Australia: 'Zoe's law' prepares ground for US-style attacks on women's right to choose
By Pat Brewer
April 8, 2014 – Links International Journal of Socialist Renewal – The New South Wales (NSW) parliament is due to debate the final passage of the anti-woman legislation known as “Zoe’s law” [Crimes Amendment (Zoe's Law) Bill 2013]. Originally introduced by the far-right Christian Democratic Party’s Fred Nile in the upper house (Legislative Council) and later taken up by Liberal Party MP Chris Spence in the lower house (Legislative Assembly), where it has already passed, it has yet to be voted on by the Legislative Council. As yet it has not been scheduled for a vote but it is likely to pass given the support it has among many members from both major parties, the Liberal Party and the Australian Labor Party.
“Zoe’s law” (the name of a child stillborn due to a drug-caused car crash in 2009) gives legal rights to foetuses older than 20 weeks or weighing more than 400 grams. This would allow people to be charged with the criminal offence of manslaughter if they cause a pregnant woman to lose her unborn foetus. But in fact the law opens up the possibility of the pregnant woman being charged for damaging her own foetus.
Abortion is accessed under state not federal law in Australia and is contained in the criminal code in states other than the Australian Capital Territory (ACT), Victoria and Tasmania, where it is legal.
Abortion reform in Australia has been very slow despite reproductive rights having been a central feature of the women’s liberation movement from the late 1960s. It has only been decriminalised in the ACT in 2003, Victoria in 2008 and in Tasmania in 2013. In Western Australia (WA), South Australia (SA) and the Northern Territory (NT) the criminal code sets out when an abortion is not lawful and when and how it can be lawfully obtained. In NSW and Queensland (Qld) abortion is a crime for both women and doctors but common law interpretations of the criminal code have effectively made lawful abortion available. This means that the adoption of “Zoe’s law” would be especially assist attempts to change access to abortion in NSW. The law mimics US foetal homicide or foeticide laws.
In Australia, personhood is defined as viability after birth and is based on the notion of independence of the human baby to breathe, digest, etc. after surviving a successful live birth. This has been constantly under attack by the Right to Life anti-abortion group, major conservative religions and the Christian lobby. Parliamentarians elected to upper houses on a religious foundation have introduced a stream of private members’ bills to try to mimic the legislative restrictions on abortion introduced the USA.
Recent examples include:
Western Australia considered similar foetal homicide law in 2012.
In 2013, South Australia introduced similar foetal personhood law, which was defeated by one vote.
In South Australia in May 2012, Family First MP Robert Brokenshire introduced a bill to reduce the gestation period under the Birth, Deaths & Marriages Registration (Registration of Stillbirths) Act so that miscarriages would become classified as stillbirths at 12 weeks, not the current 20 weeks.
In 2012, In South Australian senator John Madden (Democratic Labor Party) has picked up on a US restriction on gender-based abortion in his attempt to remove these from Medicare funding. Regardless of the lack of evidence that such abortions are taking place in Australia, this could only be an attempt to confuse and weaken the personhood definition and undermine abortion availability.
In the case of “Zoe’s law” it is argued that there is a “gap in the law” that needs to be addressed but the NSW Bar Association argues that there is no such gap and existing legal provisions have adequate penalties (maximum 25 years) for dealing with harm to pregnant women. At present NSW law defines harm against a foetus as aggravated assault or violence committed against the mother. The Bar Association states that legislation such as “Zoe’s law” is not just an attack on women and doctors in relation to abortion but will lead to restrictions on women’s human rights. Evidence from the US experience certainly supports such a view.
US laws affecting reproductive health and rights
In January 1973 the federal US Supreme Court decision known as “Row vs Wade” ruled that abortion nationally was legal up to 22 to 24 weeks, based on a doctor’s determination of the viability of a baby outside the womb. However, the Supreme Court also explicitly rejected the claim that foetuses, even after attaining viability, are separate legal persons with rights independent of the pregnant women who carry, nurture and sustain them.
The attacks on abortion access took place almost immediately with the prohibition of federal funding for abortion (the Hyde amendment) in 1976. This disproportionally affected poorer women. A further major blow took place in 1992 when the Supreme Court passed the Casey ruling, allowing states to have a right to regulate abortion as long as they do not write laws that impose an “undue burden” on women.
Since then there has been an explosion in state-imposed regulation, especially with the 2010 electoral success at state, federal and local levels of Republican conservatives aligned with the Tea Party faction.
In 2011, 92 abortion restrictions became law in 24 states. In 2012, another 43 restrictions were passed in 14 states and, in 2013, 22 states enacted 70 abortion restrictions. In all, 205 abortion restrictions were imposed in the past three years, compared to 189 in the previous decade (2001-2010).
While some of these measures are under legal challenge federally, most are already in place and planning is underway to effectively challenge Roe vs. Wade in the near future. If that is successful then some states would criminalise all abortions regardless of the cause of the pregnancy and the woman’s wishes.
One major feature of conservative attacks is to impose the viewpoint that life (personhood) begins at the point of conception, when a sperm penetrates the ovum, not at birth. This is a much broader attack than just on abortion and the implications for women are very dangerous
Personhood measures, pregnancy exclusion laws and foetal homicide laws
There are laws in more than 38 US states that explicitly establish a separate and unequal status for pregnant women. The types of laws listed above in different ways prioritise the foetus over the pregnant woman. Pregnancy establishes a situation where women’s right to determine their health choices is marginalised by the rights of the foetus, legally defined as a person to override the women’s right to physical liberty and decision making – her personhood.
Through specific and incorrect interpretations of child welfare and drug laws, substance abuse has come to be legally regarded as child abuse or neglect. The “child” in question is a foetus with legal rights (personhood) recognised from as early as six weeks’ development.
In cases of assault on pregnant women, many states recognise a foetus as an as an independent victim from the moment of conception.
These measures have led to pregnant women being arrested and jailed, placed in psychiatric institutions or other forms of detention for a range of substance abuse, as punishment for suffering stillbirths and miscarriages. They have facilitated forcing women to have unwanted medical interventions, depriving pregnant women of decision-making rights and ceding these to governmental, medical and court or law-enforcement personnel.
The information used in this article is taken from a methodologically rigorous study of legal documents in 413 cases, between 1973 to 2005, in 44 US states and certain federal jurisdictions (Paltrow & Flavin, 2013, Journal of Health Politics, Policy and Law, vol. 38, no. 2).
In all but eight cases, women were not attempting abortion nor were they accused or charged with abortion. The vast majority of women were variously charged with forms of homicide, foeticide or manslaughter (12%); risk to the life of the unborn child or “reckless endangerment” or some form of child abuse and neglect, including failure to obtain prenatal care, the refusal of treatment orders or exposure to harmful fumes (51%); and drug possession or use (22%) or distribution (21%), where the drugs in question included a range of illicit drugs, alcohol and cigarettes. Below are a few examples:
In Florida a woman in active labour at home was taken into custody by the sheriff who strapped her thighs together and forcibly took her to hospital. This action was the result of her doctors taking out a court order to force her to undergo a caesarean. They believed her wish for a vaginal birth, having previously had a child by caesarean section, posed a risk to the life of her unborn child. While she was being prepared for surgery, an emergency legal hearing was held at her bedside to determine the state’s interest on behalf of the foetus, argued by lawyers. The woman and her husband were not given the opportunity to be represented legally. The judge compelled her to undergo surgery, which she had rejected as unnecessary. She later sued for violation of her civil rights but the federal district court ruled that the state’s interest in preserving the life of the foetus outweighed her rights set out in three sections of the US constitution. She went on to give birth vaginally to three more children without harm.
A woman in South Carolina who unexpectedly suffered a stillbirth was charged with “homicide by child abuse” based on her use of cocaine. She was sentenced to 12 years’ jail. It was later found the stillbirth was due to an infection; in 2008 the competence of her trial was questioned and her conviction was overturned by a higher court. Fearing a retrial with an even harsher sentence, she pleaded guilty to manslaughter and was released from prison. She had already served eight years’ jail.
In Utah a woman who gave birth to twins, one of whom was stillborn, was charged with criminal homicide due to her failure to have caesarean surgery two weeks earlier. This fell under Utah’s foeticide law as a death caused by a person’s action or failure to take action.
In Alaska a woman gave birth to a boy who died unexpectedly two weeks later. She was charged with manslaughter based on her use of cocaine and two related drug charges. Faced a potential 30-year jail sentence she accepted a plea bargain for the lesser charge of criminally negligent homicide. After some time elapsed the court recognised that cocaine was not the cause of her son’s death yet her conviction and sentence were not revoked and she remained in jail.
Of the 413 cases studied, 354 women were charged with one crime (86%). Of these some 295 (74%) were charged with a felony, which in the US legal system means an offence punishable by more than one year’s incarceration.
In fact the laws used in these cases are not legislatively valid at the state level and consideration of decisions that strike out or overturn such decisions on appeal to higher courts are not taken into account.
The study states that at present there are no laws criminalising a woman going to term if she has a drug problem. There is no law making women liable for the outcome of their pregnancies. There is no amendment of criminal laws to make child-abuse laws applicable to pregnant women at any stage of development of the foetus they carry and sustain. No state has altered its delivery or distribution of drugs laws to apply to delivery through the umbilical cord. No state or federal law exists that generally exempts pregnant women from the full protection of personhood (legally defined by live birth) which are affirmed in federal and state constitutions (as yet).
Legitimacy of deprivation of liberty
Women’s sentences and their deprival of liberty are based on the application of existing laws never intended for use in the context of pregnancy, which are then processed and justified by the judicial system.
The invalidity of these decisions is proven by the number of higher court of appeal decisions that dismiss or overturn the charges and sentencing of lower courts. Yet for the incarcerated women this is of little relevance given the length of time such appeal judgements take. In many cases appeals do not proceed since most women involved are poor and without resources.
Of the detainees (where this is recorded in the court proceedings) 152 women were of Anglo background (41%) and 215 were women of colour (59%), of whom the largest group was Afro Americans, at 191 (52%).
Many dismissals are based on a failure of the court process and the lack of applicability of the rules of evidence. In the majority of cases, arrest and legal action were not taken on evidence of harm to the foetus or newborn. In fact, in 262 instances (64%) no reported complications or adverse outcomes were found. Many criminal cases rested on a risk of harm with no evidence of actual harm. Despite claims of a risk of harm resulting in court orders to force medical interventions, harm failed to materialise.
Where stillbirths or infant deaths were investigated, evidence of causal links with pregnant women’s actions was not established by medical and scientific evidence. More often the causal claim rested on hearsay or opinions of non-expert witnesses.
There is major opposition by public health organisations, medical groups and experts to such penal action. They point out that it undermines maternal, foetal and child health by discouraging women from seeking care and speaking openly with their doctors and medical professionals. Yet in 70% the cases outlined, confidential medical information provided by the pregnant women was the basis of the case being reported to police by health-care providers, social workers and child protections services.
Unintended consequences?
Many argue that the dangers of laws that provide legal status to foetuses at various stages of development, such as “Zoe’s law”, are not necessary and that those who advocate and vote them into law are unaware of the unintended consequences that could ensue. Yet what the US experience demonstrates is that the reverse is true.
The legal theory practised in the 413 cases examined demonstrate that there is a very different intent involved – one that is very clearly understood and articulated by the arguments of prosecutors and judges. It is based on the view that the foetus should be treated as completely legally separate from the pregnant woman. They argue that the legal authority comes directly and indirectly from foeticide statues that treat the unborn as legally separate, from state abortion laws that include statements similar to personhood measures and often cite Roe vs Wade abortion law that is claimed to support personhood based on the viability of the foetus at a particular stage of development, ignoring the explicit rebuttal of such a position in the federal court decision referred to earlier.
But the intention of such decisions are very clear in the situation that occurred in Texas earlier this year concerning a woman’s legal right to die or cease treatment.
Laws exclude pregnant women from the right given to other people to decide that life support be stopped, or to authorise a family member to make that decision if they cannot. These are not laws from a period when women were treated as minors under the control of their nearest male relative, before they won the right to vote and to citizenship nearly 100 years ago in the US. These are recent laws enacted over the past 30 years, and accelerating dramatically over the past three to five years. They establish that women are treated differently from men, who have the right to decide what will happen to them if they become sick and cease to be able to communicate their health-care wishes. Women who may become pregnant are not free to plan their health-care outcomes, their lives and deaths.
Marlise Munoz
The recent case of Marlise Munoz in Texas is a frightening example. When she was 14 weeks’ pregnant she suffered a pulmonary embolism and was not able to be resuscitated. Her brain had ceased to function which meant that she was legally dead though the hospital was able to maintain certain bodily processes artificially.
The ultra-conservative-dominated hospital board used a Texas law that states ”a person may not withdraw or withhold life-sustaining treatment” from a pregnant patient. Where such laws are enacted, they are used to keep pregnant women alive even if in a coma or extreme pain, despite their wishes to cease treatment.
In this case, the fact that the patient was dead made no difference. Her family was refused access to take her body from the hospital emergency ward in order to bury her according to her wishes. This stand-off went on until she was 22 weeks’ pregnant, when finally, under legal pressure from the family and a political furore nationally, the hospital released her body – more than two months after she died.
According to press reports, the hospital was going to keep Marlise Munoz’s body functioning until the point of legal viability at 24 weeks outlined in the Roe vs Wade decision, when it could perform caesarean surgery on her dead body. The situation and health of the foetus given the lack of oxygen from the moment of Munoz’s death and the massive drug use and electrical shocks during efforts to revive her were not factors considered.
This was an example of the consequences of the ultraconservative viewpoint that life (personhood) begins at conception, which then carries with it limitations on the use of zygotes (the cell formed by the fertilisation of the female ovum with the male sperm), cloning, in-vitro fertilisation, forms of contraception and, of course, abortion.
This is the distortion of “personhood” that can occur in any situation in which a woman’s body is used without her permission in foetal gestation – as a receptacle used for a more important person. One could interpret this as an act of enslavement.
These examples demonstrate that women have been forced back into a situation in which the most basic gains of the first and second waves of feminism – equal citizenship and the right to make decisions about their bodies, health, life and death are ignored.
Right-wing religious legislative “gifts” dressed up in terms of sympathy for a particular woman’s personal tragedy have the opposite intention and motivation, based on an anti-women strategy.
So Australian women beware!
[Pat Brewer is a member of the Socialist Alliance.]