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An issue of a woman's rights and a look at legal cases that set a precident

McFall V Shimp:

McFall was dying and needed a bone marrow transplant. Bone marrow is incredibly hard to match. Maybe one in a million people will have identical bone marrow and the odds of someone in the marrow bank having a similar marrow type to you is nearly impossible. If you do not find a match in your immediate family the odds of you finding a suitable match are near zero.

McFall wanted his cousin, Shimp, to undergo testing to see if his marrow matched and further if it did to force him to donate marrow.

The judge ruled that Shimp was not obligated to be forced to undergo an operation for the sake of his cousin because his right to bodily autonomy trumped McFall's right to be alive. The judge ruled that one's bodily autonomy, the right to freely control your body, what happens to it and in it, is the crux of freedom and to remove that would be to undermine the very basis of this nation and of human dignity.



How this relates to the abortion debate: If we grant the allegations of the pro-life side of this debate, that a fetus has a right to be alive, our law still dictates that the right to life does not give one the privilege to use another humans body against their will - this is a legal precedent that has been upheld in many courts in the US.

The fetus's life depends upon the mother's body, however the mother is not obligated to undergo an invasive procedure against her will because the fetus has the right to be alive because the mother's right to control her body trumps that right to be alive, just as Shimp's right to control his body trumped McFalls's right to be alive.

If we grant a fetus the right to life that, in and of itself, does not justify banning abortion, because if one were to ban abortion they would be explicitly giving the fetus a right that no other born person has, namely the right to use another born adult against his or her will as a means for survival.

If one wishes to assert that a right to life is enough to trump a woman�s right to bodily integrity then one must justify this granting of special rights and special privileges that no born adult is permitted to have when a fetus is arguably not even the equivalent of a born person.




It is currently US law that a person’s consent is required for organ donation to occur and that such consent cannot be coerced or forced.

U.S. Department of Health and Human Services Advisory Committee on Organ Transplantation Summary Recommendations to the Secretary



A person's "refusal to donate" organs after death must be honored in all states:

National Conference of Commissioners on Uniform State Laws, Uniform Anatomical Gift Act (1987) http://www.law.upenn.edu/bll/ulc/fnact99/uaga87.htm


Establishing authority of the patient's rights to make medical decisions:

McFall v. Shimp No 78-177711; 10 P~D.&C.&i 90 (C.P. 197 cool 10th Pennsylvania District, Allegheny County.
http://www.ucs.louisiana.edu/~ras2777/judpol/mcfall.html

In Re Angela Carder: Official Transcript of Proceedings Before District of Columbia Court of Appeals, Oral Argument In re Angela Carder No. 87-607 (Sept. 22, 198 cool at 61-78; George Washington University Medical Center Memorandum of Points and Authorities in Support of Petition for Declaratory Relief 1, In Re AC. (served July 8, 1987); Brief of Appellate The George Washington University, filed in the Court of Appeals of the District of Columbia in In Re A. C., at 12-13, 19-20.

A woman with cancer said: gimme chemo, abort now, I don't want a C-section it'll kill me! The hospital forced her to have a C-section at approximately 20 weeks pregnant. They both died. Court ruled "gimme chemo, abort now, I don't want a C-section it'll kill me!" should have reigned supreme, not the hospital's wanting to preserve her fetus. A really great link about it:
http://advocatesforpregnantwomen.org/articles/angela.htm

Cruzan V. Missouri Department of Health, 58 U.S.L.W. 4916 (1990).

Canterbury U. Spence, 464 F.2d 772 (D.C. Cir. 1972)



The rights of the patient to make medical decisions without government intrusion has been consistently upheld:

Schloendorft U. Society of New York Hospital 105 N.E. 92, 93 (N.Y. 1914); The V. Walter Reed Army Medical Hospital, 602 F.Supp. 1452 (D.D.C. 1985);

In Re Farrell, 108 N.J. 355, 529 A.2d 404 (1987);

Bartling V. Superior Court, 163 Cal.App.3d 186, 209 Cal. Rptr. 220 (1984);

Superintendent of Belchertown State Sckool U. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977).



Respecting a patient's right to bodily autonomy when infringing it would save the lives of another:

In Re George, 630 S.W.2d 614 (Mo£t~App. 1982) the court refused to identify dying man's father as potential donor of bone marrow.

In Re Unborn ~qI4 No.84-7-50006-0, Slip Op. at 5 (Wash. Super. C~ Benton/F~a~n Cos.Jur.Div. April 20, 1984) the court denied Caesarean, recognizing that the mother could not be compelled to donate an organ to one of her other children).

In Re Pescinshi, 67 Wis.2d 4, 226 N.W.2d 180 (1975) the court refused to order man to donate kidney to sister in dire need.

In Re Harrel St. Mary’s Hospital, in Florida the hospital sought to force a pregnant Jehovah’s witness to undergo a blood transfusion against her religious beliefs. Though the case was dismissed because the fetus died they said the order would have been reversed if it went through.

McFall v. Shimp No 78-177711; 10 P~D.&C.&i 90 (C.P. 197 cool 10th Pennsylvania District, Allegheny County.
http://www.ucs.louisiana.edu/~ras2777/judpol/mcfall.html

In Re Angela Carder: Official Transcript of Proceedings Before District of Columbia Court of Appeals, Oral Argument In re Angela Carder No. 87-607 (Sept. 22, 198 cool at 61-78; George Washington University Medical Center Memorandum of Points and Authorities in Support of Petition for Declaratory Relief 1, In Re AC. (served July 8, 1987); Brief of Appellate The George Washington University, filed in the Court of Appeals of the District of Columbia in In Re A. C., at 12-13, 19-20.

http://advocatesforpregnantwomen.org/articles/angela.htm



A pregnant woman can do whatever the ******** she wants with her body:

Stallman V. Youngquist, 531 N.E.2d 355, 359 ('11.198 cool refusing to recognize a tort of maternal prenatal negligence;

Commonwealth v. Pellegrini, No.87970, Superior Court, Plymouth, Mass. slip op. (Oct.15, 1990) Dismissmg prosecution of woman for drug use during pregnancy, holding that state's interest in protecting potential human life does not override woman's right to privacy;

Michigan V. Bremer, 90-32227-FH, Circuit Court for the County of Muskegon, slip op. (Jan.31, 1991) (followed Pellegrini);

UAW V. Johnson Controls, Inc., No.89-1215 (Marc. 20, 1991), slip. op. interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq., rejecting an employer's fetal protection policy and concluding that "decisions about the welfare of future children must be left to the parents who conceive, bear, support, and raise them rather than to employers who hire those parents



Sex (remote cause) does not legally cause pregnancy, but rather the implantation of the fetus (proximate cause) does cause pregnancy, based on tort laws:

The appellate court in Louisiana distinguished proximate cause from remote cause in this often cited tort case. A landscaping company did some work at the owner's request, blocking the cattle on his farm from being able to reach water. After two weeks all the cattle died. The farmer sued saying the landscaping is what caused the cattle to die. The court ruled that the landscaping was the remote cause that contributed to the cattle dying, however it was not the proximate (direct) cause of the cattle dying. The farmer had ample time to move the cattle but did not. The landscaping did not kill the cattle, the farmer's not moving the cattle caused their dehydration.

A remote cause is necessary for the existence of the effect (just as sex is necessary for the existence of pregnancy) the court had ruled, however it stated such a remote cause “does not necessarily imply the existence of the effect.” (the landscaping didn't necessarily mean the cattle would die, nor does sex necessarily mean that a pregnancy will occur)

Herbert, 210 So.2d., p74 (quoting 65 C.J.S section 103 at 1131).

The court also noted that although a “person may be negligent in the performance or omission of some duty owed to the person injured, no liability attaches unless it appears that there was a causal connection… [which was] the proximate or legal cause of the injury, rather than a remote cause, or one merely causing a condition providing an opportunity for other causal agencies to act.” Herbert, p74 (quoting 65 C.J.S. Negligence section 104 p 1135).