The State Supreme Court of Hawaii has taken a refreshing approach to fetal-injury issues by squarely confronting the question of fetal personhood as a pre-requisite to any finding of legal liability for harm to a fetus. Specifically, in a case involving a woman who admitted using methamphetamine shortly before giving birth to a baby who died two days later from the effects of meth, the Court held unanimously (though with three separate opinions) that the fetus prior to birth is not a legal person, and thus the woman cannot be convicted of manslaughter - there being no “man” in question at the time of her actions leading to the death of the baby.

The main opinion in the case makes for good reading. It offers an interesting survey of practices on this issue nationwide, noting that most jurisdictions do not allow prosecution of pregnant women for harms to the fetus accruing prenatally, but that most jurisdictions do allow such prosecutions against third parties (other parties who injure the woman while she is pregnant). It then goes on to note that the ABA Model Penal Code requires that “the defendant’s conduct must occur at a time when the victim is within the class contemplated by the legislature” - meaning that the victim must be the kind of entity covered by the law, at the time the alleged crime occurs, for the results of the action in question to count as a crime against that victim. And since a fetus is not a legal person, acts against a fetus are not crimes against a person (except where expressly stipulated to be so by legislation, as many states have done).

Having established that the offense of reckless manslaughter contains a conduct element and that the conduct must be directed against a “person,” the final sub-issue is whether the HPC’s definition of “person” includes a fetus. We hold that it does not.

According to HRS § 701-104 (1993), “[t]he provisions of [the HPC] cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of the words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” . . . Thus, in the present case, we interpret the relevant provisions of the HPC in accordance with the foregoing maxims of statutory construction.

According to the “fair import of the words, taken in their usual sense,” HRS § 701-104, a fetus is clearly not one “who has been born and is alive.” HRS § 707-700. The plain language of the statute is clear and unambiguous, and therefore we need not go any further

A concurring opinion by Justice Acoba puts it precisely (and even invokes “strict construction” to explain why expansive reading of “person” cannot be permitted):

[A]t the time of [the] offending acts there is simply no person (i.e. one who has been born and is alive) in existence as to whom the conduct can be said to have been directed. . . .

[A] strict construction of the statute would preclude the interpretation that HRS § 707-702(1)(a) applies when a woman’s prenatal conduct causes injury to a fetus later born alive. [emphasis original]

Much of this case hinges on the fact that Hawaii law expressly defines a “person” as “a human being who has been born and is alive.” Thus, the dispute was a somewhat technical one over whether certain acts - that would be crimes if perpetrated on “persons” - constitute crimes when perpetrated on beings who are not persons under the legal definition but who later become persons and then suffer from those acts. This decision thus provides little protection against the growing wave of inflation of fetal legal standing and protection. The coordinated move to write fetal protection into every possible aspect of the law is sweeping away the long-standing common-sense definition of fetuses as non-persons, and this decision will not roll back that tide.

However, it is worthwhile to see the Court taking seriously this distinction anyway, and to see that there is still room within the law for a more reasonable view of the relative moral standing of persons and fetuses, especially of women and the fetuses who inhabit their bodies. I suspect this case will spark a backlash (already visible in the right-wing blogosphere) in the direction of granting personhood to fetuses in Hawaii and the other fiew states in which this is not yet done. But for now, Hawaiian law seems to recognize an obvious biological fact, which puts prenatal there on a much-welcome footing.

The Toronto Star reports that Candian pharmacies are requiring women to fill out questionnaires about their sexual activity, sexual history, and pesonal identifying information - to be stored permanently in the pharmacy computers - before dispensing emergency contraception. They charge an extra fee for this non-optional service, doubling the cost of the prescription. They claim the information is to be used to monitor women’s patterns of use of EC “for counseling purposes.”

Canadian pharmacists are being advised to collect a woman’s name, address, phone number and sensitive details about her sexual activity before dispensing the so-called morning-after pill.

The guidelines, put out by the Canadian Pharmacists Association, have drawn concern from women’s health groups, which say the rules are discriminatory and raise privacy issues. . . .

Janet Cooper, senior director of professional affairs for the pharmacists’ association, said the information is necessary to determine whether the pill will be used appropriately and effectively, since it doesn’t work if taken more than three days after intercourse.

She said the information is to be kept in the pharmacy’s computer “so that if she came in a month later for another one, that would mean she probably needs to be advised to get better contraception.”

The medication is OTC in Canada, so pharmacists are the most direct source of information about its use. But the need to ensure informed decision-making has nothing to do with requiring unrequested “advice to get better contraception”. And the informational program is highly intrusive, while storage of the information for lookup on the pharmacy computer is simply creepy. (There is no explanation of how this information will be protected or who will have access to it.)

Health Canada moved the emergency contraceptive levonorgestrel, or Plan B, from being a prescription to a behind-the-counter drug in April, making it available to women of any age. A woman is required to ask the pharmacist for it so she can be counselled about its use.

The pharmacists’ association immediately posted guidelines on its website. They include giving women a screening form to fill out that asks for personal identification, the time when they last had unprotected sex, the number of times they have had unprotected sex since their last menstrual period, and what form of birth control they use. The information should be stored in the pharmacy’s computer, the guidelines state.

“These are highly personal, interrogative questions, and it’s disturbing,” [Anne Rochord] Ford [a drug-safety activist]said. Women taking this pill are already under stress, and “the last thing they need is this kind of interrogation,” she said.

“We are a bit stumped why they have gone to this degree,” she said. “This is just so over the top, unnecessary and unproductive.”

Most pharmacies don’t have a private place to counsel women, so it must be done in public.

It should be up to the woman to ask for advice about taking it, Ford said.

Canada has not been as plagued with right-wing hysteria over sex as has America. It would be sad to see the kind of hostility and intrusiveness that US women face in getting their sexual-health needs met start to take root up north. Let us hope this is just a bad idea, not the beginning of yet another war on women.