Fetal obligations: Federal judge: more rights for the unborn

Published in the Portland Phoenix and the Boston Phoenix

Following the tragic shooting in Kansas last month, pro-choice advocates have been dealt another disheartening setback: a federal judge in Bangor has recognized a new right of fetuses — to be protected from diseases carried by their mothers — that could become a key element in the nation’s ongoing abortion debate.

In May, Judge John Woodcock Jr., the chief federal judge in Maine, ordered an HIV-positive pregnant woman from Cameroon, who pleaded guilty to possessing false immigration documents, to remain in federal prison until after her expected delivery date in order to protect the child’s welfare. The judge said he worried that if Quinta Layin Tuleh was released or in the custody of immigration officials — who are seeking to deport her — she would not have access to medication that can prevent HIV transmission from a mother to her fetus.

“My obligation is to protect the public from further crimes of the defendant, and that public, it seems to me at this point, should likely include that child she’s carrying,” ruled Woodcock, a Bowdoin College and UMaine Law graduate who was appointed to the federal bench in 2003 by President George W. Bush. “I don’t think the transfer of HIV to an unborn child is a crime technically under the law, but it is as direct and as likely as an ongoing assault.”

Woodcock went on to say that he has an “obligation to do what I can to protect that person, when that person is born, from permanent and ongoing harm.” Having admitted that he would have released Tuleh on time served if not for her medical conditions, he remanded her to federal prison for 238 more days.

This sets out an argument that, legal experts say, if taken to its logical conclusion, could be used by a court to protect a fetus from its mother. (At the moment, fetal rights are generally limited to protection from strangers acting without the consent of the mother — as when someone who assaults or murders a pregnant woman can be charged with two offenses: one for the attack on the mother, and one for the attack on the fetus.) It also contradicts a key element of current abortion rights: namely, that a mother is allowed to do what she wishes with a fetus, including abort it.

Maine activist groups are reeling, with some worrying that it could mark a dangerous precedent for so-called negligent mothers. “When are you allowed to lock up a pregnant woman?” asks Zachary Heiden, the legal director of the Maine Civil Liberties Union. Can a pregnant woman convicted of a crime be sentenced to jail solely to ensure she takes prenatal vitamins, or stays away from junk food?

Women’s issues and reproductive-rights organizations, as well as those dealing with immigration questions, HIV status, and prisoner treatment, have also huddled to craft responses.

“It’s crazy that we live in a country where you have to be in prison to get health care,” says Ben Chin, the Maine People’s Alliance’s federal-issues organizer, who believes that if our immigration laws were reformed to allow people who are here to legalize their status, this issue would not even have come up. “She was here to work, she was contributing to the economy,” he says. Jailing her and sending her out of the country does neither her nor the country any good.

Peter Rice, legal director of the Augusta-based Disability Rights Center, notes that HIV-positive status is a disability under federal law, and says Tuleh “was imprisoned for her disability,” which is against the spirit of the Americans with Disabilities Act. (That law, however, does not specifically apply to federal judges handing down criminal sentences.)

Another curious wrinkle to this case: federal prosecutors objected to the sentence, and have appealed it to the 1st Circuit Court of Appeals in Boston, which is expected to hear arguments by August. “I’ve never heard of a prosecutor appealing” when the judge’s sentence is longer than the government requested, says Heiden. Both his organization and the Disability Rights Center are considering supporting the appeal.

Paula Silsby, the US Attorney for Maine, declined to comment, saying it was an ongoing case. Judge Woodcock did not return calls seeking comment.

Keeping faith: Piers Paul Read looks inside the Church

Published in the Portland Phoenix

His publicist calls Piers Paul Read "the anti-Dan Brown." She's capitalizing on a buzz-worthy name, sure, but it's a fairly insightful description of a man whose latest book, The Death of a Pope, explores not the Brownish theme of the Catholic Church secretly at work in world affairs, but rather its inverse — how worldly factions seek to transform the traditionalist Church through its cloistered traditions.
Read is best known to a generation of readers as the author of Alive: The Story of the Andes Survivors (J.B. Lippincott, 1974), about the high-mountain plane crash that killed several members of a Uruguayan rugby team; the survivors, strengthened by eating the flesh of their dead friends, made a nearly impossible trek to civilization and rescue.
"I had quite a sheltered upbringing," says the soft-spoken Englishman, who stopped through Maine last week for a reading in Augusta (but, oddly, not in Portland). As a young adult, he says he was "very revolutionary," promoting Marxism in Latin America, but came to doubt whether his socially disruptive efforts would really help people in need. That period in his life both was part of, and deepened, his quest to overcome insularity by inquiring deeply into the outcomes of efforts by those who claim to know the ultimate unknowable, God's will.
His understanding of that struggle lends a quiet weight to the smooth, quick readability of The Death of a Pope. Set in the days between John Paul II's death and the election of Benedict XVI, the book follows the forces swirling around the conclave of cardinals that selects a new pope, including conniving princes of the church, radical Catholic missionaries, and innocents who find themselves involved.
The end leaves much room for speculation about what comes next, but suggests an answer to the age-old question of whether salvation is earned by words, deeds, or faith alone.
The Death of a Pope | by Piers Paul Read | Ignatius Press | 225 pages | $21.95

Press Releases: Death knell

Published in the Portland Phoenix

Last week was a bittersweet week for the people who work at the Portland Press Herald and its sister publications. It is hard to fault them for the steps they took to try to preserve some semblance of the present, but we cannot avoid the fact that they have sounded the death knell both for the newspapers that employ them and the unions that represent them.

Which is not to say they had much choice. At a press conference announcing a contract agreement between the Portland Newspaper Guild and Richard Connor, the Bangor native who has been trying to buy the papers for the past year, guild president Tom Bell put a positive spin on things, calling the deal "a remarkable story." He is certainly right that without the agreement of his union and the several smaller ones involved with the company, the papers might well have closed altogether. But the price the unions are paying to avoid that fate is a cruel second-best.

Thanks to union concessions including a 10-percent wage cut to a new level that will be frozen for two years, a pension freeze, suspension of company 401(k) contributions, the papers are not closing. But they certainly will be changing significantly.

Even the unions themselves are speculating that more than 100 jobs will disappear (the unions hope they'll come through buyouts rather than outright layoffs, but that remains to be seen). What they are not saying, publicly at least, is that if that lowball number is real, union membership will shrink by 25 percent (the 500-employee company has just more than 400 union workers). And if more people's jobs go, the unions will be even smaller.

Collective power, already almost nil, will weaken further. Sure, those union members who keep their jobs get "sweat equity" in the form of 15 percent of any increase in the company's value. But there are no guarantees that the company will, in fact, gain value. And while the guild also gets three seats on the company's board of directors, that won't be a majority, and (depending on whether the board has seven or nine seats) may be an utterly powerless bloc.

In fact, in an ironic twist, the unions may end up in a position relative to Connor similar to where Knight-Ridder and now McClatchy have found themselves in dealing with the Blethen family: as minority owners who find out the results of important decisions only after they have been made.

It does remain, though, hard to blame the unions for trying. Many of those who voted for the new contract will lose their jobs — as will some who voted against it, presumably. But the people who remain will still be part of a union, and there is a principle they are upholding by attempting to defend the strength of numbers, even as they must realize the entity is a shadow of its former self.

Connor has been clearly in the driver's seat for some time now, and the unions' concessions only make him stronger. They have tacitly accepted his argument that union members have been overpaid and otherwise overcompensated in the past. Earning back any of the things they just gave up will be difficult, if not impossible: As an example, it will take at least eight years for any worker who survives the layoffs to return to his or her previous pay level — and that's true only if, after the two-year wage freeze, raises return to their previous 2-percent-per-year rate.

It will, then, be quite hard for the unions to counter any further claims Connor makes about what his company's financial needs are, and nigh impossible for them to effectively oppose anything he wants to try.

After the battle: Where will same-sex marriage be in 2010?

Published in the Portland Phoenix

In a fast-moving and historic couple of days in Augusta (pity they don't move so fast on other important issues), the Maine Legislature last week approved same-sex marriage, and Governor John Baldacci ended weeks of speculation about what he would do by signing it that very day.

The bill is now slated to take effect 90 days after the close of this legislative session, or September 14. But opponents are widely expected to collect the 55,087 signatures required to bring the question to the ballot in either November or June 2010, setting the stage for what may be a pretty intense fight. That's the short term. But it's much less clear what will same-sex marriage will be like in Maine after the post-battle dust settles, say, in late 2010.

We asked few folks involved in the debate what they think. And a large number of them — whether they are for or against same-sex marriage — predict that most people won't really give it a second thought, even a scant 18 months from now. Among the remainder, the chief sentiment is that the degree to which same-sex marriage is controversial will shift with time, possibly resulting in a repeal of the federal Defense of Marriage Act (which limits federal marriage benefits to one-man-one-woman couples), subtle shifts in clerical practice, or both.

An expanding movement

"Gay and lesbian couples will be getting married," predicts Shenna Bellows, executive director of the Maine Civil Liberties Union, one of the organizations that led the drive for marriage equality in Maine. But, like a true activist, she doesn't see it ending there. "Some of those couples may start to look to the federal level to rectify the discrimination that's occurring federally," she says, adding that "Maine's success will inspire citizens of other states to advocate for equality." And on a personal note, "In 2050, I think that I'll be telling my grandkids about the most historic moment of my legislative advocacy, and they'll be bored. They won't be able to imagine a time when we discriminated against gays and lesbians," similar to how many young people today struggle to imagine discriminating against African Americans.

End of controversy

Like Bellows, Dennis Damon, the Democratic senator from Hancock County who was the lead sponsor of Maine's same-sex marriage law, expects the controversy will largely blow over, though there will remain pockets of people who don't accept it, "just like there are those probably in this nation who have never accepted desegregation."

Damon, a notary public who is allowed to conduct civil marriages under Maine law, says he has been pleasantly surprised to find that people have asked him to officiate at their same-sex marriage ceremonies. He says the law allows him to agree to conduct some, and not others, as he has previously decided individually whether or not he will conduct heterosexual marriages, and "I'm not worried about being sued" over those decisions, as some same-sex marriage opponents have suggested might happen.

Stronger traditional marriages

Damon finds what may be unlikely agreement from Bob Emrich, director of the Maine Jeremiah Project, which has opposed same-sex marriage, and which is leading the people's-veto effort. By late 2010, same-sex marriage will be overturned and not mourned, but rather considered "a fad that's passed by," Emrich says.

But some, he hopes, might say to themselves that they "really haven't taken marriage as seriously as we ought to," and will undertake both personal efforts to shore up their relationships and begin to demand that state government act to "stabilize families."

Clearer church-state divide

Reverend Deborah Davis-Johnson, pastor of Immanuel Baptist Church in Portland and a member of Maine's Religious Coalition for Freedom to Marry, thinks the boundary between church and state will continue to become clearer. "Likely people will have separated the religious ceremony of marriage from the legal ceremony," she says. Some of that may come, she suggests, from clergy who, in efforts to treat all couples equally, regardless of sexuality, will eventually decline to sign state-issued marriage licenses, choosing rather to conduct religious marriage ceremonies and send couples to state or local government representatives for the legal certification process.

End to 'marriage control'

Mark Henkel, founder of TruthBearer.org, an Old Orchard Beach-based group promoting "Christian polygamy," says conservatives will continue to object to same-sex marriage, and predicts they will ultimately come around to his perspective: that governmental "marriage control" of any kind should end. "Both sides are redefining marriage," he says, either as one-man-one-woman, or any-two-adults; both, he says, discriminate against polygamists. He hopes government will eventually get entirely out of determining what is or is not a marriage, so long as it is between "unrelated consenting adults."

Increasing acceptance

Betsy Smith, executive director of Equality Maine, a leader in the push for same-sex marriage, is mostly thinking about the referendum fight, which to her is an effort to protect "fairness and equality for all Maine families."

She sees hope as young people, who "don't understand what the big deal is" and quite strongly, as a demographic group, support same-sex marriage, grow into political power that will continue that protection. (She also predicts "a big boost" for Maine's economy in wedding tourism.)

No destruction

"I don't think it'll be anything anybody's interested in anymore," says Reverend Stephen Carnahan, pastor of the Open House Church in Portland and a member of the Religious Coalition for Freedom to Marry. "Everyone will have found that it doesn't actually cause Armageddon."

While opponents fear "the end of marriage in Maine," he suggests that what they will find is that "even if they still disagree with it, they'll realize that it's not going to destroy things."

'Ongoing cultural divide'

Marc Mutty, the public affairs director for the Roman Catholic Diocese of Portland, expects success for the people's veto effort he is helping to lead, but says it won't be the end of the road, saying gay-rights activists will continue to push for same-sex marriage, in Maine, in other states, and at the federal level. "I expect this to be an ongoing cultural divide for years to come," he says, though he hopes that the people's veto will end most of the political debate, at least for a while. And, for his part, Mutty hints that if the veto fails, there won't be a next step.

Mercurial influence

Predictions from Portland's Best Comic and Psychic

Brian Brinegar, voted Portland's Best Comedian by Portland Phoenix readers earlier this year, went non-comic (and succinct), citing philosopher Arthur Schopenhauer: "All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident."

Robin Ivy, voted Portland's Best Psychic by Portland Phoenix readers, checked with the skies and has this to add: "The gay-marriage decision was made on the eve of Mercury retrograde, so it's a pretty sure thing it will be revisited sooner rather than later. Mercury retrograde is all about retracing steps and rethinking decisions made. At the same time, though, Pluto in Capricorn is working for long-term restructuring and confronting structures that have been in place like governments and, yes, the tradition of marriage. I predict in 10 or 12 years there will still be opponents of gay marriage, but for the most part all different kinds of families will live side-by-side with bigger concerns and a need for community, and move beyond this as an issue. We may be dealing with alien life forms, environmental changes, and technology to preserve life in general. Okay, that may be extreme, but you get the idea. We will have other work to do by then."

Prison Watch: Putting an end to the hunger strike

Published in the Portland Phoenix; co-written with Lance Tapley

Maine State Prison officials ended a hunger strike involving at least 10 inmates of the solitary-confinement Supermax unit in Warren by threatening to withhold the strikers’ psychotropic medications, according to allegations by an inmate who participated in the strike.

Eight inmates began striking on Sunday, May 3, demanding access to televisions or radios to help relieve the isolation of 23-hour-a-day solitary confinement. (Inmates in Maine, and in most other states, are not sentenced to solitary confinement by a judge, but rather are assigned there by prison staff, often for breaking even minor prison rules — a common practice despite the fact that many inmates suffer from mental illnesses that are not properly treated in prison and make it hard for them to follow rules.)

“Most states recognize that it’s a necessity to have a TV or radio to keep sane” in solitary, one of the protesters, Jesse Baum, wrote the Portland Phoenix in a letter dated the day the strike began. (Read an online report posted during the early days of the strike at thePhoenix.com/AboutTown.)

One inmate dropped out of the strike early last week, and two more had dropped out by May 8, though Associate Corrections Commissioner Denise Lord said then that two more prisoners had joined the protest.

Lord says the inmates did not receive radios, but voluntarily resumed eating over the weekend (she did not know the exact time it the strike ended, but said all were eating by the morning of May 11). According to Lord, prison medical and mental-health staff checked the striking inmates daily, though she would not say what they found, or whether inmates received any treatment, citing medical-privacy regulations.

In a May 7 letter to the Phoenix, Baum wrote that the prison’s medical staff were not treating the health problems he and other inmates had, and were planning on withholding medication for their various mental illnesses, such as “psychosis, paranoia, panic attacks, ADHD, bipolar, depression.” And in a May 10 letter, he said Acting Deputy Warden Dwight Fowles and prison mental-health workers “told inmates they were not to get meds while on hunger strike.”

Initially, Lord disputed those statements, saying “We would never refuse medication,” though adding that inmates can refuse to take it. But upon further questioning, Lord admitted that medical staff might have talked about withholding medications if it was “medically deemed necessary.” (She offered no examples, but agreed with a Phoenix suggestion that some of the medicine might have carried recommendations that it be taken with food.)

“Going on a hunger strike is a personal decision,” Lord said, saying that withholding medication might have been “a consequence” of that, and saying medical and mental-health staff would have given inmates “full understanding” of that possibility.

Ultimately, though, Lord said, “I’m not sure if medication was stopped. I really don’t know.”

Baum had previously said he thought the prison banned Supermax inmates from having radios for fear they would use the radio parts to harm themselves. Lord seemed to agree, saying Supermax inmates are restricted from having very much “personal property” (a designation that includes TVs, radios, electronic game systems, books, magazines, and photographs) in their cells, “primarily for safety and security reasons.”

Several of the inmates suffer from serious mental illness, Baum wrote to the Phoenix, identifying one hunger striker as Michael James, a severely mentally ill man whose incarceration at the prison has long been controversial. Robin Dearborn, his mother, describes the part of the Supermax where he is held as a “dungeon.” (For more on James, see “Punish the Mentally Ill,” by Lance Tapley, April 13, 2007.)

The last Supermax mass hunger strike, which lasted for several days, occurred in 2006 to protest the treatment of Ryan Rideout, a mentally-ill man who had hanged himself in his cell. (See “State Sued Over Inmate’s Death,” by Lance Tapley, March 5, 2008.)

Though the strike has ended, the Black Bird Legal Collective and the Maine Prisoner Advocacy Coalition will hold a rally at noon on Saturday, May 16, outside the prison, at 807 Cushing Road, Warren, to support the inmates and to demand “humane treatment of prisoners and an end to long term isolation and other forms of torture in Maine prisons.”