Click here
|
Did You Hear About the Judges Who … ? Connecticut Supreme Court Rules Fetus is Part of a Woman's Body 5/12/2003 Like the world needed another lawyer joke.
The Connecticut Supreme Court has managed to capture my vote for this year's mother-of-all court jester awards. And that's not easy with the Ninth Circuit Kings of Comedy regularly emitting buffoonery. Declaring the Pledge of Allegiance unconstitutional seemed unbeatable. But who knew?
The Connecticut jesters ruled on May 7, 2003, that "a fetus constitutes a part of the mother's body and, therefore, is a member of her body," akin to her "ear, tongue and skin." State v. Sandoval.
No-they weren't moonlighting at the Hartford Comedy Club. It was unanimous-not one straight man dissented.
If the fetus is like skin, does a woman go into labor or just exfoliate? If like the tongue, at delivery does the obstetrician say, "Stick out your fetus"? When the baby kicks, does she get a ringing in the ear? Somebody stop me.
Would the court agree that women don't have a male sex organ? This is not a trick question. If her fetus has one, then the fetus can't be part of her body or else the woman has a male sex organ. It's called logic as in, "If elephants have monkeys on their backs and monkeys have fleas on their backs, then elephants have fleas on their backs."
The case began when Edwin Sandoval tried to induce a miscarriage by forcibly inserting two 200 mg. misoprostol pills "into [his girlfriend's] vagina, which caused bleeding."* At trial he argued that he could not be charged with attempting to commit aggravated assault because the fetus was the target, not the mother. Sometimes I just crave a gavel. Mr. Wonderful was convicted under several assault statutes and appealed to the Connecticut Supreme Court.
Two issues on appeal involved his convictions on the aggravated assault charges, which required that he assaulted the victim with the "intent … to destroy or disable permanently a member or organ of [her] body …."
The prosecution argued that the 5-week-old fetus was part of the woman's body. The court noted that both the prosecution and defense agreed that the term "'member' means a 'bodily part or organ.' Inasmuch as the parties also agree that a fetus is not an organ, we must determine whether a fetus is a bodily 'part.'"
Here's what gets them my jester vote.
The court consulted Webster to define "part," which says, "one of the equal or unequal portions onto which something is or is regarded as divided: something less than a whole: a unit (as a number, quantity, or mass) held to constitute with one or more other units something larger: constituent, fraction, fragment, member, piece …." So if the fetus is, let's say, one-quarter of the woman, does that make her three-quarters of a whole?
The court concluded:
First, as with any bodily part, a fetus constitutes physically identifiable tissue. Second, implantation of the fetus occurs within the mother's uterus, and the fetus is attached to the mother via the umbilical cord and placenta. … Finally, the fetus is nourished and sustained by the mother; indeed, at five weeks of age, the fetus is incapable of survival outside the mother.
Following this logic, a deep-sea diver attached to a ship by a tether and breathing apparatus, who is incapable of sustaining life without them, becomes a part of the ship. A submarine crew becomes a part of the sub, an airline passenger becomes a part of the plane (except for the nourishment part), a patient on life-support becomes a part of the hospital. (This would probably require approval from the Board of Zoning Appeals to remove life support. And, should the patient die, the court would probably order a building permit to remove him from that portion of the hospital.)
Chief Justice William J. Sullivan issued a separate concurring opinion stating "the fetus may both be a part of its mother as well as its own individual being." Maybe the CJ was attempting damage control or maybe the male sex organ question popped into his mind.
And get this. The court was mindful that "the law favors rational and sensible statutory construction" and "we interpret statutes to avoid bizarre or nonsensical results." It's hard to type when you're rolling on the floor.
Some have been mildly critical of the court's ruling by blaming the problem on the two statutes. No, the problem is with the prosecution and the court. Sandoval wasn't going to walk if his convictions under two of the statutes were overturned. Furthermore, upholding a conviction isn't supposed to be a court's starting and ending point.
What are judges sworn to do? Is denying truth and distorting statutes acceptable? Isn't applying the medical and scientific truth about a fetus to the law--as written--what the court was supposed to do here? If doing that meant Sandoval's convictions under the statutes in question had to be overturned, that's called justice. Denying truth is just as egregious as distorting statutes, and each is judicial activism.
This is a ruling by the highest court in Connecticut holding that "a fetus is a woman's body part." All Connecticut courts will follow it. Worse yet, other courts outside Connecticut may follow it. That's a costly price to pay for upholding Sandoval's conviction on the two statutes in question, especially when he was convicted under other statutes, which didn't require distorting the truth about the unborn.
The Connecticut supremes qualify for strong criticism for judicial activism and for subjecting the world to one more dumb lawyer joke.
* Misoprostol is the second part of the drug regimen for RU-486, which induces abortion. Misoprostol constituted the "dangerous instrument" used by Sandoval, for which he was convicted of committing assault in the second degree. Sandoval had obtained the pills from his physician brother in Peru where misoprostol is used for abortion. The Food and Drug Administration Web site states the following about vaginal use of misoprostol:
There are published studies of the use of mifepristone with vaginal administration of misoprostol for abortion. The misoprostol doses used in these studies are higher than those described in the Mifeprex labeling. These studies were not part of the clinical trials that FDA reviewed when FDA approved mifepristone, nor have they been submitted for review, therefore, FDA has had no opportunity to evaluate the safety or efficacy of this regimen. Because physicians exercise their judgment in prescribing what they feel is best for the patient, they may decide to use an "off-label" regimen, rather than the approved regimen.
If a physician gives misoprostol directly to a woman to use vaginally as an "off-label regimen," would it be any less of a "dangerous instrument"?
For the problems associated with RU-486 approval by the FDA, see CWA's Citizen Petition filed on August 20, 2002, with the FDA describing the threat to women's health from the abortion drug Mifeprex™ (commonly referred to as RU-486 or mifepristone). The petition also outlined numerous procedural violations that occurred when the FDA considered the drug for approval. The Citizen Petition asks the commissioner of the FDA to halt all distribution and marketing of the drug.
|
|
Concerned Women for America 1015 Fifteenth St. N.W., Suite 1100 Washington, D.C. 20005 Phone: (202) 488-7000 Fax: (202) 488-0806 |
Feedback / Questions? || Problem with this page? || Archives
