Gov. Jeb Bush of Florida triggered a national controversy last Tuesday when he overruled attorneys for his own state's Department of Children and Families Services and ordered them to seek the appointment of a guardian for the fetus of a severely disabled woman who had been raped while in a state facility.
The woman, identified in court papers only by her initials, JDS, suffers from severe mental retardation, cerebral palsy, autism and seizure disorder, and is impaired in her ability to provide adequately for her own care and protection. She is over five months pregnant; once she reaches 24 weeks, her ability to receive an abortion is severely limited by Florida law.
JDS has no family. She has lived in a state facility for 19 years. Her pregnancy is being treated as a rape because she is too disabled to have consented to sex.
Initially, the state was to seek the appointment of a guardian for her, and for her child, if and when she gave birth. But Bush insisted that they seek a guardian for the fetus, as well.
The judge last Wednesday delayed any decision on appointing any guardians, which may have the practical effect of denying her the right to an abortion, since she is nearing the 24-week point.
JDS deserved protection from intercourse. She didn't get it. Now, instead of protection, she is being used again, as a political pawn.
Relying on past court decisions, state attorneys had concluded that seeking the appointment of a guardian for the fetus would be inappropriate at this point. They were right.
This is not the Laci Peterson case. In that case, Laci Peterson had made the decision to continue her pregnancy to term. Treating the fetus as a person for purposes of the murder statute protected the mother's decision. Doing so here does exactly the opposite, setting up the possibility of a conflict between the mother's rights and the fetus's interests, and undermining the right to privacy that a disabled woman is just as much entitled to as one who is fully competent.
No one is sure whether this woman is capable of a normal delivery or what impact giving birth may have on her. What if further tests should prove that carrying the pregnancy to term could endanger the health or the life of the mother? What if further tests should prove that the fetus suffers from serious birth defects?
Were this woman not disabled, it would be up to her, in consultation with her physician, to decide whether to continue her pregnancy. Because she is disabled, those decisions should be made by her guardian.
But the fetus may have a different interest. The fetus might survive the pregnancy even if the mother would not. The fetus's health interests may be different than the mother's.
Under Roe vs. Wade, a woman has a right to privacy. It belongs to her