Plan to Protect Baby Conceived in Rape Draws Scorn
BY Carlos Briceno
June 1-7, 2003 Issue | Posted 6/1/03 at 1:00 PM
TALLAHASSEE, Fla. — Life has never been easy for J.D.S., a 22-year-old Orlando, Fla., woman. Her health has always been troublesome: She is mentally disabled and suffers from autism, cerebral palsy and seizures. And she has faced many obstacles relatively alone.
When she was about 3, her family left her in a Florida nursing home and disappeared. After she turned 18, no one appointed a legal guardian to oversee her medical and legal needs. And a little more than five months ago, a man, whom she can't identify because she can't speak, raped her while she was in the care of a state-supervised facility.
Now that she is more than five months pregnant and weighs about 88 pounds, the woman, known in court documents only by her initials, is not alone anymore. And one of her friends is none other than Florida Gov. Jeb Bush, who wants separate guardians appointed for the woman and her unborn child. His request overruled an earlier decision by child-welfare officials that would have sought a guardian for J.D.S. and her baby after it was born — and not until then.
“The governor's focus in this case is to ensure that the best interests of both the mother and her unborn child are served, and appointing a guardian is the appropriate way to do that,” said Jacob DiPietre, Bush's deputy press secretary. “This specific case involves a mother who is totally incapable of making life choices for herself or for her child. In light of this, the state should do its part to protect both the mother and the unborn child.”
An Orange County Circuit Court judge in Orlando has criticized the state's Department of Children and Families' failure to file a petition of incompetency when J.D.S. turned 18 so that a guardian could look after her interests. Judge Lawrence Kirkwood also has set a June 2 hearing that will determine whether she is incapacitated.
If J.D.S., who has been moved from where she was raped to another state-licensed home, is found to be unable to make decisions for herself, another hearing will be scheduled that would address the issue of guardianship for both the unborn baby and herself. Even though she can't speak, she is considered legally competent, mainly because the state hasn't officially declared her to be incompetent.
Bush's request for the unborn child has focused attention on a 1989 landmark Florida Supreme Court case in which a 15-year-old girl sought an abortion without parental consent. In its 4-3 ruling, the court stated that the girl could have an abortion because granting a guardian to a fetus was “clearly improper.”
Several organizations — the American Civil Liberties Union, the National Organization for Women and the Center for Reproductive Rights — have asked Judge Kirkwood to appoint a guardian for J.D.S. but not for the baby.
In a document filed with the court, the organizations argued, “Florida law clearly holds that a statute's reference to a ‘person’ does not encompass a fetus.”
In an interview, Linda Miklowitz, president of the Florida National Organization for Women, expressed concern that J.D.S. is “very likely not to be able to carry a healthy child to term.”
She added: “Those people who would sacrifice her life for the sake of a religious principle and also cause a child to be born who could very well be severely disabled also are following a belief in religion that not all Americans can tolerate.”
Bush, who is a Catholic convert, says he is opposed to abortion.
“My faith is an essential part of my life and my worldview,” the governor, President George W. Bush's brother, said in a statement e-mailed to the Register. “But clearly, one need not be a Catholic to recognize that in this case the state has an interest in protecting the lives of both the mother and her unborn child.”
Pro-life organizations have expressed support for Bush's pro-life stance in this particular case and anger at those who oppose him.
Mary Jane Owen, executive director of the National Catholic Partnership on Disability, an independent advocacy group, pointed out that when the Florida Supreme Court ruled in 1989 against a guardian for a fetus, technology wasn't as sophisticated as it is today.
“We didn't have … three-dimensional sonograms back in 1989,” said Owen, who uses a wheelchair because of spinal cord damage, has partial hearing loss and only recently regained sight after 30 years of blindness. “We didn't have them in 1999. We've got them now. We can now see little babies putting their thumbs in their mouths, moving their fingers around, yawning, moving every part of their bodies. We can see their little noses, their little eyes. We know they're human beings.”
Owen also expressed concern about the prevalence of sexual abuse of disabled people. She, too, was sexually abused in a rehabilitation facility.
“I know very few disabled people who have not been sexually abused,” Owen said.
The violence associated with those who are sexually assaulted is tragic, and the tragedy would be compounded by a second violent act, an abortion, said Julie Makimaa. She is a pro-life activist whose mother was raped at age 18 and gave Makimaa up for adoption when she was a baby.
“Certainly her child is an innocent victim in what has happened and shouldn't be punished or rejected because of the crime of its father,” she said, adding that there is often a stigma attached to children born of rape victims. The child has been “purposely associated with the rapist without question” and is often referred to as “the ‘rapist's child,’ the child that will be born with deformities or psychological problems,” she said.
Such associations and “myths” were used to support abortion as a “means of compassion” for victims of assault, Makimaa said. “So the children conceived as a result of rape and incest have always been used to promote abortion.”
“They are so afraid of the truth that they have actually lost sight of the truth,” said Lynda Bell, spokes-woman for Florida Right to Life, referring to abortion activists. “This baby is a person. This baby is a child; it's an unborn child, but it's a child nonetheless.”
Carlos Briceno writes from Seminole, Florida.
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