Criminalizing prenatal harm

In May, U.S. District Judge John Woodcock sentenced an HIV-positive pregnant woman to just enough days in prison to coincide with the end of her pregnancy. Both the prosecutor and defense attorney had recommended 114 days, which would have allowed Quinta Layin Tuleh, 28, of Cameroon, to leave prison with time served. But the judge sentenced her to 238 days.

She had been convicted of possessing fake immigration documents. Following her prison term, whatever its length, Tuleh will be deported. The judge said he would have sentenced her to time served if she had simply been pregnant. But because she could potentially transmit HIV to the fetus, he extended the sentence. Only in prison, he reasoned, would Tuleh have access to the antiretroviral therapy that would reduce the risk of HIV transmission from 25% to 1-2%.

Judge Woodcock explained from the bench:

“My obligation is to protect the public from further crimes of the defendant, and that public, it seems to me at this point, should likely include that child she’s carrying. I don’t think that the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault. If I had — if I were to know conclusively that upon release from imprisonment a defendant was going to assault another person, I would act in a fashion to prevent that, and similar to an assault, causing grievous injury to a wholly innocent person. And so I think I have the obligation to do what I can to protect that person, when that person is born, from permanent and ongoing harm.”

The unusual sentence outraged some feminist and civil liberty advocates. Zachary Heiden of the Maine Civil Liberties Union said, “[J]ailing someone is punishment -- it is depriving them of liberty. That deprivation has to be justified, and illness or pregnancy is not justification for imprisonment.” Jessica Valenti of Feministing wrote, “I fail to see how Tuleh's inability (if that really is the case) to procure affordable, decent healthcare is an ‘assault’ against her fetus, rather than the system's assault of Tuleh.” These views, I think, while important, ignore the harm done by transmitting HIV to the child (avoidable as it is), as well as the mother's own interest in procuring prenatal care.

But how far should we go to prevent prenatal harm? Should the government intervene?

I’m discussing responsibilities to the 'unborn,' but I’m not talking about abortion. I'm interested in fetuses only to the extent that they'll become future people. If you're into rights-based language, Carson Strong, a University of Tennessee bioethicist, frames it well. He explains that a child's “birthright” is not “a right to be born” but “a right possessed by all people who are born,” namely the “right to be born free of serious impediments to their well-being” (p. 507). We have obligations to fetuses that will most likely become life - obligations we don't have to fetuses in general.

So I think the Judge Woodcock was thinking correctly about including the future child as a member of our community, even if legally speaking, the fetus is a non-item, and he over-reached judicial bounds by essentially sentencing Tuleh for assault and not an immigration violation. But couldn't the judge have found Tuleh prenatal care without depriving her of liberty? That would be ideal, but I don't think it's possible. Inmates have a right to health care due to their incarceration. The government does not have the authority to provide health care to others under its supervision (parole or probation) beyond Medicare and Medicaid, for which Tuleh would not qualify. So it appears that for Quinta Layin Tuleh and her future child, the choice was prison or HIV.

What then? It appears that the future child's best interest in being HIV-negative contradicts the future mother's interest (she did appeal the sentence) in not being incarcerated. But it’s not an either/or dichotomy of interests. Surely the mother would not want her child to suffer from HIV.

I was unsure of the judge’s decision, but I was disappointed by the reasoning of my usual allies: feminists and civil libertarians. Margo Kaplan of the Center for HIV Law and Policy, for example, accused the judge of “glibly equat[ing] being HIV-positive and pregnant with committing a crime.” Zachary Heiden of the Maine Civil Liberties Union also simplified the case: “Judges cannot lock a woman up simply because she is sick and pregnant.” Kaplan especially does not grapple honestly with the facts. The alleged offense was not being “sick and pregnant”; it was transmitting HIV.

Heiden, admirably, did offer a more nuanced view: “We are enormously sympathetic to the desire to ensure that Ms. Tuleh receives adequate health care, including prenatal care. Federal immigration law has developed in truly arbitrary and punitive ways. Here, even a federal judge could not get assurances that Ms. Tuleh would not be deported before the end of her pregnancy. He could not get assurances she would not have her medical care arbitrarily cut off. That is wrong.”

Jessica Valenti, like Kaplan, distorted the judge's reasoning and condemned the “paternalism, discrimination and misogyny that are so rife in this case.” But where is concern for the woman’s health care needs? Where is the concern for the HIV status and suffering of the future child? Wouldn't Tuleh also want her child to be HIV-negative? We have two awful options in this case: (1) the risk (moderate but not trivial) of transmitting HIV, or (2) the woman’s extra 124 days in prison (beyond the 114 days she had already served). Incarceration, even for four months, can be a degrading deprivation of liberty, but compared to HIV, it's not necessarily the worse option.

Margo Kaplan also exaggerates the case's ramifications. She wrote: “His reasoning essentially criminalizes being HIV-positive and allows the state to prison anyone with HIV simply because they have HIV and are capable of transmitting it to another. It classifies anyone with HIV as a threat to society who can be incarcerated at the whim of the state to protect public health.”

Not correct. The judge explicitly said he does not propose incarcerating any HIV-positive person who could transmit the virus. This case concerns an individual who by virtue of her immigration status would soon be deported and deprived of health care, and who could thereby transmit a life-ending illness to her future child. The judge’s use of incarceration does not apply to other HIV-positive people, or HIV-positive women, or even HIV-positive pregnant women. Poor citizens (update: and non-citizens) have access to immediate prenatal care through Medicaid. Tuleh did not.

True, Tuleh was treated as a fetal container, incarcerated for the sake of the fetus. Broadly speaking, that's worrisome and I share that feminist outrage. But freeing Tuleh would not have met obligations to the future life. It's just not possible, in Tuleh's case, to first do no harm.

The most outrageous piece, I think, was that Tuleh could not be guaranteed access to prenatal care except in prison. It’s cruel and undeserved – but not unusual – that incarceration fills this gap. We routinely address social and medical issues like substance abuse, mental illness, and poverty by incarcerating people. If the crime was "assault" or risking transmitting HIV to the child, the real perpetrator was not the woman - who had few options (if any) to access regular prenatal care - but a society that would deny medical care to the needy. The judge should throw all of us in prison.

If abortion were murder

Dr. George Tiller was murdered this week by an anti-abortion coward with a gun.

But maybe he wasn't a coward, but a bold principled warrior for the anti-abortion movement.

Suppose you believe unequivocally that "abortion is murder," just as the bumper stickers proclaim. You see would-be mothers as accomplices to murder and abortion providers as mass-murderers, with sometimes thousands more victims than the cruelest serial killers. Dr. Tiller was "the concentration camp 'Mengele' of our day," as the killer, Scott Roeder, wrote in 2007.

You also recognize that stopping this mass-murder through peaceful legal means has largely failed. Abortion remains legal 35 years after Roe v. Wade, despite the occasional successes of anti-abortion advocates (e.g., the recently repealed global gag rule, the ban on 'partial birth' abortion, the Henry Hyde amendment that screws poor women by restricting federal Medicaid dollars, etc.). Of course you'd prefer peaceful legal advocacy, but in 35 years, the anti-abortion movement has failed to reverse the law. So you begin to examine other options to combat the status quo. After all, nearly everyone believes in the occasional necessity of war and violence.

You could slow the mass-murder of the unborn by murdering just one person - and not just any person but a murderer who promises to murder again (excuse "murder" but I'm working within their paradigm). Why not pick up a gun? Most people would also murder one person to save many (that is, the person who'd be responsible for the death of many - not any random passerby) - or at least respect someone who did (or tried). In Tiller's case, it really was that straightforward. Fewer abortions will happen now that he's gone, if only because fewer doctors, fearing violence, will provide the procedure. So Tiller's murderer seems more savvy and principled than deranged. In fact, unless you believe all killing is wrong (very unlikely), the killer's actions made sense.

Abolitionist John Brown, who understood in 1859 that slavery could not be ended peacefully and organized the still-controversial raid of the federal arsenal at Harpers Ferry, might sympathize.

My question: Why did so many anti-abortion activists rush out on the Sunday afternoon of the murder to denounce the action? The National Right to Life Committee announced it opposes "any form of violence to fight the violence of abortion." Americans United for Life stated that "the foundational right to life that our work is dedicated to extends to everyone," and disowned the killer completely: "Roeder is most definitely not part of the pro-life movement." Sarah Palin wrote that "the tragedy that took place today in Kansas clearly violates respect for life."

Were they worried about their own criminal liability, perhaps for inciting violence? No, I think not. Bill O'Reilly stood by his anti-Tiller crusade (video): "Nazi stuff," "operating a death mill," "executing babies for 5,000 dollars," "if I could get my hands on him," etc. And it's certainly not that the pro-life movement actually believes in life. The same people support the death penalty (and war). Nor were they merely concerned for their image (though they were). Perhaps they condemned the murder out of respect for the rule of law. That's possible, though I imagine that abortion opponents see themselves as answering to a higher power.

No, they condemned the murder because deep down, I think, the vast majority do not actually equate the abortion of a fetus with the death of a human being. Abortion isn't murder after all. Or it's murder with an asterisk.

Still, there are always a few principled literalists who take the "abortion is murder" slogan seriously. It's terrifying to think that another abortion provider could be gunned down by yet another religious zealot. These stalwarts of the anti-abortion movement will not be swayed by appeals to women's rights. Dr. Tiller's murder has forced us to return to the basics - the dreaded "when does life begin" question and the "personhood" debate (ugh) that I'd rather see disappear - and to explain (somehow) that fetuses are not entitled or actual lives, and that while our obligations extend to future people (both in particular cases and as a society), they do not extend to potential people. And until the woman decides to carry to term, a fetus is nothing more than a potential person.

But America isn't suddenly going to come around. The mainstream "pro-life" movement has not only harnessed the power of conservative hate speech but is also politically savvy enough to have disowned its hitman, Scott Roeder. Perhaps abortion foes will one day have the courage to admit that abortion, however undesirable, is something other than murder. Until then, let's hope they continue to disregard the meaning of their slogan and the dangerous imperative it may present.

Condom teletubbies?

From the people who gave us the Kama Sutra, comes a new video that leads the way in promoting safer sex. See this 6.58-minute clip produced by the International HIV/AIDS Alliance in India with help from artists from the Nrityanjali Academy. The dancing condoms sing in Telugu in an appeal aimed at the estimated 60,000-70,000 sex workers in the southern Indian state of Andhra Pradesh. (Wouldn't it be great to see people dressed up as condoms on American television?) Besides the Indian video, be sure to check out this hilarious commercial from France.

Too much of a good thing

One of my duties as a bioethics research assistant is to monitor the news on a whole range of topics in health policy, clinical medicine, and global health. Well, here's what I found today:

Mom sues after IVF brings 2 babies instead of 1 (Sept 18, 2007)
Australian woman seeks $332,000 to cover cost of raising extra child

Wacky. The requested $332,000 would pay for private school fees and would allot $12,427 to compensate for time off work. But as my mother always says, "If one child takes 100% of your time, two children can't take any more." (She's a mathematician.) I handed the article to the professor here who specializes in health law and reproductive medicine, who said, "Good god! They should take both kids away!" He hopes the children will grow up to be fertility specialists.

Also not to be missed, check out the New York Post's article, "A 'Baby Bjorn' Sperm Crisis: Shortage hits wannabe parents." I actually saw the article in print, which had the additional headline, "Sperm Blank: City Shortage Causing Panic." Panic?! As the article reports, NYC sperm banks are running out of seed 'donated' (for $75 a pop) by tall, blond, blue-eyed people. Why? Because "the Food and Drug Administration banned sperm samples from 30 countries to prevent the spread of Creutzfeldt-Jakob disease, a rare, fatal disorder caused by eating beef contaminated with mad-cow disease." Pictured at right is a profile of one of those handsome Nordic sperm donors, named "Oluf," who quite sadly may have no more American progeny.

Love thy neighbor

I just met my new next-door neighbor - though I suppose I'm the new one here. Ann has lived next-door for 49 years. To answer the question, she counted back the time, to 1958, using children's names instead of years. Her husband died 3 years ago, but Ann has no lack of family. At 84 years old, she has 11 children, 25 grandchildren, and 3 great-grandchildren.

She and her husband - 2 people - have so far spawned 39 others.

"It's a lot of birthdays," she sighs. "I'm constantly writing checks."

For my generation in this crowded world, I doubt it's responsible to have as many as 11 children. At 6.7 billion people, and with 2.5 billion more expected by 2050, we're exploding at the seams. I'm not suggesting that Ann - born in 1923 - should have had fewer children. Back then, no one realized the world's resources could be so limited. Nor am I suggesting that her children aren't productive members of society (the number of grandkids speaks for itself, and the illustrious careers they all have). In fact, she says, all of them but Michael went to college - "but he's a good boy," she adds, lest I'd be too quick to judge him the runt of the litter. "He mows the lawn each week."

It's not easy to balance the earth's dwindling resources with procreative liberty, so I said nothing and behaved myself. When she mentioned the 11 children, I didn't even ask if she was Catholic.

Update (06/01/2008): I just came across this essay by Greg Mankiw, justifying his third child. An excerpt is below. I would if he'd say the same thing about having eleven children.

Those who fear overpopulation share a simple insight: People use resources. They eat food, drive cars, and take up space. Because resources are scarce, the only way to improve living standards, Malthusians argue, is to limit the number of people with whom we have to share these resources.

The rebuttal to this argument is equally simple: People create resources. They bring into the world their time, effort, and ingenuity. Before deciding whether world population growth is a curse or a blessing, we have to ask ourselves whether an extra person added to the planet uses more or less resources than he or she creates.

Arabs are full of stem cells

President Bush has threatened to veto any pro-choice legislation, or in his words, any measures that “allow taxpayer dollars to be used for the destruction of human life.”

A letter-writer pointed out the irony of that statement, made by a man who's burned trillions of taxpayer dollars to wage a war that's claimed thousands upon thousands of Iraqi lives.

It reminded me of a political cartoon from last summer's Israel-Hezbollah war.

Abortion & Conscientious Objection

From the UK Independent: Abortion Crisis as Doctors Refuse to Perform Surgery (April 16, 2007)

"Britain is facing an abortion crisis because an unprecedented number of doctors are refusing to be involved in carrying out the procedure. The exodus of doctors prepared to perform the task is a nationwide phenomenon that threatens to plunge the abortion service into chaos, the Royal College of Obstetricians and Gynaecologists (RCOG) has warned."

Distressing news. I'm not entirely sure what to do when health care "providers" refuse to provide. For now, I'll make an ethics-related point: I think this case reveals the inadequacy of rights-based moral thinking with respect to abortion. Many people recognize a human "right" to health that includes a women's "right" to an abortion. The Supreme Court decision on Roe v. Wade turns on a "right" to privacy. In bioethics, personal "rights" continue to dominate the moral framework; in global health and development, "human rights" has been established as the prevailing moral discourse. Yet rights-based theories fail to resolve conflicts of rights - when a women's right to choose counters a doctor's right to say: "Here I stand. I can do no other."

Because rights say little about the ethical demands of community and relationships, bolstering a women's right to choose can only take us so far. Meanwhile, as history shows, assertions grounded in rights-discourse produce intractable and bitter debates about which rights trump others. We need to understand that the work of caring involves more than respecting rights. Rather than focusing solely on individual rights, we in the pro-choice camp should aim to create institutional policies that enable both patients and health care providers to interact comfortably without compromising deeply held beliefs. To start, the British National Health Service could return to its former training structure. Doctors could then acquire wider competence across fields, and more docs would be able to perform abortions without being, as few want to be, full-time abortionists.

Some good news to wrap up the post: Portugal legalized abortion last week.

What if I had never been born?

I sometimes think: Would it have been a bad thing if I had never been born?

I corresponded with a friend this morning who, for the first-time, met his biological family two weeks ago. This friend was raised by his adopted family, but when his parents (by which I mean, his adopted parents) died, he decided to contact his biological siblings. As I think about it, I'm very happy his biological mother carried the pregnancy to term. If she had aborted the fetus who would later become the person I call my friend, then I would never have met him. At the same, though, I am a strong proponent of the legal and moral permissibility of abortion.

I don't think it's a contradiction to say, on the one hand, that the world is a better place because I was born, and on the other hand, to say that it would not have been a bad thing if the fetus-who-became-me had been aborted. Imagine lamenting that the woman who would have become my wife was aborted before birth. It's no way to live a life, and more than that, I think it represents a superficial view of how we develop our emotional intelligence, life goals, romantic interests, and personalities. I don't see why a fetus constitutes a living being (or at the very least, a living being with personhood). It is no tragedy whatsoever to abort something without personhood (or at least not more of a tragedy than to refrain from reproducing in the first place).

A friend pointed me to the following commercial (seen on the Christian Life Network; not sure why she was watching that...). It puts forward exactly the argument I reject. It's manipulative and false. Aborting a fetus is TOTALLY different from killing a person once s/he's been born. Anyway, here it is:



Part of the confusion stems from the paucity of our language. I don't really know how to refer to the fetus who would later develop into "me" except to say, "the fetus who would later develop into me." It's clumsy as all hell, but it's the best we have. I simply can't say that it was "me" in my mother's womb. There was no "me" then. People who do not exist have no a right to be brought into existence. Or put even more simply, there is no right to be born because there is no person at that point to claim that right. Now, I should note that some people, including 1.1 billion Catholics, disagree. In their view, human “souls” preexist human bodies. I wish I had a more thorough argument for why personhood does not begin with conception (I'm workin' on it). It seems self-evident to me, but I know the opposite view seems self-evident to others, so I'll have to be clearer in another post. In the meantime, take it as an assumption. There's only so much one can say at a time.

The very question here supposes that future people are lining up for their turn to be born, “as if they were waiting in the wings to be called out onstage,” as feminist philosopher Laura Purdy writes (1996: 70). But that's far-fetched. If "I" did not exist before my birth, then it makes no sense to ask whether it would have been a bad thing if "I" had never been born. Even anti-abortion folks should agree with that.

Here's another way of phrasing the argument:

Think of all the people today who are NOT being born! (Hint: It's impossible.)

Is it a tragedy that they don't exist?

Religion -> Sex -> Death?

A special edition of this month's Lancet on Sexual and Reproductive Health reports on the dire state of sexual health in the world:

[Every year,] more than 120 million couples have an unmet need for contraception, 80 million women have unintended pregnancies (45 million of which end in abortion), more than half a million women die from complications associated with pregnancy, childbirth, and the postpartum period, and 340 million people acquire new gonorrhoea, syphilis, chlamydia, or trichomonas infections. [Glasier et al. Sexual and reproductive health: A matter of life and death. The Lancet. Nov. 2006.]

These horrible numbers are partly the result of the U.S.'s "global gag rule" (called the "Mexico City Policy" in the Reagan years, named for the city in which it was announced), instated by George W. in his first week in office. Under the rule, foreign family-planning NGOs that perform abortions cannot receive US money. Those that do receive US money are barred from lobbying for abortion rights in their countries. Apparently, our government believes that freedom of speech applies only in America (and perhaps not even here). If it's any consolation, NGOs that receive US money may still perform abortions for the big three: rape, incest, and threat to the woman's life. Still, restricted access to abortion providers makes these cases difficult.

Religion plays a role - a negative one. At the UN General Assembly special session on children in May 2002, for example, some countries sought to redefine "reproductive health services" to exclude abortion and to deny couples' access to information about contraception. Which countries? Iran, Iraq, Libya, Sudan, the Vatican, and the USA. An odd and frightening alliance. It reminds me of a rare and historic meeting of Jewish, Christian, and Muslim leaders in Jerusalem last year... to protest the gay pride parade. You'd never see ideological opposites join forces to discuss poverty or war or the environment. But sex? For sure.

It doesn't take the Oracle at Delphi to see that last week's decision by Nicaragua's legislature (52-0!) to ban all abortions, including in cases of rape, incest, and threat-to-woman's life, had serious Catholic undertones. Yet Brazil, also a Catholic country, leads the world in promoting condoms. Exceptions aside, I suspect that religion bolsters conservative and patriarchal forces, encourages women to marry young (far younger than men), and puts the decision over how many children to bear in the hands (or other body part) of the husband.

Not to mention that God hates women. But that's for another time.