Controlling the Woman to Protect the Fetus

The same possibilities for actual decision-making power, as opposed to legal decision-making authority, do not exist for decision-makers other than the mother—for the state, for example, or for husbands—because the mother as childbearer could avoid many restrictions even if an outsider were given legal decision-making power. If, for example, the legal rule were that a wife could not obtain an abortion without the consent of her husband but a pregnant married woman wanted an abortion, she might simply not inform her husband that she was pregnant and in seeking an abortion she might not inform the doctor that she was married.

See Griswold v. State of Connecticut, 381 U.S. 479 (1965) (married couples); Eisenstadt v. Baird, 405 U.S. 438 (1972) (single persons); Carey v. Population Services, International, 431 U.S. 678 (1977) (minors age 16 and under).

Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). See discussion infra.

See e.g., Bradwell v. Illinois, 82 U.S. 130, 142 (1873) (J. Bradley, concurring) (explaining that the “paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother” as part of the reason for upholding state court's denial of a license to practice law because the applicant was a woman); Muller v. Oregon, 208 U.S. 412, 422 (1908) (maximum hours laws are constitutional for women although not for men because the physical structure of a woman and “the proper discharge of her maternal function—having in view not only her own health but the well being of the race—justifies legislation to protect her”). See Koziara Karen , “Women and Work,” in Koziara Karen Moskow Michael Tanner Lucretia , eds., Working Women (Washington, D.C.: BNA Books, 1987), 374–408; Babcock Barbara Freedman Ann Norton Eleanor Holmes Susan Ross Sex Discrimination and the Law: Causes and Remedies (Boston: Little, Brown, 1975), p. 261. Since 1971 the courts have held such “protective” labor laws for women inconsistent with Title VII of the Civil Rights Act of 1964, see, e.g., Rosenfeld v. Southern Pacific Co., 444 F.2d 1219 (9 Cir. 1971).

414 U.S. 632 (1974). As well as federal constitutional protection, many states also have laws which protect pregnant employees, e.g. Cal. Gov't Code §§ 12900-12948 (West 1980); Conn. Gen. Stat. Ann. §§ 46a—51 to 62 (West Supp. 1981); Iowa Code Ann. §§ 659.010-.030 (1979), and employers with federal government contracts in excess of $10,000 fall under Executive Order 11246, 3 C.F.R. § 169 (1965), which prohibits discrimination. Despite these provisions, pregnant women can still be eliminated from some jobs during pregnancy on the ground that pregnancy renders them unfit. See e.g. Burwell v. Eastern, 633 F.2d 361 (4 Cir. 1980), cert. denied, 450 U.S. 965 (1981) (upholding removal of airline stewardesses after the 13th week of pregnancy to protect safety of passengers); Levin v. Delta Airlines, Inc., 730 F.2d 994 (5 Cir. 1984) (upholding exclusion of all pregnant stewardesses from flight duty because of passenger safety concerns); Harriss v. Pan American World Airways, Inc., 649 F.2d 670 (9 Cir. 1980) (upholding rule that pregnant stewardesses must take leave from the moment they become aware of pregnancy). Employers are required to provide reasonable alternative employment to displaced pregnant workers, but the job may pay less, and no job need be provided if none exists that involves the same skills. See, e.g., Zuniga v. Kleger County Hospital, 692 F.2d 986 (5 Cir. 1982); Levin v. Delta Airlines, Inc., 730 F.2d 994 (5th Cir. 1984).

Pregnancy Discrimination Act of 1978 (Title VII, § 701 (k), 42 USC § 2000 e–(k)). Congress enacted this provision in response to Supreme Court decisions holding that women were not protected from discrimination against pregnancy either by the Constitution, Geduldig v. Aiello, 417 U.S. 484 (1974), or by Title VII of the Civil Rights Act of 1964, General Electric v. Gilbert, 429 U.S. 125 (1976).

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1982) (prohibiting employment discrimination by race, color, religion, sex and national origin by employers with 15 or more employees, labor unions, employment agencies and certain job training programs). Section 701 (k) defines discrimination on the basis of pregnancy and related conditions as sex discrimination.

As of 1979, an estimated 100,000 jobs were closed to women, ostensibly to protect future offspring. See Williams Wendy , “Firing the Woman to Protect the Fetus,” Georgetown Law Review 69 (1981): 641–704, at 647. Olin Corporation, for example, classified jobs on the basis of reproductive risks, and closed to females aged 5 to 63 jobs which involved contact with teratogens. Jobs which involved more limited exposure were closed only to pregnant women. Wright v. Olin Corp., 697 F.2d 1172 (4th Cir. 1982). In Ohio, Chemical and Atomic Workers International Union v. American Cyanamid, 741 F.2d 444 (D.C. Cir. 1984), the court let stand a company policy that women aged 16 to 50 could take jobs involving exposure to lead only by establishing their sterility; five of seven workers had been sterilized and two others had instead been transferred to lower-paying jobs. See Cherner-Mareval Wendy , “Occupational Safety and Health,” Temple Law Quarterly 58 (1985): 939–975. See also Hayes v. Shelby Memorial Hospital, 726 F.2d 1543 (11th Cir. 1984). Similar policies are pursued by Allied Chemical, B.F. Goodrich, Sun Oil, Gulf Oil, Union Carbide, Monsanto and Du Pont. See Sor Yvonne , “Fertility or Unemployment,” Journal of Law and Health 1 (1986): 141–228. The usual explanations for fetal protection policies are the company's desires to avoid tort liability and to protect future generations. But regardless of the extent of risk, women are much more likely to be excluded from traditionally male jobs than female jobs, see Stellman Jeanne , Women's Work, Womens' Health: Myths and Reality (N.Y.: Pantheon, 1977) at p. 160; Scott J. , “Keeping Women in Their Place,” in Chavkin W. , ed., Double Exposure (N.Y.: Monthly Review Press, 1984) at 180–183.; Stellman Jeanne Henifin M. , “No Fertile Women Need Apply,” in Hubbard Ruth Henifin M. Fried B. , eds., Biological Women—The Convenient Myth (Cambridge: Schenkman, 1982) at p. 117. Moreover, men are typically not covered by fetal protection policies even though toxins are known to present reproductive risks to males and to render them even more vulnerable to certain hazards (because spermatogenesis is continuous and dividing cells are most vulnerable). See Wright v. Olin Corp., 697 F.2d 1172 (4 Cir. 1982); Levy Barry Wegman David , eds., Occupational Health: Recognition and Prevention of Work Related Disease (Boston: Little, Brown, 1983) at p. 308.; Brody Jane , “Sperm Found Especially Vulnerable to the Environment,” New York Times, March 10, 1981, sec. C1. Women as a class therefore bear the entire cost of protecting future generations, sometimes without regard to the likelihood of pregnancy (since older women are often covered as well as younger ones) and despite lack of clear evidence of special risk. See generally Becker Mary , “From Muller v. Oregon to Fetal Vulnerability Policies,” 53 University of Chicago Law Review 53 (1986): 1219–1273.

Pregnant women as a group could also be subjected to mandatory drug testing or mandatory AIDS testing. Alternatively, newborns can be tested for evidence of maternal drug use, or for AIDS seropositivity, and they are frequently so tested today. Maternal drug use might result in punishment of the mother or removal of her baby.

As well as the degree of necessity for the screening procedure, another factor that might influence which screening procedures to require is how intrusive the particular procedure is. Screening by urinalysis or blood test, for example, might be ordered more readily than screening by procedures like amniocentesis, which are not only more intrusive but also carry some risk to the healthy fetus.

In many states women would not have the option of abortion if they were more than six months pregnant when the tests results became known. But in the first two trimesters of pregnancy, the Constitution requires that women retain the option whether to abort. Roe v. Wade, 410 U.S. 113 (1973).

See Myers John , “Abuse and Neglect of the Unborn: Can the State Intervene?,” Duquesne Law Review 23 (1984): 1–76, at pp. 26–34; Bronner Ethan , “Advances Elevate Status of Fetus,” The Boston Globe, July 21, 1987, 1-1 (quoting Prof. John Robertson to say that actions for fetal abuse are “a logical extension of child abuse laws”); Lewin Tamar , “Courts Acting To Force Care of the Unborn,” New York Times, Nov. 23, 1987, p. A-1 (quoting Prof. John Robertson to say, “If a woman refuses medical help, and her child is born damaged as a result, maybe she has fallen below acceptable standards and … should be turned over to the child abuse authorities, who could punish prenatal child abuse just as postnatal abuse.”)

See, e.g., People in Interest of D.K., 245 N.W. 2d 644 (So. Dak. 1976).

The remedy for violating a court order issued under the statute might be contempt of court—either civil contempt allowing the woman to be confined until she agreed to comply, or criminal contempt resulting in a fine or imprisonment for a specified term.

Obviously some births always will take place away from the hospital, accidentally as well as intentionally, but a legislature could attempt to prohibit deliberate home births by imposing fines on women for willfully failing to report for hospitalization when their labor commenced, or by punishing doctors, midwives and others for agreeing to assist at a home birth.

One writer would utilize a reporting system as part of the enforcement mechanism, and would intervene to prevent the home birth, as well as threatening criminal punishment and removal of the infant under child or fetal abuse laws. See Bross Donald , “Court-Ordered Intervention on Behalf of Unborn Children,” Children's Legal Rights Journal, 7 (1986): 11–15, at pp. 13–14.

See e.g. Kirchberg v. Feenstra, 450 U.S. 455 (1981); Orr v. Orr, 440 U.S. 268 (1979); Reed v. Reed, 404 U.S. 71 (1971).

Indeed one efficacious way of structuring regulations, if they are to apply to all women planning to continue their pregnancy to term, would be to regulate every woman upon commencement of pregnancy. A prohibition of alcohol for pregnant women, for example, would not have to exempt women planning to abort or considering abortion; it could instead regulate all pregnant women and let some opt out of the regulation only when they exercised their right to abortion. One commentator suggests that women in the first trimester of pregnancy could not be regulated but that those who engage in behavior likely to harm the fetus during that stage could be required to abort. See Bross , supra note 16, at p. 15.

114 Daily Wash. L. Rptr. 2233 (D.C. Super. Ct. July 26, 1986). The decision was affirmed on appeal to the Court of Appeals of the District of Columbia by unreported order.

In the past 16 years the percentage of cesareans in this country has quadrupled, so that today almost one birth out of four is a cesarean. The rate of cesarean section delivery in this country increased from 4.5 per 100 deliveries in 1965 to 22.7 per 100 deliveries in 1985. See Taffer Selma Placek Paul Liss Teri , “Trends in the United States Cesarian Section Rate and Reasons for the 1980–85 Rise,” American Journal of Public Health, 77 (Aug. 1987): 955–959, at 955.

Many women accept cesareans they at first resist, under pressure from the doctor or even under threat of court action. Even if a clear rule were adopted prohibiting court intervention and coercion, it is difficult to delineate the boundaries between persuasion and force, and doctors would continue to have substantial leverage. In view of the influence doctors can exercise over the mother's decision, it may be no accident that many of the reported cases involve persons who follow unwaivable church doctrine.

See Kolder Veronika Gallagher Janet Parsons Michael , “Court Ordered Obstetrical Interventions,” New England Journal of Medicine 316 (May 1987): 1192–1196.

Jefferson v. Griffin Spalding Hosp. Authority, 247 Ga. 86, 274 S.E. 2d 457, 459 (1981).

The hospital sought permission to force on Mrs. Jefferson both a cesarean section and any necessary blood transfusions.

Jefferson v. Griffin Spalding Hospital Authority, 247 Ga. 86, 274 S.E. 2d 457, 459 (1981).

The night before the operation was to be performed, the placenta moved—“a most unusual occurrence.” 274 S.E. 2d. 457, at 461 n. 1.

Tamar Lewin, supra note 12.

In still another case in which an order was obtained, doctors were surprised that the baby when finally delivered by cesarean was much healthier than the fetal monitoring had led them to expect. The doctors concluded, “That a more asphyxiated infant with poor neonatal outcome did not result after so long a duration of apparent fetal distress simply underscores the limitations of continuous fetal heart monitoring as a means of predicting neonatal outcome.” Bowes Watson A. Jr. Selgestad Brad , “Fetal Versus Maternal Rights: Medical and Legal Perspectives,” Obstetrics and Gynecology, 59 (1981): 209–214, at p. 211. Kolder, Gallagher, and Parsons, supra note 22, report six cases in which forced cesareans were sought where the prediction of harm to the fetus was found to be inaccurate.

533 A.2d 611 (D.C.Ct. of App., 1987).

“Drama in the Womb: A Matter of Life and Death Winds Up in Court,” Los Angeles Times, December 25, 1987, 5A-5.

New York Times, March 22, 1988, A-17.

See In re A.C., 533 A.2d 611, 612–13 (D.C.Ct. of App., 1987).

“Drama in the Womb,” supra note 30.

Ibid.

Ibid.

In Re A.C., 533 A.2d 611, 617 (D.C.Ct. of App., 1987).

Roe v. Wade, 410 U.S. 113, 173, (Rehnquist, J., dissenting); Doe v. Bolton, 410 U.S. 179, (White, J., dissenting).

Bowes Selgestad , supra note 28, at 214.

See McFall v. Shimp, 10 Pa. D. & C. 3d 90 (Allegheny Ct. Comm Pleas, 1978). The case involved cousins, but the court made clear that it was not the closeness or the distance of the relationship that was important but rather that no person would be forced to be a donor for another. The plaintiff suffered from a rare bone marrow disease and would not survive without a compatible donor, and it was stipulated that his cousin the defendant was the only suitable donor. The court based its decision upon “[t]he common law [which] has consistently held to a rule which provides that one human being is under no legal compulsion to give aid or to take action to save that human being or to rescue…. For our law to compel the Defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. …” Id., at p. 91. The risks to the bone marrow donor were small. See Steinbrook Robert , “Unrelated Volunteers as Bone Marrow Donors,” Hastings Center Report 10 (February 1980): 11–14; Meisel Alan Roth Loren , “Must A Man Be His Cousin's Keeper?” Hastings Center Report 8 (Oct. 1978): 5–6. See generally, Note, “Coerced Donation of Body Tissues: Can We Live with McFall v. Shimp?” Ohio State Law Journal 40 (1979): 409–440 (suggesting that in some circumstances compelled donations should be required).

Cal. Penal Code § 270 (West 1970 and Supp. 1988).

The language concerning fetuses in the statute had been added in 1925, when the statute applied only to fathers, and it was intended to impose liability upon the father-to-be who refused to provide support to the woman he had impregnated. Later the statute was amended so that it applied to mothers as well as fathers. The effect, however, according to the court's ruling, was to make women as well as men financially responsible for the expenses of pregnancy, but not to impose upon women an obligation to obey doctors' orders. See generally, Note, “Maternal Rights and Fetal Wrongs: The Case Against Criminalization of ‘Fetal Abuse,’” Harvard Law Review 101 (1988): 994–1112, note 1.

In Reyes v. Superior Court, 75 Cal. App. 3d 214, 141 Cal. Rptr. 912 (1977), the California Court of Appeals held that because the statute does not expressly mention fetuses, the provisions of the general child abuse law do not apply to fetal abuse.

Some courts, unlike the California court in Reyes, have applied existing abuse and neglect laws to the unborn; one such case, involving a Colorado court and Colorado's abuse and neglect law, is reported in Bowes & Selgestad, supra note 28. See also note 12 supra for authorities supporting this application of child abuse laws.

The prosecutor might have found it difficult to prove that these activities were responsible for the condition of the baby when born, and not earlier events or conditions.

Some doctors say that any alcohol can be harmful to the fetus, and that fetal alcohol syndrome can result from relatively low intake. Others believe that limited use is not risky.

Braunwald Eugene , Harrison's Principles of Internal Medicine, 11th ed. (N.Y.: McGraw-Hill, 1987), at 2108.

The fetus is particularly vulnerable at the beginning of pregnancy. See Brackbill Y. McManus K. Woodward L. , Medication in Maternity: Infant Exposure and Maternal Information 5 (1985).

See Bross Donald C. , supra note 16, at 11–12. See also Kolder , Gallagher, and Parsons, supra note 22 (reporting that 46 percent of the heads of fellowship programs in maternal-fetal medicine thought that women who refused medical advice and thereby endangered the life of the fetus should be detained).

See, e.g., In re Steven S., 126 Cal. App. 3d 23, 178 Cal. Rptr. 525 (1981); In re Dittrick Infant, 80 Mich. App. 219, 263 N.W.2d 37 (1977).

See, e.g., Kolder, Gallagher, & Parsons, supra note 22, at 1193 (reporting court-ordered hospital detentions in Illinois and Colorado of women with diabetes who were 31 to 33 weeks pregnant); Ethan Bronner, “Advances elevate status of fetus,” Boston Globe, July 21, 1987, p. 1 (reporting a Wisconsin case in which a young woman was detained during her pregnancy because she “tended to be on the run” and to “lack motivation.”) That case is also described in “Girl detained to protect fetus,” Wisc. State Journal, August 16, 1985, sec. 3–2.

See note 16 supra.

See Bross , supra note 16, at 14.

Kolder Gallagher Parsons , supra note 22, 1192–96.

Id.: 1195.

One doctor who objects to that practice says “If you have to have several attendants hold down a woman to anesthetize her in order to perform a Caesarean, that's treating her like an animal.” Bronner Ethan , “Advances Elevate Status of Fetus,” The Boston Globe, July 21, 1987, p. 1–1 (quoting Dr. Arnold Colodny, a surgeon at Children's Hospital in Boston). Usually this kind of physical restraint is unnecessary, however, and the operation is forced only in the sense that a court order is obtained allowing the doctors to perform the operation without the consent of the patient. In fact, the patient then often relaxes and accepts the inevitable, and it is not always clear that the operation would be performed if the patient continued to resist physically. Some doctors would not strap a woman down “like an animal” and forcibly sedate her, and there are cases where doctors do not believe they can safely sedate a resisting woman. See, e.g., Bowes Selgestad , supra note 28, at p. 211 (discussing an obese woman and saying that it might have been neither safe nor possible to administer anesthesia if she had continued to resist after the court order was obtained).

American College of Obstetricians and Gynecologists policy statement, issued in August, 1987, reported in Lewin, supra note 12. See also Nelson Lawrence J. Milliken Nancy , “Compelled Medical Treatment of Pregnant Women,” Journal of American Medical Association, 259 (February, 1988): 1060–1066 (calling it counterproductive for doctors concerned for the health of the unborn to turn to courts).

Most forced cesareans have been performed on women who were poor and were members of racial minorities; many of the women did not speak English and had beliefs and attitudes about childbirth that their doctors did not share. See Kolder Gallagher Parsons , supra note 22, at p. 1195.

Some maternal-fetal specialists would deal with these contingencies as well with coercion; they advocate state surveillance of women in the third trimester who have stayed outside the hospital system. See Kolder Gallagher Parsons , supra note 22, at 1194 (reporting that 26 percent of the specialists surveyed approved of state surveillance).

See, e.g. In re Vanessa F., 76 Misc. 2d 617, 351 N.Y.S.2d 337 (1974) (child removed after birth because of prenatal drug abuse); In re Baby X, 97 Mich. App. 111, 293 N.W.2d 736 (1980); In re Smith , 128 Misc. 2d 976, 492 N.Y.S.2d 331 (Fam. Ct. 1985); In re Ruiz, 27 Ohio Misc.2d 31, 500 N.E.2d 935 (1986).

Nonetheless, some doctors prefer criminalization to forced intervention, even in the context of cesarean births. In Lieberman J.R. Mazor W.C. Cohen A. , “The Fetal Right to Live,” Obstetrics & Gynecology, 53 (April, 1979): 515–517, at p. 517, the authors conclude that when a mother refuses to submit to a needed cesarean, doctors should not force the operation but should use all means of explanation and communication and if the patient persists in refusing, should inform her that she is committing a felony.

Parness Jeffrey , “Crimes Against the Unborn: Protecting and Respecting the Potentiality of Human Life,” Harvard Journal on Legislation, 22 (1985): 97–172, at p. 163, favors criminalization through fetal abuse statutes, largely on this theory. See also Note, “Maternal Substance Abuse: The Need to Provide Legal Protection for the Fetus,” Southern California Law Review, 60 (1987): 1209–1238, at p. 1235.

Division of Health Promotion and Disease Prevention, Preventing Low Birthweight (1985): 8; American Academy of Pediatrics Task Force on Infant Mortality, “Statement on Infant Mortality,” Pediatrics 78 (1986): 1155; Dott A. Fort A. , “The Effect of Availability and Utilization of Prenatal Care and Hospital Services on Infant Mortality Rates,” American Journal of Obstetrics and Gynecology 123 (1975): 854; National Health Law Program, “The Cost-Effectiveness of Prenatal Care,” Clearinghouse Review 19 (1985): 259.

See, e.g., Greater New York March of Dimes, The Campaign for Healthier Babies: Fighting the Problem of Low Birthweight in New York City; Leu Lori , “Legislative Research Bureau Report: A Proposal to Strengthen State Measures for the Reduction of Infant Mortality,” Harvard Journal of Legislation 23 (1986): 559–578, at pp. 561–63; United States Government Accounting Office, Prenatal Care: Medicaid Recipients and Uninsured Women Obtain Insufficient Care (1987): 3.

See Geronimus A.T. , “The Effects of Race, Residence, and Prenatal Care on the Relationship of Maternal Age to Neonatal Mortality,” Journal of American Public Health Assn. 76 (1986): 1416; Children's Defense Fund, The Health of America's Children: Maternal and Child Health Data Book (1988).

See Brody Jane , “Widespread Abuse of Drugs By Pregnant Women Is Found,” New York Times, August 30, 1988, p. I-1 (quoting Chandler Janet Dr. ).

See Schachter Jim , “Help is Hard to Find for Addict Mothers: Drug Use ‘Epidemic’ Overwhelms Services,” Los Angeles Times, December 12, 1986, p. II-1.

428 U.S. 52 (1976).

The only way states could treat the mother and father equally would be for the state itself to adopt a preference for or against abortion: For example a rule that abortion was permissible only if both parents consented to it (a preference for childbirth) or alternatively a rule that childbirth was permissible only with the consent of both (a preference for abortion). Today such rule would be unconstitutional under Danforth, even though in other contexts the Supreme Court has permitted government to make “a value judgment favoring childbirth over abortion… .” Maher v. Roe, 432 U.S. 464, 474 (1977). See Harris v. McRae, 448 U.S. 297 (1980). And even if they were not unconstitutional, either rule would pose extreme problems of workability. See note 1 supra.

See, e.g., Hathaway v. Worcester City Hospital, 475 F.2d 701 (1 Cir. 1973); Comment, “A Constitutional Evaluation of Statutory and Administrative Impediments to Voluntary Sterilization,” Journal of Family Law, 14 (1975): 67–84; Sherlock Richard Sherlock Robert , “Voluntary Contraceptive Sterilization: The Case of Regulation,” Utah Law Review, (1976): 115–141.

See Ponter v. Ponter, 135 N.J. Super. 50, 342 A.2d 574 (Ch. Div. 1975) (denying husband's right to veto his wife's decision to undergo sterilization).

See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 453 (1972); Cord v. Gibb, 219 Va. 1019, 254 S.E.2d 711 (1979); Andrews v. Drew Municipal Separate School Dist., 507 F.2d 611 (5 Cir. 1975), cert. dismissed as improvidently granted, 425 U.S. 559 (1976).

If the state can control the pregnant woman's behavior, why cannot the husband come to court to force on his wife behavior that best comports with the well-being of the fetus, as the husband tried to do in Taft v. Taft, 446 N.E.2d 395 (Mass. 1983)? Nothing in Danforth would prevent the state from allowing the husband to initiate decisions to control the wife's behavior over decisions that are within the state's regulatory power.

Carey v. Population Services, International, 431 U.S. 678 (1977) (availability of contraception for minors age 16 and under); Eisenstadt v. Baird, 405 U.S. 438 (1972) (availability of contraception for single persons).

410 U.S., at 153.

Id.: 147-52.

Articles that maintain that the viability line established in Roe v. Wade is determinative concerning fetal abuse as well as abortion include Edward Doudera A. , “Fetal Rights? It Depends,” Trial 18 (April, 1982): 38–44; Note, “Constitutional Limitations on State Intervention in Prenatal Care,” Virginia Law Review 67 (1981): 1051–1067, at pp. 1066–67; Myers John , “Abuse and Neglect of the Unborn: Can the State Intervene?” Duquesne Law Review 23 (1984): 1–76, at pp. 65–68.

Throughout the last trimester the state can assert an interest in fetal life as such (as well as the health of the child to be), even though the fetus is not fully developed. Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 42 N.J. 421, 201 A.2d 537, cert. denied, 377 U.S. 985 (1964), is an example of a case very much like Jefferson, except it involved a transfusion instead of a cesarean and it was performed prior to the end of pregnancy, although after viability. In Raleigh Fitkin, the court gave the hospital authority to perform a blood transfusion on a pregnant woman, although the woman objected for religious reasons, when the testimony was that both mother and fetus would die without the operation. The court said the operation could be performed, however, if it was necessary to save the life of either the woman or the unborn child.

Another instance of women being treated as fetal containers is evident from the traditional exceptions to prohibitions of abortion for cases of rape and incest. It is difficult to explain such exceptions from a right-to-life perspective, since the fetus's origins are not the fetus's fault. Nor is the explanation that the woman is invariably “faultless” in these situations and not in others, for she may have consented to incestuous acts. The only correlation is with the fault of the father, whom the exceptions punish by not permitting him to use the woman to perpetuate his genes.

Cf. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, (1983) at 452–461 (O'Connor, J., dissenting).

Cf. Hart v. Brown, 29 Conn. Sup. 368, 289 A.2d 386 (1972).