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L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 555, January 31, 2010

"The days of political correctness are numbered"

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I Told You So
by L. Neil Smith
lneil@netzero.com

Attribute to The Libertarian Enterprise

Several years ago, I wrote a novel called Hope with Aaron Zelman, founder of Jews for the Preservation of Firearms Ownership (JPFO), concerning the first libertarian president of the United States.

The protagonist, electronics billionaire Alexander Hope, was a Catholic and personally opposed abortion. (In a sequel I've imagined, he and his young bride will have half a dozen kids.) But he also opposed the effort, at any level of government, to legislate against it.

As Hope explained to another of the book's characters—a Texas congressman transparently based on Dr. Ron Paul—laws forbidding abortion would create the most nightmarish police state imaginable, mandating the registration of all pregnancies, periodic compulsory examinations, on behalf of the State, of the pregnant woman, a presumption of guilt in the case of spontaneous abortions, and the incarceration (and, quite possibly, the physical restraint) of any female who failed to abide by her government doctor's orders with regard to maintaining the health and well-being of her fetus. She could be severely punished for child abuse, if she smoked or drank alcohol.

See: "Abortion: An Excerpt From Hope"

To me, these predictions seemed unremarkable, even pedestrian, considering what government has become in this land of the formerly free. But the reaction by those among us who, for one reason or another, oppose the absolute right of a woman to control her most personal property—her own body and the fetus drawing sustenance from it—ranged from annoyance to outrage. Most took the position that "It can't happen here". One good friend called the argument a "red herring", meaning that it was an irrelevant distraction. But for me it was, and remains today, a matter of consquences, unintended or otherwise.

Not to mention that, if you let things like this happen to one group of individuals, there will be nothing to stop it happening to everyone.

Now, from MyWay.com, a web news portal apparently shared by the Associated Press, the New York Times, USA Today, and FOX News, we have word that, once again, I was right about the future—horribly right; believe me, it's no fun at all being right about this kind of thing—and all of my critics were dead wrong. I'm going to quote the story in full here, in case it mysteriously disappears from the 'Net tomorrow:

FLA. WOMAN FIGHTS RULING THAT KEPT HER IN HOSPITAL

http://apnews.myway.com/article/20100126/D9DFDKLO0.html

Jan 26, 7:04 AM (ET)

By Bill Kaczor

TALLAHASSEE, Fla. (AP)—Samantha Burton wanted to leave the hospital. Her doctor strongly disagreed, enough to go to court to keep her there.

She smoked cigarettes during the first six months of her pregnancy and was admitted on a false alarm of premature labor. Her doctor argued she was risking a miscarriage if she didn't quit smoking immediately and stay on bed rest in the hospital, and a judge agreed.

Three days after the judge ordered her not to leave the hospital, Burton delivered a stillborn fetus by cesarian-section.

And six months after the pregnancy ended, the dispute over the legal move to keep her in the hospital continues, raising questions about where a mother's right to decide her own medical treatment ends and where the priority of protecting a fetus begins.

"The entire experience was horrible and I am still very upset about it," Burton said through her lawyer. "I hope nobody else has to go through what I went through."

Burton, who declined to be interviewed, is appealing the judge's order. She isn't asking for money but hopes to keep her case from setting a precedent for legal control over women with problem pregnancies. She also worries it could prevent women from seeking prenatal care.

State Attorney Willie Meggs stands by his decision to seek the court order after being contacted by the hospital. "This is good people trying to do things in a right fashion to save lives," he said, "whether some people want them saved or not."

Burton is in her late 20s, has two young daughters and a common-law husband and holds down a blue-collar job, said her lawyer, David Abrams. She didn't want an abortion, had obtained prenatal care and voluntarily went to the hospital after experiencing symptoms she'd been told to look out for, he said.

But she didn't like the care she received at Tallahassee Memorial Hospital. She said her doctor, Jana Bures-Foresthoefel, was brusk and overbearing. Her lawyer said bed rest for difficult pregnancies is a controversial issue because it can cause some complications like blood clots. Abrams said smoking by itself doesn't cause miscarriages.

The mother said she wanted the option to seek care at another hospital or to go home so she could care for her two daughters.

"I was desperately hoping to receive the care I needed to save my baby," Burton wrote in her statement. "However, after a few days there, I did not feel I was receiving the care I needed, and instead of being allowed to leave or go to another hospital, I found myself being ordered by a judge to stay at Tallahassee Memorial and submit to all medical care from its hospital staff, whether I agreed or not."

The doctor and hospital officials declined to comment, referring calls to the state prosecutor.

American Civil Liberties Union lawyer Diana Kasdan said if the ruling stands it could lead to the state virtually taking over the lives of pregnant women, including telling them what they should or should not eat and drink and what medications they must take.

"It would be a horrible precedent," Kasdan said.

The state disputes that scenario, arguing Burton's case is rare—the only one out of 30,000 births in the Tallahassee area over the last 10 years.

Abrams said Burton's condition didn't merit such extreme action. Her symptoms were not that unusual, she wasn't in active labor and the state failed to show why bed rest at Tallahassee Memorial would have been any better than at another hospital or home, he said.

The judge ruled the best interests of the fetus overrode Burton's privacy rights, but Abrams disputes that. He notes the Florida Constitution, unlike its federal counterpart, has an explicit and strong privacy right, which the state Supreme Court has said guarantees a competent person the right to "choose or refuse medical treatment."

"If you apply the best interest of the child standard, the woman becomes nothing more than a fetal incubator owned by the state of Florida," Abrams said.

Circuit Judge John Cooper held an emergency hearing by telephone and ruled after taking testimony from Burton and Bures-Foresthoefel, but without obtaining a second medical opinion. The doctor said Burton's membranes had ruptured, that she was having early contractions and the fetus was in a breech position.

Judicial rules bar Cooper from commenting on pending cases beyond what is said in the court record.

Meggs, the prosecutor, said there was no time to get a second opinion because the situation was so dire: Burton was threatening to leave the hospital and her doctor believed that would have endangered the fetus.

"Sometimes there is not time for two doctors," Meggs said. "It's not time for a committee."

A three-judge panel of Florida's 1st District Court of Appeal heard oral argument earlier this month but has not indicated when it will rule.

There have been a few other cases nationwide that involve similar efforts by courts to intervene in pregnancies:

  • In 1987, a Washington, D.C., judge ordered a woman who was dying of cancer to have a C-section, which she had refused, to save her fetus. The baby died within two hours of delivery and the mother died two days later. An appeals court later ruled the judge should not have ordered the C-section.

  • In 2003, prosecutors in Salt Lake City charged an acknowledged cocaine addict who had a history of mental health problems with murder when she refused to have a C-section for two weeks before finally agreeing to the procedure. One of her twins died in the womb during the delay. Through a plea deal, the charge was later reduced to child endangerment.

  • In 2004, a hospital in Wilkes-Barre, Pa., obtained a court order to force a woman to have a C-section because her seventh baby was oversized, but the order was too late. The mother, whose first six children each weighed nearly 12 pounds at birth, went to another hospital and delivered an 11-pound, 9-ounce girl naturally.

  • Also in 2004, a judge in Rochester, N.Y., ordered a homeless woman not to get pregnant again without court approval after she lost custody of several neglected children.

Dr. Michael Grodin, a physician and professor of health law, bioethics and human rights at Boston University, said doctors should never resort to court orders.

"People have the absolute right to refuse treatment...," Grodin said. "It's unconscionable.... It's an affront to women."

******

Libertarianism consists of only two principles: 1) that all of us are the exclusive owners of our own lives; and 2) no right exists to initiate physical force or the threat of force against anyone for any reason. Nor would any real libertarian advocate or delegate initiated force.

Laws against abortion—indeed, "preventive" laws of any kind—violate those principles and are fundamentally un-American, into the bargain.

What's worse, they establish precedents—how many things do you like that are "bad" for you, according to one "authority" or another?—that threaten us all with life in a straitjacket, inside a padded cell.

I told you so back in the 1970s, about the police state growing from fascistic airport policies. I told you so about abortion and I have been proven right. Please don't make me say "I told you so" again.


Four-time Prometheus Award-winner L. Neil Smith has been called one of the world's foremost authorities on the ethics of self-defense. He is the author of more than 25 books, including The American Zone, Forge of the Elders, Pallas, The Probability Broach, Hope (with Aaron Zelman), and his collected articles and speeches, Lever Action, all of which may be purchased through his website "The Webley Page" at lneilsmith.org.

Ceres, an exciting sequel to Neil's 1993 Ngu family novel Pallas is currently running as a free weekly serial at www.bigheadpress.com/lneilsmith/?page_id=53

Neil is presently at work on Ares, the middle volume of the epic Ngu Family Cycle, and on Where We Stand: Libertarian Policy in a Time of Crisis with his daughter, Rylla.

See stunning full-color graphic-novelizations of The Probability Broach and Roswell, Texas which feature the art of Scott Bieser at www.BigHeadPress.com Dead-tree versions may be had through the publisher, or at www.Amazon.com where you will also find Phoenix Pick editions of some of Neil's earlier novels. Links to Neil's books at Amazon.com are on his website


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