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At first glance, the scene is Kafkaesque. The John Peter Smith Hospital, citing Texas’ Advance Directives Act, kept Marlise Munoz alive, after she suffered a pulmonary embolism, and, they agreed, met the “clinical criteria for brain death.” They did this only because she was pregnant.
Munoz could not have been more clear before she died: She told her husband she did not want to be on life support. And that choice was a fully informed one; she and her husband were emergency medical technicians, acutely aware of end of life decisions. In fact, the hospital kept Munoz on a ventilator despite the wishes of her family — her husband, who wanted to respect her wishes, and her parents, who knew that the decision would mean the death of what might have been their second grandchild. Worse still, the hospital allowed this situation to drag on for weeks, perhaps hoping that if they waited long enough they could argue that the fetus was “viable.” Abortion (in this case, terminating life support), they would surely argue, would have been illegal at that point.
The premise is that a woman’s body and the fetus within her are separate entities.
A grieving father had to go to court to put an end to this abomination, amidst an unrelenting media frenzy. The hospital’s actions, his complaint alleged, amounted to “a cruel and obscene mutilation of a deceased body against the expressed will of the deceased and her family.”
So wrong was the hospital’s view of state law, that even a Texas judge ordered the end of life support. While the statute, passed to protect to protect the “life of the unborn,” prohibited the hospital from withdrawing or withholding “life-sustaining treatment” from “a pregnant patient," it did not apply to Munoz. No life sustaining treatment could be given to her; she was already dead.
In fact, Kafka aside, a better metaphor for this case is “The Handmaid’s Tale,” a dystopian novel by Margaret Atwood. Set in a totalitarian theocracy which has overthrown the U.S. government, Atwood describes a regime in which women’s bodies were owned by the government. The protagonist belonged to a category of women kept as concubines (or “handmaids”) for reproductive purposes in an era of declining births. The state forced her to have intercourse with a high government official, whose wife could not have children. Women like her were merely vessels to carry the fetus, vessels over which the state had control.
While this vision seems extreme, it resonates in Texas law. A competent woman could make her own end of life decisions, under this law, but a competent pregnant woman could not. The hospital — the state — made that decision for her. The premise is that a woman’s body and the fetus within her are separate entities. While she may control her body, the fetus belongs to the state.
The themes are not at all unfamiliar. Until the mid 1970s, discrimination against women largely derived from her status as a mother and her capacity to procreate. In 1873, the U.S. Supreme Court ruled that Myra Bradwell was not allowed to be a lawyer, with one justice announcing that the “law of the creator” established that the “paramount destiny and mission of women is to fulfill the noble and benign offices of wife and mother.”
In the early 1920s, protective labor legislation was passed, limiting working hours for women, but not men. The Court affirmed based on the arguments of Louis Brandeis, then a lawyer, who linked women’s working conditions to the health of their children. Even though these laws were reversed in 1991, the traditional occupational segregation of the workplace that they engendered persisted.
The civil rights laws of the 1960s, the cases that lawyer Ruth Bader Ginsburg won before the Supreme Court, and even, Roe v. Wade, offered the promise of change. Significantly, Roe v. Wade, as Justice Ginsburg has noted, was not only about a medical procedure or privacy. It was fundamentally about sex discrimination. Without control over one’s reproductive capacity — whether to be a mother and even more significant, when — the laws against discrimination would be empty promises. With Roe, a woman’s decisions about her reproductive capacity, just like her choices about the rest of her life, would be respected by the law.
But the decision was flawed. Breaking down the abortion decision at each of the three trimesters of pregnancy, the opinion characterized a woman and the fetus within her as if they were separate entities. It drew a picture of an entity growing within a woman with interests adverse to hers, for which the state — not the woman — was the protector. When the fetus was viable, the opinion held, the state could prohibit abortion except if the woman’s life were in danger.
Suddenly, the decision enabled the anti women (and anti women’s equality) attitudes of some to be cast as pro-fetus. Protection of the fetus, after all, sounded like an extension of the protection of children, with one difference: The only way that the state could protect a fetus was through a woman’s body — woman as vessel as in “The Handmaid’s Tale.” The only way the state could intervene on behalf of the fetus was to undermine a woman’s autonomy, her right to make fundamental decisions about her life.
Like Marlise Munoz, who wanted nothing more than to die with dignity.
Nancy Gertner Cognoscenti contributor
Judge Nancy Gertner was appointed to the bench in 1994 by President Bill Clinton, and retired in September of 2011 to join the faculty of Harvard Law School. Her autobiography, "In Defense of Women: Memoirs of an Unrepentant Advocate," was published in 2011.
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