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Sherry F. Colb

Why A Botched Abortion Case Should, and Does, Inspire Outrage: The Sycloria Williams Story


Wednesday, April 1, 2009

In 2006, Sycloria Williams went to a clinic in Florida to have an abortion. At that time, she was evidently between 21.5 and 23.5 weeks pregnant. As part of the procedure, the doctor – Pierre Jean-Jacque Renelique – inserted laminaria sticks inside Williams's cervix to cause dilation and gave her a prescription for a drug she should later take to begin inducing labor. The next day, Williams appeared, as instructed, at a different clinic for the completion of the abortion procedure.

Ordinarily, a provider would then dismember the body of the fetus inside the womb and remove the remains through the patient's vagina. In Williams's case, however, Dr. Renelique did not arrive in time. While waiting for hours at the clinic, Williams delivered her fetus herself, and the fetus was apparently alive and gasping for breath when it emerged. The staff then reportedly became extremely upset, and chaos reigned.

As this was going on, an owner of the clinic, Belkis Gonzalez, allegedly entered the room, cut the umbilical cord with a pair of scissors, and placed the live fetus into a biohazard bag, after which she sealed the bag and placed it into a trash receptacle (which was later hidden and then discovered by police).

After a criminal investigation that lasted over two years, the Miami Dade State Attorney brought felony charges against Belkis Gonzalez for tampering with evidence and for practicing medicine without a license. Various pro-life advocates have expressed disappointment that Gonzalez was not also charged with homicide, and Sycloria Williams has brought a civil suit against Gonzalez for wrongful death.

The case and its very disturbing nature expose some of why the abortion issue generates the passion and moral controversy that it does.

Why This Was Not An Abortion Case At All

For both pro-choice and pro-life advocates, the facts of this case are unsettling and even shocking.

An important feature of the facts that distinguishes what occurred here from abortion more generally is that if the narrative alleged by the prosecution and by Sycloria Williams is accurate, then Belkis Gonzalez – the woman who is said to have placed a live fetus into a biohazard bag – did something that goes well beyond what can be called "terminating a pregnancy."

Indeed, Gonzalez apparently had nothing to do with the termination itself: She did not dilate Williams's cervix or induce labor or otherwise play any role in removing the fetus from Williams's body. It was only after Williams had given birth to her fetus that Gonzalez cut the umbilical cord and deposited the allegedly live, writhing, breathing infant into a biohazard bag, along with gauze and other garbage.

One might argue, as some pro-life advocates have, that there is no meaningful difference between what Gonzalez did and what an abortion provider does, because in both cases, a fetus is killed. This argument, however, ignores one of the main premises of the right to abortion – the bodily-integrity interest of the pregnant woman. Particularly at the later stages of pregnancy, the right to abortion does not protect an interest in killing a fetus as such. What it protects instead is the woman's interest in not being physically, internally occupied by another creature against her will, the same interest that explains the right to use deadly force, if necessary, to stop a rapist. Though the fetus is innocent of any intentional wrongdoing and the rapist is not, the woman's interest in repelling an unwanted physical intrusion is quite similar.

Once the fetus is no longer inside the woman's body, though, killing it is not necessary to preserving the woman's bodily integrity. If Gonzalez had, instead of suffocating the infant in a garbage bag, placed it into an incubator with a respirator, for example, Williams would not have been any more pregnant than she was in the circumstances that actually unfolded. And once Williams was no longer pregnant, and thus no longer occupied by an unwelcome intruder, she had no more right to procure the death of her fetus than did anyone else, including Belkis Gonzalez.

Why Gonzalez Might Have Acted As She (Allegedly) Did

One question that arises is what made Gonzalez, an owner of the abortion clinic where these events allegedly took place, act as she did. Why did she feel that the appropriate reaction to seeing a writhing and breathing infant was to place that infant into a garbage bag where it would certainly suffocate? We cannot know the answer to this question with any certainty, but there are some possibilities that present themselves.

First, Gonzalez might have believed that the patient wanted her fetus to be dead and that therefore, trying to preserve its life would have angered her customer. Williams had, after all, come to the clinic for an abortion, not for an early delivery, and abortion – when performed correctly – results in the death of the fetus. While the right to abortion may not itself be a direct right to procure the fetus's death, but only a right to terminate a pregnancy, the woman who seeks an abortion – the customer of the clinic – likely thinks of the two events in concert and wishes for both (rather than just one or the other of the two) to occur. To the extent that Gonzalez was attempting to approximate the outcome that the clinic's patient had sought, she might have believed that she was fulfilling the patient's wishes.

Second, another fact that might explain Gonzalez's actions is that in the process of performing the abortion sought by Williams, the killing of the fetus would have been active, rather than passive. That is, the doctor – had he arrived in time to perform the procedure – would have dismembered the fetus, and thereby killed it, prior to removing it from Williams's body. Gonzalez might therefore have believed that an abortion truly consists of two distinct, equally essential acts – the act of killing the fetus and the act of removing the fetus and the pregnancy from the woman's body.

If Gonzalez was mistaken, as the best account of the law would suggest she was, then why does the abortion right include in-utero, active killing of the fetus? That is, if the only true interest of the woman is in ending her state of being unwillingly occupied (with all the pain, discomfort, and risk that pregnancy entails), then why don't all protected abortions consist exclusively of labor inductions? Why not simply remove the fetus from the woman's body by inducing labor, in other words, rather than by dismembering or otherwise destroying the fetus before it is removed?

One answer to this question is that as long as the fetus is inside the woman's body, the woman has an interest in accomplishing expulsion in a manner that does not itself threaten her with physical injury. As Williams described it, her labor and delivery of the fetus were extremely painful. To avoid the intense pain and health consequences of abortion-by-induction, she -- like any other woman in her circumstances -- was entitled to have her provider utilize a method that was safer for her, even though it would involve directly killing the fetus. Once the fetus had entirely exits her body alive, however, the woman necessarily loses this interest. Killing the fetus no longer promotes or protects the woman's bodily integrity in any way when the fetus has completely left her body.

A nagging question remains, however, which Gonzalez could reasonably ask: If the fetus at the particular stage is not viable – that is, if it cannot remain alive outside the womb, regardless of the interventions offered – then what difference does it make whether a provider throws it into a bag while it is alive, on the one hand, or futilely attempts to save its life, on the other?

Responding to this question highlights an additional feature of what makes this case unusual: the point in pregnancy at which the botched abortion occurred.

Late-Term Versus Early Abortion

In Roe v. Wade and subsequent Supreme Court precedents, the Court has consistently drawn the line between constitutionally-protected abortions, and constitutionally- permissible abortion bans, at fetal viability. Viability is the stage at which a fetus can – perhaps with technological assistance – survive (for an extended period of time) outside its mother's womb. Though the viability line has attracted criticism and controversy, it does help us figure out what to think when an abortion goes awry, as it did in Williams's case.

If Williams's pregnancy was 23.5 weeks along, as her abortion provider had estimated, then there is good reason to think that the fetus's life could have been saved after she delivered it alive. That is, her fetus might have been viable. In such a case, Gonzalez's alleged actions in placing the fetus into a sealed garbage bag unambiguously resulted in a death that might otherwise have been avoided. Her actions, in that event, made a huge difference.

Even if we assume, however, that the fetus would have died within minutes, regardless of what interventions were offered, it does not thereby follow that Gonzalez's actions were beyond reproach. If the fetus exited the womb alive but was destined to die very soon, we might consider the fetus as someone who is in the process of dying. If Gonzalez were to approach a dying patient – even one who would likely pass away in minutes – and smother that patient with a plastic bag, as she allegedly did to the fetus in question, she would be guilty of homicide. There is not, in other words, a "She would have died shortly anyway" defense to murder. When a nonviable fetus completely emerges from the womb alive, writhing, and gasping for breath, the right thing to do is – at the very least – to comfort the creature until it expires or to contact someone else who will.

Years ago I had a friend, whom I will call Ella, who became pregnant and wanted more than anything in the world to have her child. Late in Ella's pregnancy, however, she began to bleed, and the bleeding increased to a point at which it became life-threatening to Ella. She was taken to a hospital and then told, after an examination, that her cervix had dilated prematurely and that there was nothing anyone could do to save the pregnancy. It was too early, and the fetus was not viable.

Ella's doctor advised her to have a D & E, a dilation-and-evacuation procedure, in which labor would be induced and her fetus would be dismembered and removed from her body. Ella refused and said that she wanted to give birth to her child alive, even though it would die moments after birth. In this way, she could hold it and say goodbye. Ella was pro-choice and remained so throughout her wrenching ordeal, but she did not want an abortion.

Her obstetrician did not approve of Ella's decision, and he told her that he could not understand why she would want to go through the excruciating pain and risks of labor and delivery for nothing. She replied that it was not for nothing, that she wanted to hold her baby and kiss her goodbye. And that is exactly what Ella and her husband went on to do, against medical advice. Ella told me later that her daughter looked very much like her. She died in her mother's and father's embrace, and Ella mourned her loss.

I tell this story to illustrate the difference between the approach that Gonzalez took to Williams's fetus, and the approach that one could take in the same situation. If Ella had wanted to follow her doctor's advice, she should have been free to do so. But given that she wanted to hold her living child, if only for a few moments, she made a different choice. And after having done so, she gave the love and comfort to her child that Sycloria Williams's child – once delivered – also deserved, regardless of the circumstances.

Why Late-term Abortions Are Different

Most women who terminate their pregnancies do so in the first trimester, when there is no question of viability and when the developing fetus does not yet evidence the capacity to experience pain or pleasure. Such abortions understandably do not generate the same revulsion and outrage as the later ones do. Late-term abortions are morally complicated, because the later-term fetus may experience pain and may therefore plausibly be described – without any need for a religious gloss – as truly being a victim of the procedure. This does not, as some claim, necessarily mean that a woman should not have the right to terminate a pregnancy. It does, however, counsel in favor of measures that will move desired abortions up to as early a point in pregnancy as possible.

This is where laws intended to reduce the incidence of abortion by placing obstacles in women's paths may exacerbate the situation. To cite one example, thirty-four states currently have "parental involvement" statutes that require pregnant minors to notify or obtain consent from a parent before obtaining an abortion. Laws like these are very popular and strike many people as intuitively attractive. The Guttmacher Institute recently published findings, however, showing that such measures "delay access to the procedure, reducing safety and resulting in later, more costly abortions." When an abortion is delayed, moreover, not only is the procedure more physically risky and challenging to the woman, but it also involves a more developed and possibly sentient fetus.

Why, then, is there no concerted effort on the part of people morally concerned about late-term abortions to increase the availability and simplicity of early terminations, including over-the-counter access to the morning-after pill, a type of birth-control that can prevent implantation after fertilization has already occurred? The answer is that although most Americans find the story of Sycloria Williams distinctly horrifying and find late-term abortion morally dissimilar from early abortion, the most prevalent religious pro-life position is that a fertilized egg is indistinguishable from both a late-term fetus and a newborn baby. If that view were correct, then there would be no reason to prefer an abortion in the first weeks of pregnancy to a dilation-and-evacuation at 23 weeks' (or, indeed, at 40 weeks') gestation – both/all would be equally undesirable and should ideally be treated the same way.

In contemplating Sycloria Williams's case and the revulsion that most of us feel in hearing about it, it is worth remembering the pro-life belief in the equivalence between that case and the use of the morning-after pill a day after conception. This equivalence is significant, because even a relatively small group of single-issue voters can disproportionately influence policy, and the "fertilized egg = baby" view could contribute to the problem of morally-fraught late-term abortions and ultimately make scenarios like Sycloria Williams's more, rather than less, frequent than they already are.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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