Groups want say in fetus case

Desperate to present their side in a controversial fetal-rights case, four abortion-rights groups filed an emergency request in court Thursday to argue against appointing a guardian for the fetus of a retarded rape victim.

The national and statewide organizations filed the motion because the 5th District Court of Appeal in Daytona Beach is poised to hold oral arguments next week where the only two participants -- the woman appealing the case and the state -- both favor fetal guardianship.

Ironically, the pregnant woman, known as J.D.S., won't be represented at the hearing and likely will have given birth before the appellate court rules on the fetus issue. That contributes to the notion that this appeal is no longer about J.D.S. but about fetal rights in general.

The four groups -- the American Civil Liberties Union of Florida, the ACLU's Reproductive Freedom Project in New York, the Center for Reproductive Rights and the Florida chapter of the National Organization for Women -- made the emergency request after realizing there would be no opposing viewpoint in the oral arguments.

The court earlier this summer denied three of the same groups a chance to be a part of the case. It had not ruled on the latest request as of Thursday.

"Procedurally it makes no sense to me," said Bebe Anderson, staff attorney for the Center for Reproductive Rights. "What the courts normally have in an appeal is adversarial positions. It [the 5th DCA] is going to hear the same argument twice."

The emergency motion filed Thursday cites case law saying "a bona fide adversarial dispute" must occur for a case to proceed in Florida courts.

That's because the two parties are Jennifer Wixtrom, the woman who wants to be the fetal guardian, and the Department of Children & Families, which has publicly supported Wixtrom's request. The Florida Attorney General's office will argue for DCF.

The court has styled the appeal so that it reads "Wixtrom, the appellant, vs. DCF, the appellee." DCF has tried unsuccessfully to remove itself from the adversarial position because it supports Wixtrom's cause. The court has not explained why it left DCF in an opposing position.

Wixtrom appealed after Orange Circuit Judge Lawrence Kirkwood denied her request to be appointed the fetal guardian in late May. He said there was no basis in state law for the appointment, and he also relied on a 1989 Florida Supreme Court ruling that said appointing a guardian for a fetus was "clearly improper."

J.D.S., 22, was raped and became pregnant while living in an Orlando group home. She is so developmentally disabled that she cannot make decisions about her health and pregnancy. She required a guardian to help make those life choices.

Wixtrom and the state have filed nearly identical arguments with the court saying that, while J.D.S. is a unique case, the issue is broader because the situation could be repeated.

"While the appellant does not seek to transform this case into a national debate over fetal rights, the matter of appointment of guardians for [the] unborn child of an incompetent ward is of great public importance," Wixtrom's attorney Edward Jordan wrote in a July 18 brief.

"This is attested to by the involvement of the executive branch of the state of Florida, as well as the Department of Children and Families," Jordan continued. "This issue is likely to occur in the future."

In addition to denying abortion-rights groups and advocates for the disabled, the court also denied the Central Florida-based Liberty Counsel, which supported Wixtrom.

But many abortion-rights supporters wonder how the court can weigh the complex legal issues fairly when it will hear only one side.

Randall Marshall, legal director for the American Civil Liberties Union of Florida, said, "Why this has come about is quite surprising and doesn't make a lot of sense. You have got a one-sided appeal."

The motion filed by Marshall and the others says: "This appeal presents a matter of substantial public concern -- an unprecedented request for appointment of a guardian for a fetus where the pregnant woman is carrying to term and no exigent medical situation exists -- yet adversarial parties are not before the court."

Marshall said it is highly unlikely the appellate court would overrule Kirkwood.

"It's hard to imagine that the District Court of Appeal would reverse the trial court," Marshall said. "That would appear to be a substantial change in the law. It would be a major story."

But Marshall and other opponents doubt they will have the opportunity to appeal the decision unless they are allowed to join the case now.

Lynn Hearn, deputy solicitor general with the state Attorney General's Office, agrees the lack of opposition is unusual, but she doesn't see that as a distinct advantage for the state.

Because no attorneys will be opposing the state's arguments, Hearn said, it's difficult for her to know what to expect from the court.

"It's very awkward. We don't know how it's going to work," Hearn said. "There will be nobody there to oppose Mrs. Wixtrom's position."

Few familiar with the case believe the appeal now has anything to do with J.D.S. and her fetus. J.D.S. is expected to give birth later this month or early September.

Her fetus will soon be a child. And the abortion question was settled weeks ago when her legal guardian recommended that Kirkwood let the pregnancy to go to term.

"This baby is going to be born by the time we get any kind of decision," said Mike Dibble, who represents J.D.S.'s guardian. "It is moot as to our client."

"Both sides on the abortion issue want to create as much juris prudence [case law] as possible," Dibble said.

If Kirkwood's ruling is overturned, some observers say, the decision could affect other women seeking abortions in Florida. At the very least, such a ruling could affect developmentally disabled women, like J.D.S., who become pregnant but cannot make critical decisions for themselves or their pregnancies.

Hearn and other officials insist the state is asking for a guardian to be appointed for the fetus only in those situations comparable to J.D.S.'s -- not in normal pregnancies.

A guardian appointed for an incapacitated pregnant woman is looking out for the interests of the mother, not necessarily the fetus, Hearn said.

"The guardian's responsibilities are statutory," Hearn said. "But not one of them take into account the interests of the unborn child."

Bush spokeswoman Alia Faraj said the state's argument "is not about the reproductive [rights] debate. In the event we have another unfortunate incident like this [the J.D.S. case], we need to make sure we can protect the unborn child by appointing a guardian for the unborn child."

"This whole situation raises much bigger issues," said Laura Whiteside, who attempted to argue in the appeal as an advocate for the Florida Advocacy Center for Persons with Disabilities Inc. "My concern is that they're creating an artificial conflict between the mother and the child. They appear to be using her to a political end."

Anthony Colarossi can be reached at acolarossi@orlandosentinel.com or 407-420-6218.

But many abortion-rights supporters wonder how the court can weigh the complex legal issues fairly when it will hear only one side.

The interesting thing about this article is how it minces around the key issue: What's the other side?

You would think, from this article, that this is all about making sure that there is a fair presentation of 'both' sides. But what is the other side? Babies shouldn't have guardians when mom is retarded? Are the abortionists going to argue that the baby should be aborted because mom is stupid?

"My concern is that they're creating an artificial conflict between the mother and the child. They appear to be using her to a political end."

Now that's an understatement!

Shows what happens when courts abandon the presumption that
the mother has an obligation to guard her child at almost all costs and that when she is incapable that someone else should be appointed to assume that duty.

5 posted on 08/15/2003 9:20:33 PM PDT by Coleus (God is Pro Life and Straight and gave an innate predisposition for self-preservation and protection)

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