Is the Fetus a Person?: A Comparison of Policies Across the Fifty States

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Overview

Without a doubt, the sharpest public debates over the value of fetal life have revolved around the conditions, if any, under which abortion should be legal. Yet the question of whether the fetus is or is not a person is central in two other policy domains: substance abuse by pregnant women and assaults on pregnant women, especially assaults that cause the death of a fetus.At first glance, all three issues seem similar—all ask the question of how the state should respond to actions that threaten or destroy fetal life. But the response of state and society to each has been very different: while the highly charged debate over abortion rights rages unabated, the other two issues engender no such social or political divisions. And while drug use and third-party fetal killings are universally condemned, "fetal abuse" is a term used only to describe harm that a pregnant woman brings to her own fetus, and not harm brought to it by a third party. Similarly, a great deal of media attention has been paid to such "fetal abuse," while the question of third-party harm has been all but ignored.Is the Fetus a Person? analyzes fetal personhood by examining all of the major areas of the law that could implicitly or explicitly award the fetus such status. Jean Reith Schroedel presents a comprehensive history of fetal protection ideas and policies in America, considering the moral and legal underpinnings of existing laws while paying particular attention to the influence of gender and power relations on their formation. As much a model for future research as a study of the status of the fetus, this book offers an extraordinary examination of one of the most divisive and complex issues of late-twentieth-century American life.
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Editorial Reviews

From the Publisher
"Schroedel, a professor of politics and policy, offers a demanding but quite valuable analysis of how different states address the issues of whether the fetus has legal protected 'personhood.' "—Mary Carroll. Booklist. July 2000.

"A thoughtful legal and philosophical examination of the problem of fetal personhood, with implications for public policy and criminal law. . . . A well-researched and well-reasoned contribution to our continuing and contentious national conversation on fetal personhood and abortion laws."—Kirkus Reviews, August 2000.

"Neither the title nor the jacket design does justice to this book. . . Schroedel concludes. . . that fetal protection policies are really about controlling women. . . This book should be required reading for the US Supreme Court as it enters the fray this term in Ferguson v. Charleston. A timely, important, and highly recommended book."—Choice, March 2001

"Jean Reith Schroedel's provocative and well-researched book tests the rhetoric of the prolife movement, which focuses on the protection of the most vulnerable among us, and the rhetoric of the prochoice movement, which focuses on the protection of women's equality and autonomy. By examining the degree to which antiabortion forces also support other measures to enhance the well-being of fetuses and infants, Schroedel concludes that their motivations are better explained by a resistance to female autonomy. . . Schroedel's book develops important evidence for the claim that this battle will not be won or lost by our regard for fetal life, but rather by our regard for women's equality and the obligations of all people, men and women, to make sacrifices for others."—R. Alta charo, J.D., University of Wisconsin. The New England Journal of Medicine. Vol. 343, No. 23

"States with the strongest antiabortion laws generally are among the states that spend less on needy children and are less likely to criminalize the battering or killing of fetuses in pregnant women by a third party, according to a provocative new study. The study, the first of its kind . . . says that states with strong antiabortion laws provide less funding per child for foster care, stipends for parents who adopt children with special needs, and payments for poor women with dependent children than do states with strong abortion rights laws. . . . 'To put it simply, pro-life states make it difficult for women to have abortions, but they do not help these women provide for the children once born, ' Schroedel said."—William Claiborne, The Washington Post. October 9, 1999.

"The background on the legislative problem as well as the amount and quality of data by itself make Schroedel's book an excellent primer for those interested in working on abortion legislation and policy in the years to come. . . Schroedel's book should be considered basic reading for anyone interested in the ethics and politics of abortion."—Ida Roy, University of Pennsylvania. Theoretical Medicine Vol. 22, 2001

"One of the favorite tactics of pro-lifers is to accuse abortion rights supporters of being anti-child, hyperindividualistic, unwilling to protect the vulnerable and generally in favor of 'death.' The truth is almost the opposite. Jean Reith Schroedel's book supports the pro-choice quip that anti-choicers' concern for children begins with conception and ends with birth, finding 'virtually no support' for the antiabortion claim that opposition to abortion is all about caring for kids. Empirical research is a wonderful thing."—Katha Pollitt

"This unique book takes a broad and inclusive sweep, covering abortion laws, drug abuse/narcotic exposure laws, fetal battering, tort law on fetal harm, civil detention of pregnant women, fetal tissue research, and more. Jean Schroedel takes a creative leap to show how these policies and practices are all related and should be examined through the same lens, as responses to the same real-world problem (the well-being of vulnerable people). An excellent book."—Deborah Stone, author of Policy Paradox: The Art of Political Decision Making

New England Journal Of Medicine
Many scholars have noted that there appears to be a higher degree of sacrifice forced on pregnant women than on the fathers and mothers of children already born, even when such children were expected, wanted, and deliberately conceived. This difference in notions of parental duty, many argue, is evidence that the underlying motivation is not so much concern about the well-being of the fetus or child as it is disapproval of pregnant women's choices. If the states imposed a higher duty on parents to sacrifice themselves for their children, a similar degree of sacrifice by pregnant women for their still nonsentient fetuses might be in order.

Schroedel's book develops important evidence for the claim that this battle will not be won or lost by our regard for fetal life, but rather by our regard for women's equality and the obligations of all people, men and women, to make sacrifices for others.

Booknews
In a comparative study of States' fetal rights policies, Schroedel (politics and policy, Claremont Graduate U.) ventures beyond the controversial Roe vs. Wade US Supreme Court decision upholding the legality of abortion to examine laws pertaining to fetal abuse via prenatal drug exposure and third-party killings. She points out the disparities between the States and inconsistencies within State laws. Includes a list of cases and legal case index. Annotation c. Book News, Inc., Portland, OR (booknews.com)
Kirkus Reviews
From Schroedel (Policy and Politics/Claremont Graduate School), a thoughtful legal and philosophical examination of the problem of fetal personhood, with implications for public policy and criminal law.
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Product Details

  • ISBN-13: 9780801437076
  • Publisher: Cornell University Press
  • Publication date: 6/28/2000
  • Edition description: Reprint
  • Pages: 256
  • Product dimensions: 6.34 (w) x 9.50 (h) x 0.79 (d)

Table of Contents

Preface xi
Part I. Background and Overview
1. Introduction 1
Framing the Issue of Fetal Personhood 3
The Debate over Fetal Personhood 5
Legal Status of the Fetus 7
The Research Design 8
Organization of the Book 14
2. Fetal Personhood through the Centuries 16
The Moral and Legal Dimensions of Fetal Status 17
The Early Moral Discourse 17
The Christian Church's Opposition to Abortion 18
The Impact of Moral Beliefs on Legal Developments 20
Fetal Status in Antebellum America 24
Changes in Nineteenth-Century Legal Doctrine 26
The Movement to Criminalize Abortion 27
Changes in the Legal Status of the Fetus in Civil Cases 31
The Criminalization of Third-Party Fetal Killing 34
The Movement to Reform Abortion Laws 35
Expansion of Fetal Rights 44
Applying the Adversarial Lens to the Other Fetal Policy Areas 47
The Problem of Substance Abuse by Pregnant Women 48
Summary 55
Part II. Interpreting the Patterns
3. Abortion Policymaking in the States 57
The Policy Framework 57
Morality Policy as Social Regulation and the Redistribution of Values 58
Applying the Morality Policy Framework to Fetal Policies 59
Abortion Policymaking 62
State Laws Banning Abortion 66
The Shift toward Enacting Limited Abortion Bans 68
Overall Restrictiveness of Abortion Bans 75
Post-Roe Restrictions on Abortion 76
Restrictions on Adult Women 80
Restrictions on Minors 92
Measuring the Overall Restrictiveness of Abortion Laws 96
Summary 99
4. Prenatal Drug Exposure and Third-Party Fetal Killings 100
One-Sided Morality Policymaking and Fetal Status 100
Policy Responses to Substance Abuse by Pregnant Women 101
Legislative Responses to the Problem of Prenatal Drug Exposure 105
Criminal Prosecution of Pregnant Addicts 113
Policy Responses to Third-Party Fetal Assaults and Killings 120
Legislative Responses to Third-Party Fetal Assaults and Killings 125
Third-Party Fetal Killing Statutes 126
Judicial Responses to Third-Party Fetal Killings 131
Summary 136
5. Explaining Fetal Policies across the States 138
Searching for the Common Thread in Fetal Policies 138
Public Opinion and State Abortion Policies 139
Public Opinion and State Policies toward Prenatal Drug Exposure 142
Public Opinion and Policies toward Third-Party Fetal Killing 143
Summing Up the Impact of Public Opinion 144
Assessing the Fetal Rights and Women's Rights Narratives 145
Modeling Abortion Policymaking in the States 158
Summary 162
6. Where Do We Go from Here? 165
Federalism and Fetal Personhood 165
The States'-Rights Approach to Fetal Personhood 167
New Assaults on Abortion Rights 168
New Efforts to Expand Fetal Rights/Personhood 171
Enormous Disparities in Legal Status of the Fetus 183
The Link between Fetal Rights and the Antiabortion Movement 185
An Opportunity to Find Common Ground 188
References 191
List of Cases 211
Subject Index 215
Legal Index 221
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