A silent mother, a fetus, and a state's prerogative

Gov. Jeb Bush's call to name a guardian for a fetus could test the legal definition of when human life begins.

A controversial decision by Florida Gov. Jeb Bush has thrust a young Orlando woman known only as J.D.S. into the national debate over abortion. The 22-year-old is severely retarded, unable to speak or care for herself. She was raped while in state care and is now more than five months pregnant.

Earlier this month, Governor Bush announced the state would attempt to have a guardian appointed for the young woman's fetus, a move that was originally opposed by state lawyers because it violates a 1989 Florida Supreme Court ruling.

The Bush move ignited a political firestorm. Antiabortion activists have long advocated recognizing the fetus as a person in their fight to ban the medical procedure. Pro-abortion forces are just as adamant that current law be upheld, so that abortion rights are not eroded.

Both the US Supreme Court and the state Supreme Court have found that a fetus does not count as a person under the 14th amendment - and so needs no guardian.

But in the debate's center, beneath the legal wrangling, remains this 88-pound young woman - who doctors have diagnosed as having autism, cerebral palsy, and a seizure disorder. Advocates for the disabled believe the issue that should be discussed is how a vulnerable young woman was raped - and why it took the state more than five months to realize she was pregnant.

They are also indignant that she's been put in this very public position. "Making this a political issue is an injustice to this young woman and regardless of your feelings on abortion, this is a really private matter," says Jim McGuire, the executive director of the Ann Storck Center, a nonprofit Florida group that works with the disabled. "It's a tragedy that it occurred, and the state of Florida bears the responsibility for an inappropriate placement.... They should be apologizing and trying to do everything they can to accommodate her, and not making her into a notorious figure."

Florida officials are quick to counter they believe they are making every effort to do what's best for J.D.S., but confidentiality restricts them from explaining their motives fully. An investigation is underway to discover who raped her and why it took the staff at the group home so long to discover that she was pregnant.

The young woman, who has no family, is also without a guardian to make decisions on her behalf. State officials could not explain why she was not given a guardian when she reached 18, except to say there was no provision in state law requiring them to do so.

A spokesman for the Florida Department of Children and Families admits there's a "fair perception" the case was not handled properly in the beginning, noting the delay between conception and the discovery of the pregnancy. "But we're certainly trying to do everything right now," says spokesman Bob Brooks. "It isn't the state that's turned her into a pawn. We would be doing this exactly this way if there was no press or other interested but uninvolved outside parties."

Advocates on both sides of the abortion debate also complain that the tragedy has been made so public. But both also contend that it could turn into a test case - if it is challenged through to higher courts - that could be pivotal in the national debate over abortion rights.

The case's evolution is complex. Lawyers for the Department of Children and Families had planned to ask the court to appoint one guardian to J.D.S. and one to her child, if it is born. A day after that request was made public, Governor Bush reversed the decision, saying the state would seek a guardian for the fetus also in an emergency hearing.

That caused an uproar in the abortion-rights community. The National Organization for Women, the American Civil Liberties Union, and the Center for Reproductive Rights filed a brief at the hearing, calling the Bush reversal unconstitutional. They are concerned about J.D.S.'s health and ability to carry the fetus to term - and they believe Bush's action was designed to delay the appointment of a guardian for her so long that an abortion would no longer be tenable.

"There was total disregard for her constitutional rights and her health," says Carla Josephson, president of the Orlando-area chapter of the National Organization for Women. "This case was interfered with by the Bush administration precisely because she has no voice, politically she's powerless, and they want to use her as a tool to further their case for recognition of the fetus as a person."

Antiabortion forces applaud Bush for challenging the 1989 Supreme Court ruling, which they believed overreached into "judicial activism." Ken Connor, now president of the Family Research Council, was a lawyer for anti-abortion groups in Florida and argued on their behalf in the case. He supports the state's current actions.

"The howls of indignation of the pro-abortion lobby bespeak how zealous they are," says Mr. Connor. "Their underlying premise seems to be that it's in the best interest of the mother that her child be destroyed. I don't think that should be a given. It says the child should be executed for the crime of the parents."

Advocates for the disabled note there have been similar cases in Florida in which young women under state care have been raped. And they suggest the state should focus on its handling of its most vulnerable citizens.

"This isn't about abortion rights," says Lance Block, an attorney who works with the disabled. "It's about whether we force mentally incompetent women who function on the level of a toddler ... to have babies after they've been raped under the supervision of Florida."

A guardianship hearing is set for June 2.

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