Bloodless Coup

so in the south carolina case, my inner lawyer wonders, how could a judge possibly permit a jury to make a determination of guilt beyond a reasonable doubt in a case where presumably objective evidence of infection competes with even objective evidence of cocaine abuse (assuming that's the sort of evidence presented). i mean, this isn't really an issue of witness credibility, which typically is left to a jury; it's an almost epistemological question: how can one reach the highest standard of proof under such circumstances. even when it comes to witness credibility, when the only witnesses for the prosecution hopelessly contradict themselves beyond repair, many if not all jurisdictions require the trial judge to deny the factfinder the right to weigh the testimony, the argument being that where not even a single prosecution witness can keep his story straight, no jury could find proof beyond a reasonable doubt.

i can't believe we're going to have to fight this whole battle all over again, but it's hard to see how we'll avoid it. another decade or two of abortion dominating the national debate to the exclusion of such topics as our shameless mistreatment of the elderly, our scurrilous mortgaging of our children's and their children's futures, our who-me-? imperialism, and our increasingly corrupt system. for shame.

(not, however, that i'm not bemoaning the fight itself, which when brought to a progressive's doorstep in such an urgent posture cannot be avoided; i'm bemoaning the renewed urgency of it due to the success of revanchist political interests who, in pretending that this is the most important issue we have to fight over reveal to those who pay attention that what they mean is electoral politics is the most important issue we have to fight over.)

Grrr. The hubris! You may know that one of my boys was stillborn almost four years ago, and we were considered lucky (it's all relative, trust me) because the doctors were able to determine what caused his demise and were able to do so without an autopsy. According to the March of Dimes, even with testing, no cause can be determined in about a third of all stillbirths.

Several points spring to mind. First, the attending doctor and midwife felt when they saw him that cord strangulation was the cause of D's death, but the role of other factors (a cord defect of unknown cause and true knot in the cord) was debated among the doctors and never really settled. Our peri told us chance is a big factor in pregnancy loss, that he'd seen heroin addicts give birth to babies who were ultimately healthy and conscientious mothers who lost their pregnancies. If one of the state's premier peri docs is telling us that, and the causes of fetal demise are sometimes impossible to tease out, how can prosecutors be so sure?

The second point is that we were told before delivery that our insurance would not pay for an autopsy if the docs felt they needed one to determine the cause of death--we would have to pay out of pocket, several hundred dollars. Fortunately it didn't come to that, but what if we couldn't afford it or had opted not to have the autopsy because we couldn't bear the thought of it? What would a salivating prosecutor make of that? Or would these states require bereaved parents to pay for these procedures, wanted or not, to satisfy the law?

Three, does that mean that prosecutors will next go after the mothers of children born with defects or developmental delays?

I swear, it's going to get to the point where you have to carry your uterus around in a ziploc bag so the do-gooders can see what you're about at any given moment.

kcb, I have long admired your decision to share your story (for those who have not yet read it, here).

The NAPW has been involved in the effects of the drug war on women, as prosecutors have gone after women for whom the "defects or developmental delays" are hypothetical, an outgrowth of the crack aby myth. Unfortunately, the zeal behind such policies as this (and the one your wrote about, of the unattended miscarriage bill) is all too real.

update: and on further reading, amp has a link dump up which includes this:

It is important to acknowledge that there many other ways to read the immaculate conception, especially because there are seriously progressive, feminist Christian people engaged in the process of rereading their tradition in light of progressive, feminist values. My goal in offering the reading I have outlined here is not to invalidate theirs, or to trash Christianity, but rather to highlight the metaphorical and therefore ideological infrastructure of the anti-choice movement, not only in its misogyny, which would hardly have required this many words to demonstrate, but also in its undestanding of what it means to be human—because if our humanity, all our individual personhoods, has nothing to do with the myriad intangible things that make up the content of our character (and for the purposes of this argument, I do not care whether that content is good, bad or indifferent), but is rather a consequence of the fact of DNA; if I am, in other words, essentially no different from the bundles of cells that result from the coming together of egg and sperm, then protecting the children-to-be growing in the wombs of pregnant women from the “capricious” choices of free-willed women is a kind of retroactive self-preservation; it is a way of making sure that people are born not simply because parents want them, but because they have a right to be born.

The difference is important: In the second, anti-choice scenario, we were, all of us, potential antagonists against our own pregnant mothers, and they were, all of them, potential antagonists against us. On the other hand, if one is not fully human until after one has been born, this pre-birth antagonism doesn’t exist (unless you’re talking about medical issues where the life of the mother and/or the fetus is at stake.) And so to be human, as the anti-choice movement has defined humanity, is on some level to have been at war with free will even before you were born, not so much your own free will, but rather the free will of others, especially of women, and this war, if you accept the anti-choice logic, is one we are all in together, because we all came from the bodies of women, which means that to win the war it is the bodies of women that we need to control. Humanity, in other words, according to this logic, demands the subjugation of women because women hold the power to end humanity. More to the point, this logic implies that to have survived the pregnancy during which you grew to be born is on some level to have escaped women’s power.

The power of a male God, of course, is one sure fire method of ensuring that we keep on escaping, and so is the power of government. Giving the government the kind of power the South Dakota law does, however, can have unexpected consequences. Look again at the first section of the law:

Section 1. The Legislature finds that the State of South Dakota has a compelling and paramount interest in the preservation and protection of all human life and finds that the guarantee of due process of law under the South Dakota Bill of Rights applies equally to born and unborn human beings.

Essentially, it seems to me that this opens the door to all kinds of government interference in our personal and family lives, kinds of interference that I don’t think the anti-choice movement would appreciate. If a zygote is a human being, for example, couldn’t this section of the law be expanded to include the government’s interest in how my behavior effects the health of my sperm, which is, after all, half a human being? (Okay, this may be pushing things too far, but then I thought declaring a zygote a human being would be pushing things too far.) Couldn’t it be expanded to criminalize behaviors a woman might engage in that could harm her child-to-be, like, say, going skiing in the early months of pregnancy? In other words, doesn’t the state’s interest in the preservation and protection of all human life give it the authority legally to regulate the treatment of that life from start to finish?

Molly has a list of questions, that follow the same track as yours here