When Choice Becomes Tyranny

There was a time when the abortion debate focused on the right of a woman to choose whether to end her pregnancy without the threat of criminal penalties or government harassment. How far this debate has moved from there was evident in a courthouse in Salt Lake City last week.

Melissa Ann Rowland stands accused of refusing to have a caesarian section to save the lives of twins she was carrying. According to doctors and nurses at a hospital there, Rowland refused the C-section because of the scar that would result and allegedly stated she would rather “lose one of the babies than be cut like that.” Rowland has now been charged with murder after one baby was born stillborn and the other barely survived.

The president of the National Organization for Women, Kim Gandy, proclaimed that she was “aghast” that Rowland had been charged criminally and insisted that charges would never have been brought if Rowland were a “soccer mom,” rather than a drug user with a checkered past. Other groups have called the charges an attack on motherhood or a conspiracy of anti-abortion advocates.

For my part as a pro-choice law professor, the only thing more shocking than the alleged indifference shown to these babies is the equal indifference shown by pro-choice groups in blindly embracing this cause.

According to the criminal complaint, starting on Dec. 25, 2003, doctors and nurses advised Rowland repeatedly that the twins were in danger. Doctors reportedly urged Rowland to have a C-section immediately because the twins were experiencing fetal heart problems and were developing poorly and she had dangerously low amniotic fluid. The doctors told her repeatedly that without a C-section the babies faced severe harm or death. Hospital staff reported she appeared indifferent to the fate of the babies.

On Jan. 13, Rowland showed up at a hospital in labor. Emergency room doctors and nurses reportedly attempted to persuade Rowland to have an emergency C-section, but, accordingly to the criminal complaint, she “was uncooperative and continually insisted on going outside for a smoke.” After she finally yielded to their demands, a C-section was performed, but it was too late. One baby died and the other twin required stimulation, oxygen, intravenous support and antibiotics to survive. Both Rowland and the surviving twin tested positive for cocaine. The medical examiner’s office determined that if Rowland had had the surgery when the doctors originally urged her to, “the baby would have survived.”

Rowland has a prior record of abuse. Four years ago, she pleaded guilty to simple assault, reckless endangerment and endangering the welfare of her daughter, then 2. Rowland was seen beating the girl in a store after the child grabbed and ate a candy bar. Rowland’s abuse was so shocking that roughly two dozen customers and store employees formed a human chain around her car to prevent her from leaving with the girl.

The willingness of pro-choice groups to embrace Rowland reflects their extreme view of abortion as an absolute right in our constitutional system. But in our system, there are no absolute rights; our constitution is based on a balancing of interests.

Even the oldest and most fundamental rights like free speech or religion must yield in some cases to compelling state interests.

Yet, when it comes to reproductive rights, NOW and other groups reject even the most basic limitations -- leaving reproductive rights so sacrosanct that even the most depraved acts by a mother cannot limit her “right to choose.”

Though authorities’ decision to charge her with first-degree murder (rather than manslaughter) seems excessive, I see no reason why Rowland should not be charged criminally. These twins were not immature fetuses at an early stage of development but were at full term and completely viable outside the womb, yet she knowingly withheld a common, safe surgical procedure while the life drained out of them.

No one would disagree that, if they had been delivered, Rowland could be charged criminally for any physical abuse. However, NOW is insisting that the babies had no rights until delivery, and that a mother can feed them cocaine, refuse pleas to save them and potentially cause the death of two fully developed babies at any time until birth -- a position that has little legal support and even less basis in morality.

The decision of NOW and other groups to defend Rowland is only the latest evidence of how far these organizations have moved to the extreme. This month, NOW, the ACLU and Planned Parenthood opposed a parental notice law in Florida as a threat to the right to abortion -- even though most pro-choice voters support parental notice. Lynn Paltrow, executive director of the National Advocates for Pregnant Women, has declared the charges against Rowland an “assault on motherhood.” But the case is no more an assault on motherhood than an embezzlement case is an assault against capitalism.

Even referring to “the twins” or the “babies” has drawn the ire of these groups. Indeed, Paltrow has vehemently objected to any effort “to personify the fetus.”

Rowland deserves a trial and a chance to prove that the allegations against her are false. This includes a possible defense of insanity, which has been alluded to by these groups.

But let’s be clear: What Rowland is accused of doing is not “bad timing,” as stated by NOW’s Gandy. If proven, it is an act of unspeakable indifference to the lives of two babies. NOW’s Pavlovian response to this case has nothing to do with choice. It is about choice without consequences; a notion of absolute autonomy that borders on individual tyranny.

Jonathan Turley is a law professor at George Washington Law School and drafted the Florida parental notice amendment.