged after the fact by monday night quarterbacks, and were imprisoned improperly.

John, there are two sets of laws here. There are laws that you are referring to that don't require you to flee from a threat of force. And there are also laws that don't require you to flee your home EVEN IF THERE IS NO THREAT OF DEADLY FORCE. They are two different principles. And the second one isn't about changing the burden of proof; it's about the property right in your home being sufficient to trump the burglar's interest in his or her safety.

If that statement were true, you wouldn't have to argue for abortion "rights" because the only people who ever unintentionally got pregnant were raped.

John, again, it is true. We as a society HAVE separated sex from pregnancy. John, for goodness sakes, that's exactly what Roe did! You don't like it, you don't agree with it, you don't think it should have happened. But that's exactly what has happened.

The fact that you are unable to conceptually separate the two concepts, and you think they should always and forever be tied, doesn't mean they are. We have, through liberal abortion and contraception laws, split them.

And this means that you can't just blithely assert that women who get pregnant are "responsible for the consequences of having sex". Because we have decided as a society (through our Supreme Court) that in fact pregnancy is not, in fact, a consequence of sexual activity that women have to be responsible for.

The legality of abortion changes the calculus, John. It is true that in a state of nature (where life is nasty, brutish, and short), women would in fact be responsible for that "consequence", so long as they did not self-abort (as some women always have). But we have changed the calculus as a society. And you can't argue against that by simply assuming your premise that pregnancy is the consequence of sexual activity. No, it isn't anymore.
7.20.2009 9:24pm
Dilan Esper (mail) (www):
John:

"Florida Statute 776.013 states that a person defending their home or occupied vehicle from an "unlawful" forceful entry or attempted forceful entry by another may use deadly force to stop the invasion or attempted invasion of the property. In such instances they need not retreat before using deadly force, they need not warn the intruder of their intent to shoot, and there is an absolute presumption that the person attempting the entry was doing so with the intent to commit a violent act (i.e. "forcible felony")"

In other words, they eliminated the requirement that the defendant prove that he or she was in any danger before using deadly force. ("Absolute presmption" means "the law will presume this even if the facts conclusively establish that it was not the case".)

So the property owner's right to remain on his property is privileged over the burglar's life, even where there is no threat at all to the property owner's safety.
7.20.2009 9:36pm
Suzy (mail):

Legal abortion is the backstop that allows women to forget about all that stuff and focus on enjoying their sex lives.


How is it inaccurate to characterize forgetting pregnancy worries and focusing on enjoying sex as "carefree"? Nothing about one-night stands or single women is implied by this term. You're describing abortion as a kind of reassuring last resort that frees women from stressing too much about contraceptive failure so that they can better enjoy sex. I don't know any woman, pro-choice or otherwise, who looks upon abortion that way, so yes, I think your peer group is extremely odd if this is how they see it.

If you're looking for a "backstop" like this, how about the morning-after pill (plan b)? I gather it's relatively painless and supposedly prevents implantation, so it might cause women less concern to choose this method. Abortion, by contrast, is a terrible thing even if you think it should be legal. The point is that women would worry about avoiding an abortion almost as much as they'd worry about avoiding pregnancy, so this idea that abortion frees you up to enjoy sex is truly strange.

If abortion were not safe and legal, would people stop having sex? No, they would assiduously try to avoid unwanted pregnancy just as they do now, or they would be careless just as they are now. Sexual freedom is purchased by contraception, not abortion. I might add that condoms plus the pill is an almost foolproof method of avoiding pregnancy, statistically speaking. This is the "backstop", not an abortion that even pro-choicers recognize is a horrible trauma to go through. Of course, if your friends are worried, as you say, about "drinking" their way into an unwanted pregnancy, it's no wonder they look at this differently. They are not in the majority, though.
7.20.2009 11:22pm
John Moore (www):
Dilan, how does

"Duress is not a defense to murder", but someone under coercion that meets the legal standard for duress doesn't form the malicious intent necessary to commit murder anyway. Rather, duress is a defense to the lesser homicide charges that someone can be charged with in that situation.

Square with the quote that I gave? That quote makes it quite clear that if I kill someone while under duress, I am going to be charged with and convicted of homicide - if not "murder," then some lesser but very serious offense.

A.R.S. § 13-751(G)(2) provides that it shall be a mitigating circumstance where “[t]he defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.(1)


You claim that if I kill an innocent under duress in order to prevent the rape of my child, I will walk free. As the above shows, that is simply not true, nor should it be.

John, here you are just baldly lying. Stand your ground laws DISPENSE with the requirement of a showing of a threat to your life. That's the whole point. You can ALWAYS get a self-defense defense when your life is actually threatened, in your home or otherwise. The point of stand your ground laws is to permit you to assert the defense EVEN IF YOU CAN'T PROVE AN ACTUAL THREAT. That's what it means to "presume" a threat.


No, Dilan, I am not lying, but you are starting get a little crazy.

As I carefully explained, the reason is so that you don't have to prove a threat, because the threat is presumed by the circumstances. Furthermore, you have done nothing to support your original premise - that this is motivated by a property interest - since the law does not related to property in any way.

And there are also laws that don't require you to flee your home EVEN IF THERE IS NO THREAT OF DEADLY FORCE. They are two different principles. And the second one isn't about changing the burden of proof; it's about the property right in your home being sufficient to trump the burglar's interest in his or her safety.

Again, you are confusing your ideology with the facts. The laws were implemented because an intrusion into an OCCUPIED home is clearly a threat, and the legislature wanted to make sure that nobody could be second-guessed on that. If YOUR premise were true, the law would apply to unoccupied residences which you own, or car theft of your car. But it doesn't. In Arizona, deadly force is justified to stop burglary of an occupied residence (whether it's yours or not) and arson of an occupied residence. It most certainly is NOT justified to stop theft.

Please explain why it does not, given your "property" theory?

On to your next failure of logic 101:



Dilan:
Sex only has the consequence of pregnancy if we as a society decides that it shall have that consequence.
John:
If that statement were true, you wouldn't have to argue for abortion "rights" because the only people who ever unintentionally got pregnant were raped.

John, again, it is true. We as a society HAVE separated sex from pregnancy. John, for goodness sakes, that's exactly what Roe did!

Which leads us to believe that by some sort of magic, SCOTUS has managed to keep sex from ever causing pregnancy - because otherwise, we would not need abortion rights (because, I re-iterate, nobody would get pregnant unless they wanted to).

For goodness sake, just read the statements and quit injecting context that isn't there!

-------------------

As for your posting of Florida law, it exactly upholds what I say. Notice, again, the word occupied. That word utterly destroys your claim that this is about property.

Utterly.

Case dismissed.
7.21.2009 12:41am
theobromophile (www):
John Moore: thanks for taking this up in my absence.


But abortion is a legal issue, and it's one thing to say that we might decide to restrict abortion based on claims of fetal life (as I said, I think such claims are quite wrongheaded, but this is an issue where reasonable people disagree) and quite another to say that we might decide to restrict abortion because John Moore and Theobromophile happen to think that the desire of a woman to have a sex life that they don't approve of doesn't count or isn't important.

Dilan, you mendacious douche, that is NOT our issue, as you are well aware. When we acknowledge that foetal life ought to be protected, YOU are the one who brings in the issue of women's sexuality. John and I are not imposing anything on anyone; we are simply pointing out that, in 2009, it's really freaking easy to avoid unwanted pregnancy.
7.21.2009 12:58am
theobromophile (www):
Oh, heavens. Dilan is eternal proof that most lawyers went to law school because someone once told them they were smart but they flunked out of Biology 101.
And you can't argue against that by simply assuming your premise that pregnancy is the consequence of sexual activity. No, it isn't anymore.

Dilan, since the purpose of an abortion is to end a pregnancy, abortion does not change the sex-pregnancy connection, only the sex-childbirth connection.

Obviously.
7.21.2009 1:01am
theobromophile (www):
... of course, a "ditto" to John Moore, who correctly pointed out that Supreme Court rulings do not change science.

It's much like Congress attempting to legislate longer days into existence with Daylight Savings Time. Oddly, the sun has yet to acknowledge a resolution of the United States Congress.

All of this (plus Dilan's one-time assertion that I, a former nanotechnologist, am "anti-science" because I know that foetuses are not armadillos or plants) brings to mind my friend's line on abortion: "I'm too pro-science to be pro-choice."
7.21.2009 1:05am
theobromophile (www):
A serious point, now that I'm done LMAO at Dilan....

Dilan: you have expressed an amazing level of ignorance about my life - first accusing me of being a man, then anti-science, then a man with bitter ex-girlfriends, to an anti-feminist, a person who has never read her Friedan, a liar, and, now, someone who does not understand the realities of intimate partner abuse and how it relates to female sexuality.

Rather than make (hugely erroneous) assumptions about my background, my knowledge, or my being, try asking questions if you are actually interested in an honest debate (or even in converting people to your side).

You are assuming that I have no knowledge - personal or institutional - of intimate partner abuse that would colour my views on female sexuality and abortion.

My personal experiences aside, let's go with simple common sense: but not for the chastity movement, how would a woman in a bad relationship, whose intuition is screaming at her to not sleep with this guy, refuse sex? If sex is but recreation, is not refusing it as logical as refusing an ice cream?

When you sneer at women who wait (like myself) for their "fucked up" (I think that was your terminology) views on sex, aren't you ensuring that women in abusive relationships have no grounds on which to refuse sex in the first place? Aren't you giving them two choices: make an abusive relationship sexually active, or have one's abuser (who trashes a woman's psyche on a daily basis) use the "crazy" and "repressed" card?

In order to believe that abortion actually helps women in violent situations, wouldn't you have to believe that women suffer no ill effects from either unwanted sex or coerced abortion? Isn't that untenable at best?

Wouldn't you have to believe that is easier, not harder, to leave a sexually active relationship than a chaste one?
7.21.2009 1:33am
Dilan Esper (mail) (www):
How is it inaccurate to characterize forgetting pregnancy worries and focusing on enjoying sex as "carefree"? Nothing about one-night stands or single women is implied by this term. You're describing abortion as a kind of reassuring last resort that frees women from stressing too much about contraceptive failure so that they can better enjoy sex. I don't know any woman, pro-choice or otherwise, who looks upon abortion that way, so yes, I think your peer group is extremely odd if this is how they see it.

Suzy, you are being much too callous in recharacterizing my argument. I am not saying that it's all flowers and bliss because women know that they can always get that abortion. Rather, I am saying that: (1) unwanted pregnancy is a huge anxiety and concern among many sexually active women, (2) contraceptives, though they work, do not work perfectly, and (3) legal abortion provides a backstop that women can rely on as a last resort when contraception fails and thus reduces the anxieties of sexually active women that their efforts to prevent pregnancy will fail.

Suzy, there are millions of pro-choice women who have never had an abortion. Why do you think they support abortion rights? It's partly because of this-- legal abortion facilitates the sex lives even of women who never take advantage of the right.
7.21.2009 1:36am
Dilan Esper (mail) (www):
Abortion, by contrast, is a terrible thing even if you think it should be legal.

Many pro-choicers believe this, and I respect the belief. However, early term abortion is not really that terrible a thing. The early term fetus / embryo simply is not a conscious being with a will and desire to live, and it has the approximate moral status of a tadpole.

You can talk about the various complications of pharmaceutical and surgical abortions as things to avoided, and they certainly are, and you can further talk about the fact that the subset of women who find abortion morally troubling would certainly wish to avoid it, and that is true as well. But there's nothing at all immoral about killing a non-viable fetus early in the pregnancy.

Late term abortions, in contrast, are a terrible thing, as a post-viable fetus has a much stronger claim to having the same or similar rights and interests as a born baby. Thankfully, they are basically only performed for serious and compelling reasons. The vast majority of abortions are early term abortions that are no more immoral than stepping on a cockroach on a sidewalk.
7.21.2009 1:40am
Dilan Esper (mail) (www):
Square with the quote that I gave? That quote makes it quite clear that if I kill someone while under duress, I am going to be charged with and convicted of homicide - if not "murder," then some lesser but very serious offense.

John, a person under duress does not generally form the malice that is an element of a murder charge. (One could come up with law school hypotheticals where one did, but those are law school hypotheticals.) And duress, while not a defense to murder, IS a valid defense to lesser homicide charges (i.e., manslaughter).

As I carefully explained, the reason is so that you don't have to prove a threat, because the threat is presumed by the circumstances.

John, you know this is complete crap. You would never agree to an abortion statute that simply conclusively presumed that the fetus was a threat to the mother's life and therefore authorized abortion. You wouldn't say "well if the statute says it, I guess a fetus is a threat". You would say, quite correctly, that such a statute privileged the woman's interests over the fetus' interests.

That's what the Florida no retreat law does. It privileges the property interests over the safety interests by PRETENDING that all home invasions are life-threatening, with the result being that you don't actually have to prove that your life was in danger.

John, let me put it this way. Every single respected law professor and judge in the country-- including those supportive of the law-- would disagree with your argument that the statute doesn't privilege property rights over safety. Every single one. That's basically exactly how you write a statute to privilege property rights over safety.

You aren't a lawyer, and if you had gone to law school, you would have learned about irrebutable presumptions and what they really mean. Hint: they DON'T mean that whatever was presumed actually happened. If you want to get some picture of this, you might read Scalia's opinion in Michael H. v. Gerald D. You'll see that conclusive presumptions are a way AROUND factual gaps, not a finding of facts.

Which leads us to believe that by some sort of magic, SCOTUS has managed to keep sex from ever causing pregnancy

That's not what they prevented, John. SCOTUS prevented sex from requiring women to carry and bear unwanted children, by permitting the TERMINATION of pregnancy. Those are the two concepts that were separated, so as result, an unwanted pregnancy is no longer a consequence of sex.

So when you say "sexually active women should live with the consequences", perhaps they should, but that doesn't mean that one of the consequences is being saddled with an unwanted pregnancy. We got rid of that one.

As for your posting of Florida law, it exactly upholds what I say. Notice, again, the word occupied.

John, you'd fail Criminal Law 101. There are a zillion situations in which (a) premises are occupied and (b) the burglar poses no threat to the occupants' safety. And under self-defense law, there was no privilege to use deadly force. Now, in that situation, in Florida, you can, even if all you are doing is protecting your property.

Indeed-- and this shows how completely clueless you are when it comes to the law, John-- you can actually testify on the stand that you were in no danger and only shot the guy to protect your property, and as long as you prove someone was in the house at the time, you still win on your self-defense claim. How is that not privileging property rights over life?
7.21.2009 1:52am
Dilan Esper (mail) (www):
Dilan, you mendacious douche, that is NOT our issue, as you are well aware. When we acknowledge that foetal life ought to be protected, YOU are the one who brings in the issue of women's sexuality. John and I are not imposing anything on anyone; we are simply pointing out that, in 2009, it's really freaking easy to avoid unwanted pregnancy.

Theo, in fact, if you read the thread, you specifically ridiculed the desire of women to have a sex life without conceiving children. You said they could have oral sex, you said it was no more important than walks on the beach.

You can call me a douche all you want, but you can't back away from your own obsession with belittling the sexual desires of women with different values than you hold.
7.21.2009 1:53am
Dilan Esper (mail) (www):
of course, a "ditto" to John Moore, who correctly pointed out that Supreme Court rulings do not change science.

They don't have to. What they did was make forced pregnancy no longer be a consequence of sex.

Let me put it this way, Theo. Pregnancy can still be a physical consequence of sex. But being forced to carry that unwanted pregnancy for 9 months and have it upturn your life is no longer a consequence of sex. Not because SCOTUS "changed science", but because they legalized a procedure that took away that consequence. You and John argue as if that never happened, but it has, and it means that arguments that say that women should bear the consequences of sex fall flat. They do bear the consequences of sex. It just happens that the one consequence you WANT them to bear-- 9 months of hell and a baby they don't want-- has been eliminated from the menu of consequences of sex.
7.21.2009 1:56am
Dilan Esper (mail) (www):
You are assuming that I have no knowledge - personal or institutional - of intimate partner abuse that would colour my views on female sexuality and abortion.

Theo, you didn't show any. You seriously argued that banning abortion would cause battered women to leave their spouses. Nobody who actually knows anything about that subject believes that, Theo.

My personal experiences aside, let's go with simple common sense: but not for the chastity movement, how would a woman in a bad relationship, whose intuition is screaming at her to not sleep with this guy, refuse sex? If sex is but recreation, is not refusing it as logical as refusing an ice cream?

Theo, the problem isn't refusing or not refusing sex. It isn't the sex that is abusive (necessarily), it's the relationship. And often times, these women already have kids, come from traditional upbringings and religions that encourage women to stay with their husbands and forgive violence, are estranged from support systems (parents, relatives, etc.) who might be able to intervene, aren't in a position to trust the police (for instance, due to immigration status), etc.

They can refuse sex or not refuse sex, and they are still in the relationship. The problem is they can't leave. And pregnancy makes things worse. Being able to quietly take care of it without their husband/boyfriend knowing is crucial for these women's safety.

These women have probably never heard of your "chastity movement". Nor are they likely particularly concerned about chastity-- staying alive and protecting your kids tend to get prioritized over such things. And there's no reason to think that a chastity movement would help them escape their relationships. Meanwhile, the evil awful actual feminists who support sexual freedom and reprodutive rights are working to actually provide battered women more resources, including shelters, changes in the law, better treatment by the police, easier divorce, restraining orders, and all sorts of things that actually help them leave.

Chastity is simply not the issue with battered women, Theo. Chastity is not the solution to the world's problems, and this is a good example.

When you sneer at women who wait (like myself) for their "fucked up" (I think that was your terminology) views on sex, aren't you ensuring that women in abusive relationships have no grounds on which to refuse sex in the first place?

Theo, it was pro-sexual freedom pro-reproductive rights actual feminists who got rape laws changed to make marital rape a crime. There isn't a single pro-choice feminist in America who doesn't think women have the right to refuse sex. Where do you get this stuff from?

Sexual freedom is not about everyone doing the same thing. I do personally think that human sexuality is healthy and important for everyone, and thus I do think you have really fouled-up views about sexuality. But you know what? I also think you should be absolutely free to pursue your chaste life, however screwed up I think it is. And you should be absolutely free to advocate that lifestyle to others. And if anyone, at any time, tried to force you to do something you didn't want to do, I would want the law to come down on that person like a ton of bricks.

The right to have sex and the right not to have sex are the same right, Theo. They both rely on us keeping the government out of decisions about how women conduct their sex lives. And they both rely on the government not making judgments about whether your "chastity movement" is right, the Catholic Church or evangelicals are right, or feminists are right about sexuality. Rather, just create the free space for all women to pursue or not pursue whatever sex lives they want. Legal abortion helps create that free space.

Theo, on a personal level, I think that repressed sexuality is extremely bad, and I don't think you've done yourself any favors during these debates in terms of disproving that. But not a single feminist is arguing that you should be stopped from doing what you want with your life. Not one. This siege of libertine pro-choicers coming crashing down on your chaste lifestyle that you perceive doesn't exist except in your own mind. In the real world, pro-choicers are just trying to make sure that every other woman doesn't have to live the way Theobromophile does.
7.21.2009 2:07am
John Moore (www):
John, let me put it this way. Every single respected law professor and judge in the country— including those supportive of the law— would disagree with your argument that the statute doesn't privilege property rights over safety. Every single one. That's basically exactly how you write a statute to privilege property rights over safety.

Once again, Dilan, you avoid the critical point: the law protects ANYONE who takes that action, whether or not they own the property. Furthermore, it does not protect anyone who kills the burglar if there is nobody in the house. The intent of that could not be more clear - except to you. Hence you are lying about the law professors.
Indeed— and this shows how completely clueless you are when it comes to the law, John— you can actually testify on the stand that you were in no danger and only shot the guy to protect your property, and as long as you prove someone was in the house at the time, you still win on your self-defense claim. How is that not privileging property rights over life?

You destroy your own argument by citing " as long as you prove someone was in the house at the time". That clause makes it obvious to all but you the clear intent of the law. That one could get off of a charge after testifying they were not in danger is a side effect of the law, not the intent.

HERE IS A DIRECT CHALLENGE:

1-Explain why, if the law is about property rights, it REQUIRES that the property be occupied before the defense is valid?

2- Explain why, if the law is about property rights, it applies to NON-OWNERS of the property that is occupied?
You aren't a lawyer, and if you had gone to law school, you would have learned about irrebutable presumptions and what they really mean. Hint: they DON'T mean that whatever was presumed actually happened. If you want to get some picture of this, you might read Scalia's opinion in Michael H. v. Gerald D. You'll see that conclusive presumptions are a way AROUND factual gaps, not a finding of facts.


Dilan, this may come as a shock to you, but I don't HAVE to go to law school or be a lawyer to know the meaning of "irrebutable presumption", and I don't have to be a lawyer to understand why a legislature would put such things into a statute. Note that fellow commenter, gun rights enthusiast, and software engineer Clayton Cramer, who also didn't go to law school, wrote a Law Review article cited by SCOTUS in the Heller decision.

Given your demonstrably poor skills at logic and argumentation, I wouldn't be waving your law school experience around here. It's pathetic.
7.21.2009 2:26am
Dilan Esper (mail) (www):
John, you act as if it is either-or. The law obviously DOES protect some self-defense interests. But it also protects property in situations where there is no legitimate self-defense interest. That, again, is the whole point of creating a conclusive presumption-- so that the defense is available even when there is no threat to property.

Look, the bottom line is that many pro-gun rights conservatives think protecting one's home is very important, so they pushed for a law that could allow people to use deadly force in certain situations to protect their property. It is the same reasoning that caused the California Supreme Court to rule in KFC v. Superior Court that property rights trump public safety in the case of the duty protect one's business invitees. This isn't exactly an unusual form of legal reasoning. It just happens that clueless pro-lifers act as if the law never privileges anything over human life when in fact it does.

(Indeed, even mere money can be privileged over human safety. See Richard Posner's classic Economic Analysis of Law for details.)

As for my experience as a legal scholar, I am certain I have published 3 more law review articles than you have, and both my amcius briefs and my law review articles have been cited by the California Supreme Court. I'd say that's a lot more than you can say. As for Clayton Cramer, despite deep disagreements with him, I have a lot of respect for the guy. He tries to get his facts right even when they don't support the argument he'd like to make. He's just got a blind spot when it comes to his homophobia.
7.21.2009 2:33am
theobromophile (www):
Dilan, you ignorant slut, I was ridiculing YOU, not women.
7.21.2009 2:44am
theobromophile (www):
Oh, Dilan. You say that I'm repressed like it's a bad thing. Personally, I just thought it was about waiting for a husband, and then letting the love of my life - the man who sanctified our relationship above all others - be the lucky recipient of all that "repression."

The way I figure it, I'll be ten years into marriage and still making up for lost time while all of those "sexually liberated" women are having headaches. :)

Substantively:

I never said that feminists don't believe that women shouldn't have the right to refuse sex. If you are that illiterate, it reflects badly upon USC Law.

My point was that they do not have the grounds (i.e. rationale) to do so. It's much like refusing food - certainly, one has the right to control one's own body, but, objectively, the actions taken in such control can border on the irrational. Likewise, with sex, a lot of men treat refusal as irrational and push harder to overcome it.

As I have mentioned, the only men to accept my sexual choices without a fight are pro-life. They all "get it," so to speak.

By the way, if abused women haven't heard about the chastity movement and are getting knocked up by their jerk boyfriends, well, then, wouldn't the solution be to spread the word about this chastity thing, rather than just having women be used as their abuser's sex toys?
7.21.2009 3:02am
John Moore (www):
Dilan,

The Cal Supreme Court ruling that you cite (KFC) as being about property rights states, right at the start, its reasoning:


Recognition of a duty to comply with an unlawful demand would be contrary to public policy as it would encourage similar unlawful conduct (emphasis added).


The court also cited the following in a footnote - explaining the public policy motivation:

The Indiana appellate court concluded that resistance was in the public interest even in situations where it resulted in harm to third parties. "There is, and must continue to be, a great public interest in the prevention of crime and in the speedy apprehension of criminals. To that end the victim of a crime, as vicious as armed robbery, during the course of such criminal act, is excused, justified and to be held privileged from ordinary resistance which might otherwise cause actionable damage."
7.21.2009 3:07am
theobromophile (www):
By the way, I think that we can safely get rid of the b.s. notion that pro-aborts don't belittle women's sex lives:
But you know what? I also think you should be absolutely free to pursue your chaste life, however screwed up I think it is.

In all seriousness: Thank you, Dilan. I've been waiting a long time for someone to be honest enough to admit that the abortion movement is a full-frontal assault on women who don't act like sex objects.
7.21.2009 3:09am
John Moore (www):
continuing...

In other words, the opinion has nothing to do with property rights, contrary to your assertion.

Once again you have been shown to be, to put it charitably, incorrect on this matter of law.
7.21.2009 3:11am
Suzy (mail):

However, early term abortion is not really that terrible a thing.

I beg to differ, and not simply because of the moral issue you raised (and that I had not raised). You and I have not had abortions, so I will trust the testimony of those who have, that it really is a terrible thing. Even in the early stages. Even in the pill-taking version.

Apparently this is why you see it as a "backstop" that frees women to enjoy sex, since it is not something a woman would want to avoid almost as desperately as the unwanted pregnancy itself. (Assuming she's open to the idea in the first place.)

The argument, however, is that women will not be freed to "focus more on enjoying sex" because abortion is available as a last resort. Rather, if that happens, it's because contraception is available. Likewise, if abortion is not available, they won't stop having sex. I imagine they'll concentrate even harder on using contraception effectively, in that case. Contraception is the backstop, maybe including the morning after pill. I see no evidence that women view abortion this way. Indeed, one of the few cases most pro-choicers and pro-lifers agree on is how awful it is when women treat abortion as simply another more extreme form of contraception, after the fact.
7.21.2009 4:26am
alredding (mail):
I still can't believe that no one has mentioned the fact the UNITED STATES has the most APPALLING maternal fetal outcomes in the developed world! We rank 43 - dead last for maternal outcomes and 42 second to last for fetal outcomes. Only Cuba has a higher infant death rate than the US... It is statistically SAFER to give birth in BOSNIA than in the United States. 98% of our births happen in the hospital with an Ob/Gyn. 1% are born at birth centers and one percent are born outside the hospital, that includes car births, taxi cab births, home births with midwives and home births w/o midwives. The US spends THE most money of ANY health care system on the OB/GYN circuit and yet we have the most deaths. Holland statistically is the safest country in which to give birth and 75%-80% of their births happen at home. When more women started giving birth w/o Midwives in the UK the Health Care system said, "We're doing something wrong. What can we do to improve." When it started happening in the US, ACOG called women stupid and irresponsible. Our C-Section rates are as high as 50% in some hospitals. The World Health Organization has found that beyond 15% and the rate of maternal death goes up unnecessarily. Why are we trusting this profession to be upheld as the guardian of infant and maternal safety???
7.21.2009 8:35am
alredding (mail):
Dilan,
I really wasn't planning on getting involved in the whole debate going on with you and like 4 other people, but I do have question. Maybe you addressed it and I missed it somehow.

If I, as a woman want to enjoy a wonderful, pregnancy free sex life and get all the abortions I want, what consequence does the man ever have? I am left, myself, to bear the burden of a drug or surgical procedure to end the pregnancy and the guy who knocked me up doesn't so much blink an eye. Or worse, what if I decide that I want an abortion after telling the guy involved and he wants the baby... then what he wants doesn't even matter? Since the baby is half his, should he not have a say in what the outcome of the baby's life is? Maybe then, the guy could pay her to carry the baby to term as in a surrogate agreement? Why does all the responsibilty of pregnancy rely on the woman? Couldn't the man ensure his sperm are under control by getting an "easily" reversible tying of *his* tubes??
7.21.2009 9:48am
A.:
If the woman was refusing ultrasound, and monitoring, then on what basis were they recommending a c-section? Just because they thought there might be a danger?

Why should a woman be neglectful because she refused to sit still for an epidural? Someone stated that it was a necessary procedure. It absolutely is not. What right does hospital staff have to force pain medication upon someone? Or fetal monitoring for that matter, or ultrasound. It is all just diagnostic.

If any of you are women, you should realize that it is VERY uncomfortable to sit still through labor for these procedures, especially if they want continous monitoring. That is the reason for a lot of csections- labor does not progress because the woman is forced to lay still for these procedures. All of that raises the risk of fetal distress and a csection. Complications from csection are more common than you might think, and the risk from death due to a csection are very real. Does a court have the right to tell me that I have to accept a risk of MY death to save a child that may or may not actually be in danger?

Do I feel bad for the medical personnel who had to "deal" with this woman? NO! They are HER employees, not the other way around. They are being paid to recommend and perform a service, NOT to force her into them. In this case, it is the doctors who are being difficult and uncooperative (for not respecting the patients decision) NOT the woman. If doctors truly think they have this much power, then perhaps they need to get out of the profession. A doctor is an employee to me- not my god, nor master that I must obey as if his/her word is everything- trustworthy over my own survival instincts.

c-section rates are now up to 30%. Are we truly to believe that 1 in 3 women can't give birth? Does 1 in 3 children really die or suffer damage without a csection? I highly doubt that. Midwives for example typically have a csection rate of 5% or less.

Just because someone refuses to trust a doctors judgement does not mean that they are being neglectful. During my first birth, I was recommended a csection. I fired the doctor right then, because I did not trust him. I was cared for by the department head. Big suprise, had a vaginal birth with no complications. Not everyone realizes that you can fire the doctor caring for you. Had I not been given another doctor, I would have left and went to another hospital. Is that my right? Yes, it most definately is. No one can tell me that I do not have the right to leave the hospital.

If we do not take care of this problem with the government taking control, we won't have much of a country left. I for one, will leave. America is not a communist country, where we much do as we are told like good little sheep.
7.21.2009 12:17pm
Roger Schlafly (www):
Had I not been given another doctor, I would have left and went to another hospital. Is that my right? Yes, it most definitely is.
Yes, it was your right, but you were lucky that vindictive hospital staff did not conspire with CPS to take your baby away, as happened in this case.
7.21.2009 12:46pm
Dilan Esper (mail) (www):
Dilan, you ignorant slut, I was ridiculing YOU, not women.

Theo, you were comparing the desires of women for a sex life without worrying about having to carry and bear a child with long walks on the beach. In other words, the form that the ridicule of me took was to say that the desires of women who think differently than you do about sex are not very important.

Oh, Dilan. You say that I'm repressed like it's a bad thing. Personally, I just thought it was about waiting for a husband, and then letting the love of my life - the man who sanctified our relationship above all others - be the lucky recipient of all that "repression."

Theo, this is now really off-topic, but sex is a learned skill. It requires technique, a knowledge of your own anatomy and that of the opposite sex, experience, etc. People who think that by saving themselves for marriage they are giving their prospective spouses some big gift are wrong-- what they are giving their spouses is a very inexperienced lover who may not know what he or she is doing.

But beyond that, virginity isn't a "gift". It's a status. Sexual intercourse is exactly the same with a non-virgin than it is with a virgin. Virginity doesn't improve sex in any way (if anything, it makes it worse because of the relationship between sexual experience and sexual technique). If a person wants to remain a virgin for their own reasons, that's fine, but they shouldn't think that they are doing their future spouse some huge favor.

My point was that they do not have the grounds (i.e. rationale) to do so.

Theo, you don't need grounds to refuse sex. A woman can refuse sex for any reason she wants to or no reason at all. (So can a man.) You can say a lot of about the sexism and general cluelessness about women of the average American male, but this is actually something that just about every sexually active male is quite aware of. No means no. She doesn't have to give you a reason.

So your argument is a contrivance that there are all these women out there who really don't want to have sex and are just looking for reasons to turn men down. In fact, women who want to turn men down turn them down.

Remember, as well, that the flip side is that there are lot of women who want to be sexually active and are fighting against the cultural presumptions created in part by the abstinence and pro-life movements and their religious backers. That results in a climate of fear, shame, and moral condemnation for young women who love their boyfriends and want sexual satisfaction. Again, my position allows you the full space necessary to live your life the way you see fit. I may carp from the sidelines because I don't think much of your choices, but I will defend to the death your right to choose to be chaste. Does your position allow those young women who are sexually active the full space necessary to live their lives according to their choices? No, it doesn't.

By the way, if abused women haven't heard about the chastity movement and are getting knocked up by their jerk boyfriends, well, then, wouldn't the solution be to spread the word about this chastity thing, rather than just having women be used as their abuser's sex toys?

Theo, you can say this a million times, but you just don't get it. Sex is basically incidental to abusive relationships. Some of these couples don't even have sex with each other anymore. Others do, but the sex is consensual and has little to do with the beatings. Some involve marital / significant other rape in situations where the woman would love to be able to say no but feels trapped for reasons that the chastity movement cannot solve, e.g., because the abuser threatens to leave with the kids or get her deported.

The problem with these relationships is not "if only the woman had some group that could provide her with reasons to refuse sex". It's a completely different problem, and your solution makes no more sense that it would make to give a poor man who needs transportation to and from work a refrigerator. A refrigerator's a nice thing to have, but it doesn't solve the problem.
7.21.2009 1:37pm
Dilan Esper (mail) (www):
The Cal Supreme Court ruling that you cite (KFC) as being about property rights states, right at the start, its reasoning

John:

For a good analysis of KFC and the balancing of property rights and safety, see Esper &Keating, Abusing "Duty", in the Southern California Law Review a couple of years ago.

Seriously, the funny thing about this is that the torts scholarship I have worked on with Greg Keating essentially argues that the tort system NEEDS to prioritize people's lives over property rights and economic interests, and criticizes Posner and KFC on those grounds. So I've read all this stuff.

As I said, though, it's only clueless pro-lifers who seem to think the law never does this and that life always outweighs anything short of another life. And you don't really know anything about the law and haven't studied it, so you believe thme.

You might look at some of the works that Professor Keating and I cite in the footnotes in Abusing "Duty", such as Thomas Schelling's work, or Kip Viscusi's. You'll see that the principle that you are so committed to is actually nowhere enshrined as the law, that other interests outweigh your right to life all the time, and that abortion law isn't really inconsistent with the rest of the American legal fabric one bit. Maybe you want to argue that's all wrong, but that would be a far more radical critique than even the one that Professor Keating and I made, and you wouldn't have a lot of support from legal scholars, including pro-life ones.
7.21.2009 1:45pm
Dilan Esper (mail) (www):
In all seriousness: Thank you, Dilan. I've been waiting a long time for someone to be honest enough to admit that the abortion movement is a full-frontal assault on women who don't act like sex objects.

Theo, there's a difference between criticizing something and making a "full frontal assault" against it.

Take homosexuality. Some people just think it is wrong but also think that gays and lesbians should be equal before the law. They just want to reserve their right to say that homosexual conduct is immoral and that God forbids it and it is unnatural and sinful.

Other people think we should ban gay sex, ban gays from the military, ban gay marriage, ban domestic partnerships, and otherwise discriminate against gays in numerous ways.

The latter is what is known as a full frontal assault. The former is criticism.

I think you are really screwed up about sex, and I think the law absolutely protects your right to believe, express, and practice according to those beliefs. In other words, I am criticizing you, but I am in no way assaulting you.

You really need to be less paranoid about pro-choicers. Theo. Nothing the pro-choice movement does can possibly affect your right to be chaste. Nobody's out to get you. It's just that a lot of folks think you are wrong.
7.21.2009 1:48pm
Dilan Esper (mail) (www):
Apparently this is why you see it as a "backstop" that frees women to enjoy sex, since it is not something a woman would want to avoid almost as desperately as the unwanted pregnancy itself.

Suzy, even women who are diligent about contraception and never want to have an abortion if they can possibly avoid it sometimes have abortions.

That's exactly what a "backstop" means. It's the last resort. It's to be avoided. Many women think it's immoral. I don't think it particularly is (unless it is done late term), but I still think it's costly and invasive and embarrassing and therefore there are all sorts of reasons to try to avoid it.

But it's there, in the last resort, when the woman has no other alternative and needs to terminate the pregnancy. And knowing it is there allows women to be a lot less freaked out about the failure rates of contraceptives.
7.21.2009 1:50pm
Dilan Esper (mail) (www):
If I, as a woman want to enjoy a wonderful, pregnancy free sex life and get all the abortions I want, what consequence does the man ever have? I am left, myself, to bear the burden of a drug or surgical procedure to end the pregnancy and the guy who knocked me up doesn't so much blink an eye.

It's a silly question, because most sexually active women work very hard to avoid getting pregnant. There are women who get repeat abortions, and that is a troublesome fact that pro-choicers don't always acknowledge, but still, there are probably at least 50 or 60 million sexually active women in the US and only 1.3 million abortions a year, which seems to indicate that the vast majority of those women are either having wanted pregnancies or avoiding pregnancy.

In any event, though, the whole point of liberalized abortion laws is to take unwanted childbearing as a consequence away from the women who are going to have to bear those children. The effect on men is secondary; men benefit when their girlfriends abort unwanted pregnancies, but they also still face fatherhood as a consequence in those situations where the sexual partner decides to keep the baby. That's unavoidable-- it's a woman's decision because women get pregnant and men don't.

But beyond that, we shouldn't think about involuntary parenthood as a consequence of sexual activity. We have liberalized contraception and abortion laws precisely because it is a good thing to sever that relationship. We can't sever it completely with respect to men, because women have to ultimately make the decisions. But we have severed it to a great degree. Saying to men that they should be saddled with unwanted babies because they want to be sexually active is no better than saying it to women. We have the means to eliminate the relationship between sex and involuntary parenthood for women and to reduce it overwhelmingly for men. That's a good thing and we've done it, and we have to get out of the old box of thinking that just because sex = involuntary pregnancy in a state of nature, it should be the case now.
7.21.2009 1:57pm
John Moore (www):
John:

For a good analysis of KFC and the balancing of property rights and safety, see Esper &Keating, Abusing "Duty", in the Southern California Law Review a couple of years ago.


I read the article, although referring to your own article as a "good analysis" is a bit gauche. It's rather interesting, but your characterization of "property rights" is misplaced.

What you decry is a recent trend in rulings which reverse a trend towards an overly plaintiff friendly trend in cases (mostly) where the plaintiff was negligent. Many of us welcome the trend, although we would not agree with all of the cases cited.

However, your argument about KFC in particular utterly misses the point of the court ruling, and is the same flawed argument you present here. You present it in property rights terms, but the Supreme Court, which made the ruling, used public order justification. Hence you are mis-characterizing their argument, which was clearly stated and buttressed by a cite making the public order justification even more clear.

As I said, though, it's only clueless pro-lifers who seem to think the law never does this and that life always outweighs anything short of another life. And you don't really know anything about the law and haven't studied it, so you believe thme.
And it is usually only shallow thinkers who make such silly and bizarre generalizations about others.

Furthermore, you have NOT addressed my challenge at all.

I can only conclude that your forfeit the "abortion to protect the life of the mother is consistent with murder under duress" argument, since you have not and can not answer the challenge.
7.21.2009 2:55pm
Dilan Esper (mail) (www):
John:

I'm glad you read my article. I think you are ignoring the fact that the way you tell motivations is to look at desired results, not stated reasoning.

The KFC majority wanted to ensure that store owners didn't have a duty to protect their customers. They in fact cited the property rights of store owners in the majority opinion-- I don't know why you keep ignoring it, because it's there-- saying that a store owner shouldn't have to give into the demands of robbers for their money.

In other words, the store's money outweighs the business invitee's personal security.

And as I said, this isn't an isolated incidence. There's literally something like 50 books written on the subject of weighing other interests against life interest in the law, and probably 300 law review articles or more.

You might read the late Gary Schwartz's (a former colleague of Professor Volokh's at UCLA) "Myth of the Ford Pinto Case" if you really want to get deep into the weeds on this. Or anything by Kip Viscusi. Or Posner's "Economic Analysis of Law" Or Keating's "The Unreasonableness of the Hand Formula".

This is a wide-ranging and established literature. Again, you really seem to be unwilling to let go of your view that the law often privileges other interests over life. But it does. All the time. And legal scholars debate this. All the time.

This is a conversation that is much deeper and more longstanding than the simplistic claim of the pro-life movement that life outweighs everything.
7.21.2009 4:30pm
John Moore (www):

The KFC majority wanted to ensure that store owners didn't have a duty to protect their customers. They in fact cited the property rights of store owners in the majority opinion-- I don't know why you keep ignoring it, because it's there-- saying that a store owner shouldn't have to give into the demands of robbers for their money.

In other words, the store's money outweighs the business invitee's personal security.

The court gave a clear reason, and backed it up with a cite to another giving a clear reason. THAT REASON WAS NOT PROPERTY RIGHTS but rather good order - i.e. to discourage that sort of behavior.

I am sure there's lots of people on the left who write scholarly law articles proving how various decisions are all about raising evil money and property rights above life.

So friggin what?

Furthermore, you once again fail to answer my challenge, showing you unable to do so.
7.21.2009 4:45pm
Dilan Esper (mail) (www):
John, when the Court says that a store has a right not to give in to robber's demands that would be thwarted if liability were imposed, there's just no way to characterize that other than as a property rights outweigh safety argument. (See page 829 of the opinion: "We agree with KFC that no duty to comply with a robber's unlawful demands should be imposed on a shopkeeper on the theory that compliance may lessen the danger to other persons on the premises. Both article I, section 1 of the California Constitution and Civil Code section 50 recognize the right of any person to defend property with reasonable force." Also, Justice Mosk-- a very smart man who served on the Court for decades-- seemed to believe that majority was improperly privileging property rights over safety. See page 831 of his dissent.)

As for your tiresome "challenge", the argument was already answered upthread, you didn't like the answer, and there's no reason I shouldn't ignore your continued attempts to bait me into a rehash of that discussion.
7.21.2009 5:23pm