Monday, February 11, 2013

Hard Cases, Bad Law and Wingnut Warfare Part 2

When will a Catholic hospital argue that a fetus is not a person? When it's facing liability in a medical malpractice case, of course. Specifically, if its staff failed to perform a C-section on a dying woman, allowing the twins she was carrying to die with her. In that case, you have to be born alive to be a person, so forget about recovering any money in that wrongful death lawsuit.

The facts of the 2006 case are largely undisputed. Lori Stodghill was seven months pregnant and dying of a pulmonary embolism when she arrived at Saint Thomas More Hospital in Canon City, Colorado. It is unlikely that the hospital could have done anything to save her. A timely C-section might have saved her twins, who were considered medically viable. Because the hospital failed to intervene, they died with their mother.

Colorado courts have never accepted that a fetus could be a victim under the state's Wrongful Death statute. And, even as it acknowledged the unjust result, the Stodghill Court refused to expand the law in ways that would have farreaching consequences.
The Colorado general assembly is and has been free to extend the scope of the wrongful death statute to causes of action on behalf of unborn fetuses, viable or not. To date, it has chosen not to do so. The legislature is the appropriate place to debate and consider whether persons who have lost an unborn fetus should be able to recover and whether potential tortfeasors and their insurers should be held accountable financially for such losses. The legislature is the appropriate place to debate such issues and make social policy in a deliberate manner rather than in the context of isolated, anecdotal and perhaps sympathetic cases that might redirect concern from the broader issues.
It was just such a law, intended to make harming a viable fetus a crime, that allowed the Indiana State's Attorney to prosecute Bei Bei Shuai for her failed suicide attempt while pregnant. How can we trust state politicians to craft laws holding doctors responsible when they harm a fetus, without leaving them open to prosecution when they terminate an unwanted pregnancy? The short answer is: we can't. Not when legislators are presenting Personhood Amendments declaring that a fetus has all the rights of a person from the moment of conception. Because the debate over abortion rights warps our national discourse, we can't grant any legal status to viable babies in utero without jeopardizing women's rights to control our own bodies. So, we're stuck with unjust outcomes like this one.

As a post script to this story, Catholic Health Initiatives, the non-profit that owns Saint Thomas More Hospital, has responded to criticism of hypocrisy in truly creative fashion. Having come late to the conclusion that it was "immoral" to argue a fetus was not a person, CHI has decided to pursue a different line of argument should the case go to another appeal. After a confab with Colorado's top three bishops "to ensure fidelity and faithful witness to the teachings of the Catholic Church," their new story is that, "the Stodghill children tragically died before medical care commenced, so an emergency C-section would not have saved them." That's CHUTZPAH!

Today's $5 is for Healthy Beginnings of Colorado, to promote prenatal care.

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