Unborn Victims of Pollution

by Kelpie Wilson

t r u t h o u t | Perspective
Thursday 25 March 2004
www.truthout.org

The Senate today passed the Unborn Victims of Violence Act (UVVA). "Abortion has nothing to do with this bill," said proponents. Indeed, the bill's authors declared that they specifically exempted abortion. "We'll come back and debate that issue some other time," said Senator Graham of South Carolina. And without a doubt, that debate will be easier for the anti-choice side now that it is enshrined in federal law that a two-celled zygote - a fertilized egg - is a fully human being that can be the victim of a crime.

Passage of UVVA will allow prosecutors of certain federal crimes to now name two victims instead of one. Proponents say it is about "justice for our kids" and "protecting our children," and yet, something's not quite right about that.

Will this bill really do anything to stop violence against pregnant women? Will it do anything to protect fetuses? Is there not a huge array of measures that Congress could consider that would do much more to protect women and fetuses?

Take as just one example, the problem of bioaccumulating toxins. These toxins, including mercury, dioxins, PCBs and lead, do not break down in the environment. Instead they build up in organisms, including fish, wildlife and humans. These toxins can have adverse effects on pregnant women, fetuses and babies. More than 8% of women of childbearing age have blood mercury concentrations higher than the level considered safe. EPA scientists estimate that as many as 630,000 babies each year may be exposed to mercury levels in the womb high enough to cause permanent brain damage.

The primary source of mercury pollution is coal burning power plants. Mercury in the air ends up in rivers, lakes and oceans and accumulates in the flesh of fish. For this reason, both the U.S. EPA and the European Union recently issued advisories that pregnant women should limit consumption of fish. Canned albacore tuna is especially high in mercury and pregnant women should not eat more than six ounces a week.

Mercury emissions are currently unregulated and there have been intense debates over how they should be limited. The Bush Administration decided in December that mercury should not be regulated as a toxic substance requiring maximum pollution controls, reversing a Clinton era determination. Instead, the Administration proposes to allow nearly seven times more annual mercury emissions for five times longer than current law.

To achieve even these inadequate reductions, Bush's EPA wants to use a "cap and trade" policy that would allow some power plants to keep spewing mercury at high levels by purchasing pollution credits from power plants that reduce their emissions. One big problem with this scheme is that it would create mercury "hot spots" in neighborhoods around high emitting plants. Unborn fetuses in the wombs of mothers living in those neighborhoods would be assaulted by toxic, dangerous pollution doing violence to their developing brains.

Let's have a bill in Congress that addresses that threat to fetuses and women.

Listening to the Senate debate on C-Span today, it was ever so clear that UVVA is not about doing something real, but about political positioning.

If the issue is protecting women and their unborn children from violence, then that issue could have been substantively addressed by adopting Senator Patty Murray's Domestic Violence Protection amendment. Under Bush, domestic violence prevention programs have been cut by 39 million dollars and other critical funding frozen. "I'm tired of hearing the excuses," Murray said. She said she was offended by a report from the Chamber of Commerce that her amendment was irrelevant and would hurt business. Murray's co-sponsor, Senator Landrieu, asked: "What have we accomplished here today for women?" She noted that Murray's amendment had been introduced as a bill three times but the Republican leadership never saw fit to mark it up. It failed to pass today.

If the issue is enhanced criminal penalties for harm to a woman and her family from the loss of an unborn child, then that issue could be addressed by the Motherhood Protection Act, offered as a substitute amendment by Senator Feinstein. It would create a separate criminal offense for harming a pregnant women and offer penalties matching those in UVVA. But proponents were adamant in the Senate today that the substitute would completely undermine what they are trying to do. The amendment failed.

And just what are they trying to do? To answer that question, Senator Feinstein read from a Republican strategist's playbook that the true intent of the new law is to "dismantle Roe v. Wade, brick by brick." The intent is to establish a legal definition that personhood begins at conception in opposition to the Roe v. Wade standard of fetal viability outside the womb. The intent is to criminalize abortion.

This war against legal abortion and reproductive freedom is an old, old story, a campaign that goes back to the beginnings of civilization when the state first desired to establish rights over a woman's reproductive capacity. One of the first written legal codes, Middle Assyrian Law (circa 1400 BC), made abortion a capital crime on the level of high treason against the king. The offending woman was to be impaled and denied sacred burial. Yet at the same time, the father retained the right to expose unwanted female infants. This ultimate double standard was in the interest of the state which required women to produce the maximum number of male soldiers for the expansion of empire.

Empire and the ideology of growth have ruled human lives for millennia now. As we reach the limits of growth, we are degrading our water, air, agricultural productivity and climate at a rapid rate. We risk leaving the unborn children of the future a planet that can barely sustain life, much less prosperity.

Still, the double standard of concern for the lives of fetuses and infants continues. When it serves the ideology of growth at all costs, by setting a precedent that could strike down abortion rights, fetuses, embryos and zygotes all become sacred life. When it does not serve the growth ideology, as when protection of fetuses requires the installation of costly pollution controls, then fetuses have no rights.

The most revealing moment in today's Senate debate was the argument of the Senator from Alabama. In his folksy manner, he said, to paraphrase: "Well I was in my office the other day when I received a visit from one of our great international corporations. I asked those people what their problems were; what did they need; what could I do for them. They said one of their biggest problems was the Family and Medical Leave Act and how it was costing them a lot of money." The senator went on to argue that Patty Murray's Domestic Violence Protection amendment was more of the same and would be much too costly and bad for business.

One of the key arguments used by proponents was that thirteen states already have UVVA type laws and nothing bad has happened to women's rights - yet.

In fact, according to the Center for Reproductive Rights, anti-choice prosecutors have used similar state laws to prosecute pregnant women for behavior such as alcohol use, suicide attempts, and drug use that is potentially harmful to a fetus. One woman was even prosecuted for failure to follow her doctor's orders to remain on bed-rest.

The National Advocates for Pregnant Women say that since South Carolina passed a UVVA type law in 1984, more than fifty women have been arrested for allegedly harming their fetuses. Only one man has been charged with this crime.

On March 11, under Utah's UVVA law, Melissa Ann Rowland was charged by the Salt Lake City district attorney's office with murder when one of her twins was born dead after she refused a caesarean section.

In an earlier hearing on UVVA, Juley Fulcher of the National Coalition Against Domestic Violence testified: "While the Unborn Victims of Violence Act specifically exempts the mother from prosecution for her own actions with respect to the fetus, it is easy to imagine subsequent legislation that would hold her responsible for injury to the fetus, even for violence perpetrated on her by a batterer, under a 'failure to protect' theory."

With some knowledge of the long history of struggle over women's reproductive freedom, we can predict how things will go. Say we finally find a way to attach criminal penalties to mercury pollution. When babies are born sick or dead from mercury poisoning, polluters will not be prosecuted for the murder of fetuses. Instead, creative pro-life prosecutors will find a way to blame the women for eating too many tuna fish sandwiches.