Tuesday, January 29, 2013

Hard Cases, Bad Law and Wingnut Warfare, Part 1

Have you heard the old saying, "Hard cases make bad law?"

Here's a new one: Fighting extremists makes us all radicals.

Take the Indiana case of Chinese immigrant Bei Bei Shuai.

Bei Bei Shuai was 33-weeks pregnant when she attempted to commit suicide on December 23. In a note, she wrote that she wished to kill herself and "tak[e] this baby, the one you called Crystal with me." When she did not immediately die, Shuai went out and ran into a friend who took her to the hospital where she was treated for the poison and stabilized. A week later, doctors performed a C-section and Shuai gave birth to a daughter named Angel. Over the next three days, Angel suffered bleeding in her brain and on January 3, her mother consented to remove her from life support. Over several hours and surrounded by grief counselors, Shuai held Angel while she died. Shuai then spent a month in a psychiatric hospital. On March 14, 2010, she was arrested and charged with murder and feticide.

Shuai was held without bail, since Indiana law prohibits bail in cases of murder "where the proof is evident, or the presumption is strong." In February of 2012, an appellate court held that it was not "evident" that ingesting rat poison caused the baby's death, and Shuai was released on bail. Friday, the case against her was dismissed because the coroner had failed to investigate whether other drugs given to Shuai and her child in the hospital caused the fatal brain hemhorrage.

From the beginning, this case has been a flashpoint of controversy. According to her lawyer, hospital staff had to prevent state officials from interrogating Shuai the day her daughter died. Indiana prosecutors tried to sanction Shuai's lawyers for publicizing the case to raise money for her defense. (It's pretty vindictive to complain about the headlines when your case seems ripped from an episode of Law and Order!) In fact, the state of Indiana prosecuted Shuai under one of the laws drafted after the infamous Lacy Peterson murder, making it a secondary crime to kill a viable fetus when you kill her mother. The law was never intended to cover suicides by pregnant women, but the statute says, "A person who ... knowingly or intentionally kills a fetus that has attained viability commits murder, a felony." So, Indiana Attorney General Gregory Zoeller went for it.

Maybe if abortion opponents weren't trying to pass Personhood Amendments defining a fertilized egg as a human being we could have a rational conversation about this. Maybe if a New Mexico legislator hadn't introduced a bill this week to classify abortion in the case of rape as a felony because it "destroy[s] evidence of a crime," or if Alabama hadn't prosecuted 60 women since 2006 for chemical endangerment of a child when babies were born with traces of narcotics in their systems. Maybe then those of us who support a woman's right to choose wouldn't see this as part of an effort to use the law to control women's bodies. Take this quote from Soraya Chemaly at RHrealitycheck.org.
Is this really what American’s want? There is no other conclusion. Pregnant women will all be potential criminals, their bodies considered potential crime scenes. They will deny themselves health care, endanger their lives, harm their bodies, have high-risk pregnancies. Many, many will go to jail.
It's certainly not what I want. And yet, if we can only talk about Bei Bei Shuai's case as part of a trend toward arresting women who smoke or eat junk food while pregnant, then we've allowed ourselves to get shoved into our own radical corner. Who could possibly defend what this woman did? Who could argue that a viable fetus shouldn't have some protection under the law?

If our opponents refuse to acknowledge the difference between this,

and this,

should we do the same thing?

In all likelihood, Shuai was mentally ill when she attempted suicide. An entire month of psychiatric hospitalization for an uninsured immigrant seems pretty strong evidence. My argument is not in favor of criminal prosecution of mothers. Rather, I would advocate a return to the trimester or viability approach from Roe v. Wade and the early Supreme Court abortion cases.

Thanks again, Justice Kennedy, for knocking down that firewall!

If we can't speak forcefully in favor of a bright line between a woman's right to bodily autonomy and the state's interest in protecting a future citizen, then we've given up half the field. If we allow the discussion to be about when life begins, we've conceded that the life of a fetus trumps that of a woman. And if we can't make a moral argument for abortion, we're reduced to rallying around deeply troubled women who do terribly immoral things.

Toward that end, today's $5 goes to the National Partnership for Women and Families, which supports access to abortion as part of the continuum of social and healthcare policies which allow women to participate as full citizens. We are pro-choice AND pro-child, and it's high time we take back this debate.

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