Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P44 pps

Technically a ferry is considered a continu- ation of a highway from one side of the body of water that it passes over to the other. The privilege of handling a ferry is called a franchise. A ferry franchise is a permit from the state to a specifically named individual giving that person the authority to operate a ferry. It is a general prerequisite to the lawful establish- ment of a public ferry. The operator of a ferry is not relieved of the du ty to obtain a franchise by formation of a company, since the franchise becomes a contract between the owner and the state. Usually the grant of a ferry franchise implicitly gives the recipient the power to collect tolls. Ferriage is the fare that the ferry operator may charge. The unauthorized estab- lishment of another ferry within competing distance of an already existing one constitutes an infringement of the ferry franchise, even in the absence of physical interference. A ferry franchise can be terminated either by expiration of its term or by revocation by the licensing authorities. It is generally subject to renewal, for which the original owner is usually given a preference. A public ferry is for use by the public at large, whereas a private ferry is operated solely for the benefit of its proprietor. The state has intrinsic authority to regulate and control ferries that operate within its borders. It may exercise such power by law or by contract with the operator. The state may regulate the transportation of dangerous arti- cles, the nature and frequency of service, and the location of terminals. In addition, it may impose a license fee or tax on the operation of ferries within its boundaries. FETAL RIGHTS The rights of any unborn human fetus, which is generally a developing human from roughly eight weeks after conception to birth. Like other categories such as CIVIL RIGHTS and HUMAN RIGHTS, fetal rights embraces a complex variety of topics and issues involving a number of areas of the law, including criminal, employ- ment, health care, and FAMILY LAW. Historically, under both English COMMON LAW and U.S. law, the fetus has not been recognized as a person with full rights. Instead, legal rights have centered on the mother, with the fetus treated as a part of her. Nevertheless, U.S. law has in certain instances granted the fetus limited rights, particularly as medical science has made it increasingly possible to directly view, monitor, diagnose, and treat the fetus as a patient. The term fetal rights came into wide usage following the landmark 1973 ABORTION case Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147. In that case, the Supreme Court ruled that a woman has a constitutionally guaranteed unqualified right to abortion in the first trimester of her pregnancy. She also has a right to terminate a pregnancy in the second trimester, although the state may limit that right when the procedure poses a health risk to the mother that is greater than the risk of carrying the fetus to term. In making its decision, the Court ruled that a fetus is not a person under the terms of the FOURTEENTH AMENDMENT to the U.S. Constitution. However, the Court also maintained that the state has an interest in protecting the life of a fetus after viability—that is, after the point at which the fetus is capable of living outside the womb. As a result, states were permitted to outlaw abortion in the third trimester of pregnancy except when the procedure was necessary to preserve the life of the mother. What has complicated the issue since the Roe decision has been the tremendous advance in medical technology that now makes the viability of a fetus possible even when it is only several weeks into gestation. It has called into question the appropriateness of judging the viability or the value of a fetus by trimester, making it an arbitrary benchmark in some A ferry is considered a continuation of a highway from one side of a body of water to another. This ferry transports people and vehicles across the Potomac River between Maryland and Virginia. PAUL A. SOUDERS/ CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FETAL RIGHTS 419 cases. Further, physicians are often under increased strain as they try to weigh factors regarding the health risks to both mother and fetus. Roe evoked impassioned responses from those who were morally or religiously opposed to abortion, and in the years following that case, abortion became one of the most contentious issues in U.S. law. Those opposed to the procedure became a powerful political lobby in the United States. Their efforts to promote the rights of unborn humans have had a significant effect on the law. However, the cause of fetal rights has been greeted with suspicion by those who are concerned that the state may protect fetal rights at the expense of women’s rights. For this reason, many feminists have been highly critical of claims regarding fetal rights. Such claims, they argue, can work to significantly diminish women’s rights to self-determination and bodily autonomy. At the same time, most legal experts recognize an increasing need to clarify the legal status of the fetus, particularly as technology has made it possible to regard the fetus as a patient independent of the mother. Some scholars have even gone so far as to ask that a model fetal rights act be passed so that states—which now exhibit a wide variety of approa ches to fetal rights—may develop a more coherent legislative approach to the issue of fetal rights, one that will give courts more direction in deciding relevant cases. The specific issues in which legal claims have been made regarding the rights of the fetus usually require a careful consideration of the sometimes competing rights of the woman and the fetus. Partial Birth Abortions The May 2009 MURDER of Dr. George Tiller, a Kansas physician who was one of the very few in the country who still performed third-trimester abortions, underscored the reality that the weighing of abortion rights vs. fetal rights still remains a volatile issue in the country, especially in the hands of extremists on both ends. In 2003 Congress had passed, and President Bush signed into law, the Partial-Birth Abortion Ban Act, P.L. 108-105, 18 U.S.C.1531. The term partial birth abortion describes a procedure defined in the Act as any abortion in which the death of the fetus occurs when “the entire fetal head or any part of the fetal trunk past the navel is outside of the body of the mother.” Immediately, Dr. Leroy Carhart and physicians who performed late-term abortions (Tiller) challenged the new act to stop it from becoming effective. Former U.S. Attorney General JOHN ASH- CROFT attempted to subpoena abortion records in defense of these challenges to the Act. Three courts found the federal law unconstitutional because it failed to provide any exception for such late-term abortions if a woman’s health was at stake. See, e.g., NAF v. Aschcroft, No. 03-CV-8695 (U.S.D.C. NY, 2004). Meanwhile, states began to take a tough stance on banning the procedure. In 2004, Kansas Attorney General Phill Kline was granted a court order to subpoena medical records f rom two Kansas abortion clinics that performed late-term abortions (later than the 22nd week of gestation) and/or abortions on girls younger than 15. The request involved the records of some 90 wome n and young girls. (Kansas law prohibited abortions performed after 22 weeks, excepting a non-viable fetus or a significant health risk to the mother. Moreover, the state’s STATUTORY RAPE law prohibits sexual intercourse, consensual or not, with anyone younger than 15.) The attorney general publicly stated that he was seeking evidence of child RAPE and illegal abortions performed after 22 weeks of pregnancy, and a GRAND JURY investi gation resulted in a subsequent finding of PROBABLE A doctor performs an ultrasound examination on a pregnant woman. The legal status of a fetus remains unclear. Although an unborn child does have some rights under the law, those rights sometimes conflict with the rights of the mother. AMY ETRA/PHOTOEDIT GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 420 FETAL RIGHTS CAUSE that some abortion providers had violated state law. According to state records, 78 girls younger than 15 received abortions in Kansas in 2003. The two abortion clinics refused to comply. The Women’s Health Care Services of Wichita, run by Tiller, was one of only three clinics in the nation that performed partial birth abortions. (Tiller, who had been the subject of numerous public demonstrations outside his clinic over the years, had contributed $150,000 through PACs to oppose the election of Kline as attorney general.) In early 2005 the two clinics, supported by Planned Parenthood, filed briefs with the Kansas Supreme Court requesting injunctive relief from the lower court’s subpoena order, calling Kline’s request a “fishing expedition.” and citing both privacy rights and doctor- patient privilege as grounds for the request. But Kline was quick to respond. In the state’s brief filed with the court, he reminded the parties that a judicial finding of probable cause had been secured prior to the issuance of the order. He further explained that the subpoena involved medical records being turned over to the court, not the media, lawyers, or public at large. Upon receipt of the requested records, the court contemplated a procedure in which an independent medical expert would review the records to determine the viability of the fetus, and whether there was objective medical evidence to support the late-term abortion. The Kansas subpoena was the strongest yet among states taking action against illegal late- term abortions. Arizona required medical providers to surrender ultrasound scans to outside medical contrac tors for review. South Carolina permitted state authorities to photo- copy medical records. Indiana clinics, like those in Kansas, faced a similar inquiry from state Attorney General Steve Carter, who was simi- larly challe nged in court by Planned Parent- hood. In June 2005 Indiana Superior Court Judge Kenneth Johnson again denied Planned Parenthood’s petition for relief and ordered the abortion clinics to turn over their records to Carter’s Medical Fraud Control Unit. In March 2006 Governor Michael Round s of South Dakota signed into law The Women’s Health and Human Life Protection Act, the most sweeping yet of several state anti-abortion measures. House Bill 1215, overwhelmingly approved by the state legislature, banned all abortions excepting those involving jeopardy to the life of the mother. No except ions were made for the ci rcumstances of the pregnancy (e.g., incest or rape) or for general health considera- tions of the mother. Instead, the law focused on the sanctity of life, irrespective of how that life began, expressly recognizing “that each human being is totally unique immediately at fertiliza- tion.” The Act further noted that under the state’s constitution, “a pregnant mother and her unborn child, each poss ess a natural and inalienable right to life.”(Section 1, H.B. 1215). Violations of the Act were punishable as felonies. The Act was to take effect in July 2006. However, immediately after it was signed into law, abortion rights advocates mobilized. Under South Dakota law, if opponents petition and collect a minimum number of signatures from registered voters, the effective date of a will be delayed until after it is placed on the general election ballot for a statewide vote in Novem- ber. By approximately a 55–45 percent margin, South Dakota voters rejected the new law in November 2006 (most citing that it went too far). The debate split not only the general public but also the medical community, with public advertisements featuring doctors who offered differing interpretations of the law. Finally, in 2007, the Supreme Court spoke. In Gonzales v. Carhart, 550 U.S. 124, the Court upheld the Partial Birth Abortion Act of 2003 prohibiting the defined partial birth abortions, but Roe v. Wade was left untouched. The Court found that becaus e the Act applied only to these abortions, it was not unconstitutionally vague or overbroa d. Moreover, ev en though the act left no health exception for the mother, it was valid because Congress had investigated and concluded, based on medical testimony, that the proscribed intact procedure was never medically necessary. (But the Court left open the possibility of a challenge if the Act were ever applied in a situation where the proscribed procedure was purportedly necessary to pre- serve a woman’s health.) As of April 2009, 31 states had enacted bans on partial birth abortion since Carhart. Forced Cesarean Sections Because of improvements in fetal monitoring and surgical techniques, physicians increasingly GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FETAL RIGHTS 421 recommend that women give birth by cesarean section, a surgical technique that involves removing the fetus through an incision in the woman’s abdomen. In many cases, cesarean section improves the chance that the fetu s will be delivered safely. By 1990 cesarean sections accounted for almost 23 percent of U.S. childbirths. Some women choose not to undergo a physician-recommended cesarean section. They may do so for a variety of reasons, including a concern about their own risk of harm, including death, from the surgery; a desire to avoid repeated cesarean sections; or sincere religious, cultural, or moral beliefs. This situation has led to a number of legal questions, such as whether a woman should be forced to undergo a cesarean section or other surgery in the interest of the health of the fetus, and the extent to which a woman is obligated to follow the advice of her physician regard ing the medical care of her fetus. The 1980s saw an increasing number of cases in which hospitals and phy sicians sought court orders to force women to give birth by cesarean section. From 1981 to 1986, 15 such cases were reported, and in 13 of them, courts decided to require cesarean section. In a 1981 case, Jefferson v. Griffin Spalding County Hospital Authority, 247 Ga. 86, 274 S.E.2d 457, the Georgia Supreme Court held that an expectant mother in her last weeks of pregnancy did not have the right to refuse surgery or other medical treatment if the life of the unborn child was at stake. As has happened in a number of other instances, the pregnant woman named in the case avoided the proc edure and later delivered a healthy child by natural birth. Later court decisions, however, increasingly recognized a pregnant woman’s right to refuse medical treatment. In a 1990 case, In re A. C., 573 A.2d 1235, the District of Columbia Court of Appeals ruled that a physician must honor the wishes of a competent woman regarding a cesarean section. The court’s opinion was written after the woman involved in the case, Angela Carder, and her fetus died following a cesarean section forced by a lower court. A 1994 Illinois case, Doe v. Doe, 260 Ill. App. 3d 392, 198 Ill. Dec. 267, 632 N.E.2d 326, involved a woman (called Doe to protect her anonymity) who was 35 weeks pregnant. Her doctor conducted tests that indicated her fetus was not receiving adequate oxygen. He there- fore recommended that the fetus be delivered by cesarean section. Doe objected to the surgical procedure on the basis of her religious beliefs. The doctor and his hospital then contacted the Cook County state’s attorney, who petitioned for a court order requiring the woman to undergo the cesarean procedure. The case eventually reached the Illinois Appellate Court, which upheld Doe’s right to refuse the cesarean section. The court held that a physician must recognize a woman’s right to refuse a cesarean section. It found no statute or Illinois case to support the state’s request to force a cesarean on a competent person. It also dismissed the state’s argument that Roe’s protections of a viable fetus authorized a forced cesarean. The court also noted the position of the AMERICAN MEDICAL ASSOCIATION (AMA) on the issue. The AMA has reminded physicians that their duty is to ensure that a pregnant woman is provided with the necessary and appropriate information to enable her to make an informed decision about her fetus and that that duty does not extend to attempting to influence her decision or attempting to force a recommended procedure upon her. The court assessed the action of the physicians in the Doe case to be in direc t opposition to the AMA’s clear edict. Shortly after the court’s decision, Doe gave birth to a healthy baby boy. The Supreme Court later declined to review the case. New types of fetal surgery now made possible by medical science promise to raise questions very similar to those found with forced cesarean sections. Drug Use by the Mother The use of illegal drugs such as cocaine and heroin can have a devastating effect on the health of a fetus. By the early 1990s it was estimated that 375,000 children were born annually in the United States suffering from the effects of illegal drugs taken by the ir mother. As a result, some states have held women criminally liable for any use of illegal drugs that harms their fetus. Prosecutors in many states have sought to deter such behavior by charging women with a number of crimes against their fetus, including delivery of drugs, criminal CHILD ABUSE , assault with a deadly weapon, and MANSLAUGHTER. Johnson v. State, 578 So. 2d 419 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 422 FETAL RIGHTS (Fla. 1991), demonstrates the controversial aspects of such prosecutions. In this case, a Florida district COURT OF APPEAL upheld a lower court’s conviction of a woman for the delivery of a controlled substance by umbilical cord to two of her four children. The decision was the first appellate ruling to uphold such a conviction. Jennifer Johnson, a 23-year-old resident of Seminole County, Florida, had been arrested in 1989 after two successive instances in which a child born to her tested positive for cocaine immediately after birth. Cocaine is especially harmful to a fetus, often causing premature birth, significant deformities and ailments, and even death. After Johnson’s conviction in the Seminole County CIRCUIT COURT in 1989, the AMERICAN CIVIL LIBERTIES UNION (ACLU) appealed the case with backing from an unusual alliance of medical and civil rights organizations, including the AMA, the American Public Health Association, the Florida Medical Association, and the National Abortion Rights Action League, all of which had different reasons for supporting the appeal. The AMA stated that it oppos ed the use of criminal prosecutions against mothers. Impos- ing criminal sanctions, it said, does not prevent damage to fetal health and may violate the privacy laws between doctors and women, making doctors and hospitals agents of prose- cution. The ACLU echoed the AMA, arguing that prosecutions of drug-addicted women for harm to their children will greatly damage women’s health, their relationship to the healthcare community, and their ability to control their own body. It also maintained that the policies enacted against Johnson should be made by a state legislature and no t the courts, and it pointed out that many more minority women than white women are reported for child abuse after testing positive for drugs. Other critics argued that most child abuse statutes do not specifically mention drug use by pregnant women as an offense, thereby raising the question as to whether prosecutions on charges of drug use involve a denial of due process. Still others said that increased funding for substance abuse treatment programs was a much better approach to the drug problem. They saw prosecutions on drug abuse charges as doing little to treat the underlying addiction and argued that such prosecutions deter at-risk women from seeking prenatal care, increasing the likelihood of harm to the fetus. Despite these arguments, the Fifth district court of Appeals, in Florida, upheld Johnson’s conviction. It agreed with the prosecution’s argument that Johnson’s umbilical cord had delivered cocaine to her children after their birth but before the cord was cut, thereby violating a Florida statute against the delivery of a controlled substance to a minor (Fla. Stat. Ann. § 893.13(1)(c) [West 1991]). Laws covering fetal HOMICIDE were in effect in 29 states in early 2004, many expressly excluding the mother from culpability. Several high-profile cases were reported in which mothers were held liable for the deaths of their stillborn or fetal infants, especially in drug- related cases. In April 2004 Salt Lake County district attorneys agr eed to drop murde r charges against Melissa Ann Rowland for allegedly refusing a caesarian section that likely would have saved her unborn twin son’s l ife. Lingering Fetal Rights DRUG USE DURING PREGNANCY, 2002–2007 Substance Percentage of pregnant women Alcohol (moderate) 19.0% First trimester Second trimester Third trimester 7.8% 6.2% 8.0% 1.8% 1.0% 21.8% 14.4% 13.9% 4.6% 2.9% 1.4% Alcohol (five or more drinks in a couple of hours) Cigarettes Marijuana SOURCE: Office of Applied Studies, Substance Abuse and Mental Health Services Administration (SAMHSA), The NSDUH Report, “Substance Use Among Women Durin g Pre g nanc y and Followin g Childbirth,” Ma y 21, 2009. 0 5 10 15 20 25 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FETAL RIGHTS 423 questions about Rowland’s mental health prompted prosecutors to agree to a PLEA bargain in which she pleaded guilty to two counts of third-degree felony child endangerment instead. She was sentenced to drug and mental health treatment and 18 months probation. A few months earlier, a Hawaiian mother was charged with manslau ghter in the death of her newborn son resulting from methamphetamine poison- ing. Similarly, a California woman was sen- tenced to life in prison for the poisoning of her newborn through methamphetamine-tainted breast milk. In October 2003, the U.S. Supreme Court denied certiorari, without comment, of an appeal involving a woman convicted and sentenced to 12 to 20 years for the drug-related death of her stillborn child McKnight v. South Carolina, No. 02-1741). In that case, Regina McKnight tested positive for cocaine while in the hospital, after which she delivered a stillborn child with drugs in its system. McKnight was convicted of homicide under South Carolina law. Eviden ce showed that the near-full-term infant was viable and could have surviv ed but for the drug poisoning. States will continue to struggle with this issue as they seek to achieve the best balance between maternal and fetal rights. States will also have to consider whether or not to hold criminally liable women whose use of legal substances such as alcohol or tobacco harms the fetus. Fetal Protection Policies Fetal protection policies bar fertile women from specific jobs out of fear that those jobs may Willow Island, West Virginia, Women Paid the Price of Fetal Protection Policies T B he 1991 U.S. Supreme Court ruling that declared fetal protection policies to be a violation of civil rights laws came too late for five women from West Virginia who were forced by their employer to choose between undergoing a steriliza- tion procedure to avoid health risks associated with their higher paying jobs, remaining fertile but moving to lower paying jobs, or quitting their jobs altogether (International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 [1991]). The women worked at an American Cyanamid factory in Willow Island, a poor region where decent-paying jobs were scarce. They were all among the first women to work in these factories, which, before 1974, had employed only men. In 1978 the company introduced a policy that no fertilewomenwouldbeallowedtoworkinitslead pigments department. The company claimed that hazardous chemicals in that department might harm women’s reproductive system. Fertile women under age 50 would have to be sterilized or take jobs in other areas of the company, virtually all of which paid less. Men, whose repro ductive s ystem might also be damaged by lead, were not subject to restrictions. The seven women then employed in the lead pigments department found themselves facing an agonizing choice: whether to reduce or sac rifice their income or undergo a surgical procedure that would render them unable to bear children. Five of the women chose sterilization. The labor union to which the women belonged eventually took the women’s case to court, claiming that the company’s fetal protection policy repre- sented a violation of federal occupational safety standards because it required an individual to be sterilized in ord er to be eligible for work. The union lost the case in the federal appeals court (Oil, Chemical, & Atomic Workers Internati onal Union v. American Cyanamid Co., 741 F.2d 444 [D.C. Cir. 1984]).Howeverinthe1991SupremeCourtruling, this decision was reversed. CROSS REFERENCES Abortion; Civil Rights Acts; Women’s Rights. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 424 FETAL RIGHTS cause harm to any embryos or fetuses the women might be carrying. These policies came into widespread use by many companies during the 1970s and 1980s, before a 1991 U.S. Supreme Court decision, UAW v. Johnson Controls, 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, declared them a form of sexual discrimination that violates Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq. [1982]). Despite the Court’s decision in Johnson Controls, those critical of fetal protection policies feared that the policies would be continued in more subtle forms. Johnson Controls grew out of a fetal protection policy created in 1982 by Johnson Controls, an automobile battery manufacturer. The company’s policy excluded pregnant women and women capable of bearing children from battery manufacturing jobs. The company maintained that the jobs in its manufacturing plant exposed women to levels of lead that might harm any embryo or fetus they might be carrying. In 1984 a group of Johnson Controls employees, together with their LABOR UNION, the United Automobile, Aerospace, and Agri- cultural Implement Workers of America (UAW), filed a CLASS ACTION suit in federal court challenging the company’s policy. They charged that the policy constituted SEX DISCRIMINATION in violation of federal civil rights law. In the final ruling on the case, the U.S. Supreme Court held that fetal protection policies unfairly discrimi nate against women because they do not demand that men make a similar choice regarding the preservation of their reproductive health in a potentially hazardous workplace. Companies that have created fetal protec- tion policies argue that they are necessary to protect their employees. Critics of fetal protec- tion policies maintain that they effectively exclude all women aged 15 to 50 from well- paying jobs unless the women can prove they have been sterilized. They also contend that such policies raise privacy questions because they often require women to provide proof that they cannot have children in order to take specific jobs. Critics also point to instances in which women have undergone sterilization procedures because they faced the loss of high-paying jobs. Other critics argue that male reproductive organs may also be affected by hazardous substances in such a way that a fetus might be harmed. Nevertheless, no company is known to have created similar policies for men. FOURTH AMENDMENT SEARCH AND SEIZURE cases can also touch on fetal rights. In Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d. 205 (2001), the Supreme Court ruled on a case concerning nonconsensual drug testing of pregnant women. In Ferguson the state argued that the drug testing was performed as a measure to help protect unborn fetu ses and that these searches fell under the “special needs” exception to the Fourth Amendment. Cases recognizing the exception have employed a balancing test weighing the harm caused by the warrantless intrusion on the individual’s privacy interest against the “special needs” that supported the intrusion. The court held that the South Carolina state hospital’s drug testing of pregnant patients to obtain evidence for law enforcement purposes does in fact violate the Fourth Amendment. The majority rejected the state’s argument that testing fell within the “special needs” exception t o the Fourth Amend- ment. The court said the state’s interest in using the threat of criminal sanctions to deter pregnant women from using drugs does not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. The court further held that the drug tests, conducted by the Medical University of South Carolina, constituted an unreasonable search if the patient had not consented to the procedure. In 2004, after five years of contentious political and legal disagreement, the 108th Congress passed, and President Bush signed into law, the Unborn Victims of Violence Act that expanded the legal rights of unborn infants who may be harmed as a result of assault or violence committed against pregnant women. The new law effectively established two separate crimes committed against a pregnant woman: one against her and one against her unborn child. This was significant in that it represented the first time ever that federal law recognized an embryo or fetus as a distinct person. It neither affected nor altered any state law. Notwithstanding its final passage, the law is limited in scope. It applies only to instances where harm to a fetus occurs during the com- mission of a federal crime against the pregnant mother. Examples of federal crimes include drug-related shootings, attacks that occur on GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FETAL RIGHTS 425 federal lands or military bases, or terrorist attacks. Assailants may be convicted of both crimes even if they are unawar e that the adult female victim is pregnant. Moreover, the law protects both viable and unviable fetuses from conception. It expressly defines an unborn child as “a member of the species homo sapiens, at any stage of development, who is carried in the womb.” It further declares that the punishment for the separate offense to the unborn child is the same as that provided under federal law for the crime to the mother. FURTHER READINGS Bates, Kelly F. 1995. “Cesarean Section Epidemic: Defining the Problem, Approaching Solutions.” Boston University Public Interest Law Journal 4. Blank, Robert H. 1992. Mother and Fetus: Changing Notions of Maternal Responsibility. Westport, Conn.: Green- wood Press. Condoll, Blair D. 1994. “Extending Constitutional Protec- tion to the Viable Fetus: A Woman’s Right to Privacy.” Southern University Law Review 22 (fall). Faludi, Susan. 1991. Backlash: The Undeclared War on American Women. New York: Crown. Manian, Maya. 2009. “The Irrational Woman: Informed Consent and Abortion Decision-Making.” Duke Journal of Gender Law & Policy, 2009. Samuels, Suzanne Uttaro. 1995. Fetal Rights, Women’s Rights: Gender Equality in the Workplace. University of Wisconsin Press. Wellman, Carl 2002. “The Concept of Fetal Rights.” Law and Philosophy 21 (January). CROSS REFERENCES Child Abuse; Drugs and Narcotics; Fetal Tissue Research; Parent and Child; Physicians and Surgeons. FETAL TISSUE RESEARCH Fetal tissue research is scientific experimentation performed upon or using tissue taken from human fetuses. Although fetal tissue research has led to medical advances, including the development of the polio and rubella vaccines in the 1950s, it has also generated controversy because of its use of fetuses from elective abortions. Fetal tissue research has been subject to strict government regulation and periodic moratoriums on federal funding. The National Institutes of Health (NIH) Revitalization Act of 1993 (Pub. L. No. 103-43 [42 U.S.C.A. §§ 289g-1, -2]) regulates many aspects of fetal tissue research. History Fetal tissue research has been conducted in the United States since the middle of the twentieth century. Its practice became more common as the amount of biomedical research increased and as restrictions on the availability of ABORTION decreased. Research on fetal tissue led to significant advances in the scientific understand- ing of fetal development and in the diagnosis and treatment of fetal diseases and defects, including the development of amniocentesis as a diagnostic tool. It also played a role in advancing the scientific understanding of cancer, immunology, and transplantation. Because fetal tissue grows more rapidly, is more flexible than other human tissue, and is less likely to be rejected by the immune system, it has also been used to treat diseases through transplantation. Fetal tissue transplantation usually involves the injection of fetal cells into a diseased organ such as the brain or pancreas. Many scientists believe that fetal tissue trans- plantation will lead to significant new develop- ments in medical science. Researchers have already had limited success in using fetal tissue transplants to treat patients with Parkinson’s disease, diabetes, Alzheimer’s disease, and other illnesses. Although most medical ethicists agree that these new procedures hold great promise, they warn that the use of fetal tissue must be strictly regulated to avoid ethical abuses. Law Fetal tissue research became a subject of controversy in U.S. law following the 1973 U.S. Supreme Court decision in ROE V. WADE (410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147), which protects the right of a woman to have an abortion in the first and second trimesters of pregnancy. After Roe, research performed on fetuses obtained from elective abortions came under close scrutiny. In 1974 the National Research Act (Pub. L. No. 93-348) created a national commi ssion to oversee research that involves fetuses. This body released research guidelines and also placed restrictions on what types of fetal research might be allowed to receive federal funding. In 1988 NIH scientists requested approval from the DEPARTMENT OF HEALTH AND HUMAN SERVICES (HHS) to begin transplantation experi- ments using fetal brain tissue. Because the administration of President RONALD REAGAN was concerned about the link between fetal tissue research and abortion, the HHS imposed a temporary moratorium on federal funds for GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 426 FETAL TISSUE RESEARCH research in fetal tissue transplantation. Al- though a 21-member NIH panel later approved the use of human fetal tissue for transplantation and disagreed with the contention that such research would cause more abortions, the moratorium was extended indefinitely in 1989 by Secretary Louis W. Sullivan of the HHS. In subsequent years, legislation to overturn the moratorium repeatedly failed in Congress. Then, shortly after taking office in 1993 President BILL CLINTON ordered the end of the moratorium (58 Fed. Reg. 7457). Later in 1993 Congress passed the NIH Revitalization Act, which permits the tissue from any type of abortion to be used for fetal tissue research. The law includes elaborate consent and documenta- tion requirements that attempt to separate the mother’s decision to abort from the decision to donate fetal remains. It also criminalizes the sale or purchas e of fetal tissue and the designation of the recipient of fetal tissue. Soon after President GEORGE W. BUSH took office in January 2001, the controversy over fetal tissue research found itself again in the public spotlight. In a nationally televised speech during prime time, the presiden t presented new national policies involving embryonic stem cell research. An embryonic stem cell is a kind of master cell taken from a 5-day-old embryo that can develop into virtually any type of body tissue. Researchers believe those specialized cells could then be transplanted into patients to correct disorders such as diabetes, Alzheimer’s, heart disease and spinal cord paralysis. In his speech on embryonic stem cell re- search, Bush announced a policy of continued— though severely limited—federal funding for embryonic stem cell research. This approval is strictly limited to 60 existing genetic lines of embryonic stem cells. Additionally, he an- nounced the creation of a council to develop federal guidelines and monitor embryonic stem cell research. He expressed concern over the conduct of embryonic stem cell research that had been privately funded, often done in secret, and conducted without regulation. But the limits imposed by the president, particularly those ex- cluding new stem cell lines developed from embryos, would slow the pace of scientific dis- covery in this area. Bush’s 2001 policy remained in force until the election of BARACK OBAMA in 2009. Less than two months after taking office, Obama issued an EXECUTIVE ORDER lifting the ban on research beyond the 60 cell lines known to exist in 2001. Obama’s order directs the National Institute of Health to draft guidelines for federal funding for future embryonic stem cell research. The Debate Those opposed to fetal tissue research have made a number of argum ents against the use of fetuses from elective abortions. Morally opposed to abortion itself, they argue that the fetal tissue researcher is complicit in the destruction of the fetus and that fetal tissue research will create incentives for more abortions. Moreover, they maintain that a woman who has an abortion cannot legally authorize research on the aborte d fetus because she has abandoned her parental responsibility through the act of abortion. They also argue that fetal tissue research can and should be restricted to fetuses from spontaneous abortions and ectopic pregnancies. Those who favor fetal tissue research contend that it has already led to significant medical gains that have saved and improved many lives and will continue to do so. They argue that resear chers have an ethical duty to relieve suf fering and cure diseases and that fetal tissue research contributes greatly to this cause. President Barack Obama finalizes an executive order removing restrictions on stem cell research. CHIP SOMODEVILLA/ GETTY IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FETAL TISSUE RESEARCH 427 They also contend that researchers must continue to have access to ethically obtained fetuses. They hold that the tissue of fetuses from elective abortions has far fewer defects and is much easier to obtain than that of fetuses from nonelective abortions or ectopic pregnancies. FURTHER READINGS American Society for Cell Biology. 2001. “Position Paper on Bush Decision on Federal Funding of Stem Cell Research.” Available online at http://www.ascb.org/ index.php?option=com_content&view=article&id=317& Itemid=31 (accessed September 29, 2009). Beller, Fritz K., and Robert F. Weir, eds. 1994. The Beginning of Human Life. Boston: Kluwer. Goddard, James E. 1996. “The NIH Revitalization Act of 1993 Washed Away Many Legal Problems with Fetal Tissue Transplantation Research but a Stain Remains.” Southern Methodist University Law Review 49 (January– February). “Obama Overturns Bush Policy on Stem Cells.” CNN.com. March 9, 2009. Taylor, Betty W., et al. 1999. Feminist Jurisprudence, Women, and the Law: Critical Essays, Research Agenda, and Bibliography. Littleton, Colo.: Fred B. Rothman. CROSS REFERENCES Fetal Rights; Women’sRights. FEUDALISM A series of contractual relationships between the upper classes, designed to maintain control over land. Feudalism flourished between the tenth and thirteenth centuries in western Europe. At its core, it was an agreement between a lord and a vassal. A person became a vassal by pledging political allegiance and providing military, politi- cal, and financial service to a lord. A lord possessed complete sovereignty over land, or acted in the service of another sovereign, usually a king. If a lord acted in the service of a king, the lord was considered a vassal of the king. As part of the feudal agreement, the lord promised to protect the vassal and provided the vassal with a plot of land. This land could be passed on to the vassal’s heirs, giving the vassal tenure over the land. The vassal was also vested with the power to lease the land to others for profit, a practice known as subinfeudation. The entire agreement was called a fief, and a lord’s collection of fiefs was called a fiefdom. The feudal bond was thus a combination of two key elements: fealty, or an oath of allegiance and pledge of service to the lord, and homage, or an acknowledgment by the lord of the vassal’s tenure. The arrangement was not forced on the vassal; it was profitable for the vassal and made on mutual consent, and it fostered the allegiance necessary for royal control of distant lands. The bond between a lord and a vassal was made in a ceremony that served to solemnize the fief. The vassal knelt before the lord and placed his hands between those of the lord as a sign of subordination. Immediately afterward, the lord raised the vassal to his feet and kissed him on the mouth to symbolize their social equality. The vassal then recited a predeter- mined oath of fealty, and the lord conveyed a plot of land to the vassal. In the seventeenth century, more than three centuries after the death of this particular social practice, English scholars began to use the term feudalism to describe it. The word was derived by English scholars from foedum, the Latin form of fief. The meaning of feudalism has expanded since the seventeenth century, and it now commonly describes servitude and hierarchical oppression. However, feudalism is best under- stood as an initial stage in a social progression leading to private ownership of land and the creation of different estates, or interests in land. Before feudalism, the European population consisted only of wealthy nobility and poor peasants. Little incentive existed for personal loyalty to sovereign rulers. Land was owned outright by nobility, and those who held land for lords held it purely at the lords’ will. Nevertheless, the feudal framewo rk was preced- ed by similar systems, so its exact origin is disputed by scholars. Ancient Roman s, and Germanic tribes in the eighth century, gave land to warriors, but unlike land grants under feudalism, these were not hereditary. In the early ninth century, control of Europe was largely under the rule of one man, Emperor Charlemagne (771–814). After Charlemagne’s death, his descendants warred over land owner- ship, and Europe fell apart into thousands of seigniories, or kingdoms run by a sovereign lord. Men in the military service of lords began to press for support in the late ninth century, especially in France. Lords acquiesced, realizing the importance of a faithful military. Military men, or knights, began to receive land, along with peasants for farmwork. Even- tually, knights demanded that their estates be hereditary. Other persons in the professional service of royalty also began to demand and GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 428 FEUDALISM . So. 2d 41 9 GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 42 2 FETAL RIGHTS (Fla. 1991), demonstrates the controversial aspects of such prosecutions. In this case, a Florida district COURT OF APPEAL. GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FETAL RIGHTS 42 3 questions about Rowland’s mental health prompted. of a federal crime against the pregnant mother. Examples of federal crimes include drug-related shootings, attacks that occur on GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FETAL RIGHTS 42 5 federal