In the family law area, decisions that parents make can have unintended consequences that have not been thoroughly considered. The same is true for decisions made by judges in cases that are before the court. As a substitute Judge in the 1980’s, I heard a contested custody case between grandparents of a child. They were both seeking custody because neither parent of the child desired to be its parent and from the evidence were not capable of being his caregiver.
The evidence was that both sets of grandparents would be loving, capable, and caring caregivers of the child. Why they could not agree on how to do that is beyond me, as the parents did not care. One set of grandparents, however, had urged the child’s mother to obtain an abortion because they felt that the parents would not be interested in or capable of raising the child.
The other grandparents attempted to use that against the grandparents that had advocated for the abortion. As it was in the best interest of the child that all the grandparents be involved in his life, I was able to make a decision that made that happen while not satisfying either set of grandparents.
As a new juvenile and domestic relations judge in the early 1990’s, I was faced with a variety of cases that were impacted by the Crack Cocaine epidemic that spread across the country. We had juveniles charged with possession and distribution of drugs and a detention center that was so full that our sheriff was transporting some to Southwest Virginia to the only available detention home.
We also had women who were mothers of children and who were also pregnant who came before the court on civil petitions of abuse and neglect of their children. Drug usage was a major contributing factor in these cases. We were able to help them with treatment programs, if they wanted them, to address their addiction but not always. We also had pregnant women who were court involved for other reasons through our adult family criminal court jurisdiction.
In Virginia, during my time on the bench, a fetus did not have legal standing until it was born. Despite my desire to help some mothers to get treatment and stop poisoning their unborn child with drugs, excessive use of alcohol, and tobacco, no one would bring a case for consideration.
From my reading of the news articles and some of the draft opinion from Justice Alito, I see that those states that ban abortions may be creating for themselves some unintended consequences. They are collateral legal issues about which may not have given much thought.
With the Supreme Court finding that a fetus is a person, it has rights. So, what behaviors by the mother will negatively impact the fetus, and how will those states that prohibit abortions classify those behaviors in the criminal and civil arenas and how do they intend to take action and under what circumstances to impose the will of the state on the mother?
Will a pregnant woman who takes illegal drugs be subject to being charged with distribution of those drugs to the fetus? If there is a state that allows for medical marijuana and recognizes the fetus as a person, will the mother be allowed to take the marijuana when the child does not need it? Will the children born of these women be taken away from them as abused and neglected children and placed in state custody with the additional trauma to these children, their parent (s), and the cost to federal and state taxpayers?
We know that the excessive use of alcohol and tobacco during pregnancy impacts the health of the unborn child and can cause considerable damage to the child’s brain development and general health. Will the mother be subject to civil claims by the fetus or on its behalf by the state or the father of the child for the costs to treat, train, and care for the damaged or injured child that is born? Will the mother be able to be criminally charged as she delivered substances to the fetus that are legal for her but illegal for the fetus to receive? Will the state confine the mother in jail or a treatment facility at significant cost during her pregnancy to ensure that the child will not be receiving illegal drugs or other legal but harmful substances through the mother?
I see ads on television for different legal drugs and have noticed the warnings that women who intend to become pregnant or are pregnant should not take the drug. As the drug may or may not be life saving for the mother, how the state law may read about abortions and the woman’s right to address her health issues could impact whether the mother-to-be can legally take the legal drug that helps her but harms the fetus.
With some states there appears to be legislation that requires the identification of the doctor that prescribed a drug related to an abortion. Would he or she be subject to such identification requirements if the drug were needed by the pregnant woman but detrimental to the health and well-being of the fetus?
What about a pregnant woman who fails to wear a seat belt and is in a car accident where the fetus is injured or killed. Would she be able to be charged with battery or negligent homicide, even if the car accident were not her fault? Would there be civil liability on her and the insurance company that insures her car for her negligence because she did not wear the seat belt that is required by state law?
Another question I have is whether a woman who goes to another state for a legal abortion can ever return to her home state where an abortion is illegal. Would her home state still be able to prosecute her for having the abortion by simply passing a law that made it a crime to go to another state to obtain an abortion? Would the father of the child be able to have a civil claim against the woman who carried the fetus for what would be in the home state an unlawful death of the fetus?
The proposed decision by Justice Alito or some modification that ends the right to an abortion under Roe v. Wade and subsequent U.S. Supreme Court decisions might be claimed to be a victory by some. I think that it could well be a disaster for those states that want it and the people that live there.
Thanks for reading. I welcome your thoughts.
Judge Rideout is the former Chief Judge of the Alexandria, VA Juvenile and Domestic Relations District Court (1989-2004). From 2004 until the present he has consulted in different states to support their efforts to improve their child welfare systems. From 2016 to early 2021, he was the Ward 1 Commissioner on the Cambridge City Council. Throughout his career, he has been an advocate for improving the lives of children in his and other communities. He can be reached at [email protected] .
DEIRDRE LAMOTTE says
This is nothing but a can of worms and it will get only worse. These bans are essentially outlawing a medical procedure that is often necessary, particularly after a miscarriage. It is called a D & C and it heads off fatal infections. Does one think they’ll be any nuance in these laws? What religious zealot hospital staff might report a woman or her doctor?
If one orders the “morning after” pill, will the police obtain warrants to search one’s home? These positions are being codified in many states now.
Having lied under oath prior to being confirmed that they would protect the laws of our land, this Court is using political/religious philosophy to guide their constitutional contortions. The majority of Americans favor abortion rights because it is a human right. The issues of privacy concerning a woman’s body remain the same as it did in 1973. The only difference is we have a predominantly far right Catholic Supreme Court. As such, it is using religion to change the law.
And, I don’t care if they believe in Jesus and the Twelve Disciples or Snow White and the Seven Dwarfs, religious ideation has no place altering our laws. Ever. This is 2022, not the time of the Inquisition. There is a huge injustice from these Justices, and they will be hounded into their grave with this ruling.
It will never stop abortion.
So, the federal government can pay for the ED pills so that limp members can stand at attention (too much alcohol and carbs guys) but the federal government under the GOP want to never allow government to pay for birth control or abortions that their pills may have caused. Even in rape?
Vote BLUE forever!
Anne Cole Johnston says
If the Supreme Court decides that a fetus is a “person,” here’s another mind-boggling unintended consequence:
Per current IRS rules, an aborted fetus meets one of the criteria for eligibility for a child tax credit:
“If your qualifying child was alive at any time during [the tax year]. . . .
the child can be your qualifying child for purposes of the Child Tax Credit.”
(Note: A child credit must meet income requirements.)
The other IRS requirement is for the fetus to have lived with the person claiming the tax credit for half of the tax year. This means that fetuses that miscarry in the 6th month of pregnancy during a tax year qualify for a child tax credit.
Unintended consequences, for sure.
Linda Baker says
Ahh Virginia, where the previous Governor Northam said if the baby is still alive after being aborted that they will keep it comfortable until it passes, unless the parents decide they want medical care given to resuscitate it. This is a LIFE! Period. End of sentence. What has happened to our society, where babies are treated like trash you can throw away if you don’t want it. Very sad!! The examples you presented Judge is another sad example of our society, and the fact they would try the mother in court instead of assisting her and educating her while she is pregnant is another prime example of what poor shape this world is in. We have allowed hate, drugs, poor education, the wrong social patterns lead our way. When does it stop? When you believe it is perfectly ok to end a life, that is the beginning of the end for all of us.
Deirdre LaMotte says
Sounds like the the ridiculous Governor of Virginia, the man who campaigned as the anti-Trump, then immediately became Trump, has succeeded in lies.
Sorry, you will not listen to logic, A birthed child is not killed. I don’t care what the guy with the the bow tie says on FOX.
You are so wrong. A woman who is pregnant has the right to abort up to an age decides by ROE , a compromise.
If you want to scream about death, perhaps take your your ire to the BORN a killed by guns at a ridiculously high rate, we should all be shamed by this and we are not because there are those who benefit from the absurd amount of weapons in our nation.
Deirdre LaMotte says
Your example is what right wing fanatics use..just like abortion as birth control. NO ONE is talking about killing babies. If a deformed child who will not live is kept “comfortable”, what the heck else do you want?
An embryo is not a baby no matter what anti- autonomy people want to rile on about. And that embryo belongs to the woman and she alone decides whether to continue with the pregnancy.
Anti-choice people need to get a life. Pardon the pun.
Linda Baker says
Deirdre you’re living in a bubble. You believe everything the MSM tells you to believe. You have NO idea how many late term abortions are happening and what is being done with these babies. NO idea at ALL. Don’t talk down to me like I am an idiot. I don’t watch the MSM, I am more in depth than you can even imagine in my research! YOU keep believing the puppets on your TV. You may want to research the new abortion agreement that was passed in NY. Maryland is not much better. And you say no late abortions are happening? Show me the proof! And not some liberal write-up that is covering everything up.
robin stricoff says
What an interesting perspective Steve. So if one follows your logic and legal argument:
There could be court appointed fetus advocates. Any person or establishment that sells or otherwise gives or shares nicotine,alcohol, over-the counter or perscription drugs (to a pregnant women) that may harm a fetus could face legal consequences. Individuals could report any person(s), business or establishment that fails to take action protecting the fetus.
Rev Julia Hart says
I first have to say, I am not a lawyer. I am clergy. I had one ethics course in Seminary. And one on Systematic Theology. I am fully retired; again.
I feel that the whole subject has been wrongly labeled and argued from the get go. The question is: Is a person’s body their own or can someone else or something else own that body? The something else in this case is the Government. Can the US, a State, or local Government own a person’s body?
I think the idea of someone owning another person was decided through The Emancipation Proclamation and other documents and judgments. The answer was no.
My person, my body is owned by no one or no thing. I own my body. I am autonomous, as is every ‘body’, male or female. So does the Government, any Government have the right to make decisions over or for my body. Every fiber of my being, intellect, emotional or spiritual cries out NO!
ONCE A Government claims that authority over a person’s body, mine or anyone else’s we are moving away from a person’s right to autonomy. The Government is taking my right to my body away from me; the right to make my choices and decisions for my self, my body. I am the authority over my body.
That does not mean I am a law unto myself, right? To live in community we must have rules and regulations for the betterment of the whole, of which I am a part. But yet I maintain my autonomy.
As I said at the start of this, I am not versed in the law. I do feel that the primary issue here is the autonomy of an individual. And, that this ‘case’ has been presented and argued wrongly from the start.
Just another way to enter the conversation, less inflammatory.
Peace
Stephen Schaare says
Good morning Judge, This was your best writing to date.
As a simple man, may I posit a simple thought? Birth Control. This may be an illustration of “Occam’s razor”.The simplest solution is usually the correct one.