Shelter for the Very Young

Ho-hum. It is becoming the sort of story that no longer rates much notice as news. The New York Times accorded it seven paragraphs at the bottom of an inside page, beneath this headline:

Girl, 15, Accused of Letting Her Daughter Drown at Birth

This is another case of a newborn baby consigned to the garbage, like the one whose brief life began and ended in a Delaware motel room last November, when the baby's parents, both college students, were away from their campuses. The Times story concerns another baby that was born and died in a bathroom, like the one in New Jersey whose birth and brief life recently interrupted, but only for a matter of minutes, the mother's prom.

This most recent (that we know of) instance of infanticide occurred in Queens. The Times reports that "Ms. Martinez told investigators she gave birth while sitting on the toilet. Ms. Martinez told them that she let the baby fall into the water, where her daughter cried for several seconds while her arms and legs flailed."

Judith Martinez has been arraigned on murder charges, as has the New Jersey prom mother and both parents in the Delaware case. These should make for interesting trials, given that: If, as soon as the baby's skull appeared, Martinez had opened a hole in the skull and extracted the brains, the most she could be charged with is practicing medicine (specifically, a partial-birth abortion) without a license.

New York, New Jersey and Delaware must distinguish the salient differences between the kind of infanticide their state laws proscribe and the kind President Clinton protects with his vetoes of the ban on partial-birth abortions. Meanwhile, California's Supreme Court has given the nation fresh food for thought about legal and moral issues pertaining to very young life.

That court has held that Mikayla Snyder, who is 3 years old, can sue her mother Naomi's former employer for injuries (including permanent damage to Mikayla's brain and nervous system) that she, Mikayla, received four years ago. That is, she can sue for damages for injuries received in utero when her mother, as a result of the employer's negligence, breathed carbon monoxide in amounts toxic to both mother and daughter.

Or toxic to mother and fetus. Or toxic to (in language preferred by some pro-abortion advocates) mother and "fetal material."

By its ruling, the court unanimously abandoned a prior doctrine that only the mother could seek compensation for workplace injuries because a fetus is "inseparable" from its mother. The court's new ruling turns on a physiological fact:

"Biologically, fetal and maternal injury have no necessary relationship. The processes of fetal growth and development are radically different from the normal physiological processes of a mature human. Whether a toxin or other agent will cause congenital defects in the developing embryo or fetus depends heavily not on whether the mother is herself injured, but on the exact stage of the embryo or fetus's development at the time of exposure, as well as on the degree to which maternal exposure results in embryonic or fetal exposure."

However, physiological facts can contribute to philosophical conclusions. Since 1872 California law has held that "a child conceived, but not yet born, is deemed an existing person, so far as necessary for the child's interests in the event of subsequent birth." Now California's court has said this: Although it is "tautologically true" that a fetus is "inseparable" from its mother, the fetus is legally distinguishable. It seems to have, in the logic of the law, attributes of a person.

Verily, it has the attributes of an American person, because it can have a lawyer, retroactively. The appellate attorney for Naomi and Mikayla Snyder, Paige Leslie Wickland, told the Los Angeles Times that the court's change of law might be explained by the fact that now three of the court's seven justices are women: "This may be an example of women having a different perspective on issues that concern children and the family."

If it is true that women are especially disposed to think about the fetus as a distinguishable and injurable person, that is full of potential for a rethinking of abortion policy. However, serious conclusions about the moral significance of physiological facts cannot be mere sentiments contingent upon gender. Rather, such conclusions must be grounded in philosophy informed by science. Today science and philosophy are tugging law away from the comforting premise of the abortion culture, that a fetus is nothing.

© Copyright 1997 The Washington Post Company