It smelled like cat crap stuck in a waffle-bottomed shoe. It needed washing. And that was my job. When a company’s problem stinks enough somebody decides, “Kick it to the lawyers.” Cover-your-ass memos keep lawyers employed.
This one’s tone was frank and sincere. One page long. Nobody took credit. It came from a “Department” of nursing, obstetrics and gynecology. It stated, “After flooding the uterus with saline to stimulate contractions and expulsion of the fetus we place the remains in an isolet, provide comfort measures and await the cessation of heart sounds and movement.”
“Here, shit-for-brains, take this memo and write our damn response.” The Senior Partner, the Managing Partner himself, had given me an assignment. Marines who landed on Iwo Jima sometimes talked that way, even 30 years later, on the 44th floor of a downtown high rise, wearing a Brooks Brothers suit and 300-dollar shoes. Whatever the memo said, my boss didn’t want to deal with it.
So I read the memo. The guts of it went something like this, “When a baby is delivered with a heartbeat and signs of movement, we prepare a birth certificate. If vital signs later cease, we prepare a death certificate.” It then asked, “Is that practice required by law in the case of a therapeutic abortion?”
“Let me understand this,” I thought. “Woman comes in for abortion, baby comes out with heartbeat, nurse puts baby in incubator, turns on heat lamp, and watches until heart stops beating. Do we need a birth certificate followed by a death certificate?” How should I know? Could the law require a nurse to drop by mom’s post-abortion recovery room to ask, “And what would you like to name your baby?” But then, in the next breath, “And may we ask you to designate your preferred funeral arrangements?”
In law school all this seemed so elegant, so well reasoned. Quite mechanical. Nothing messy. We just “balance the mother’s privacy rights” against any rights of the “unborn fetus” and, depending on the trimester of the pregnancy, somehow things get resolved in favor of the mother’s right to “terminate the unwanted pregnancy.” That was enough to pass the bar exam.
Now to apply my newly-minted credentials. “Under the applicable Administrative Code,” I wrote, “a baby born with any of three specified signs, including heartbeat, is ‘born alive’ and requires a birth certificate.” Once a birth certificate issues, a death must be certified as well. Clean and simple. My memo to the “Department of Obstetrics and Gynecology” was as short as the one I got. I never heard of it again, but the memory lingered, unsettled.
Years later I learned that medical technology apparently resolved the law’s awkward recovery room rituals. “In utero curettage” cleared up any unseemly discussions required by “the lawyers.” Aborted babies stopped being “born alive” because little pieces of tissue don’t have a heartbeat. A tidy solution to a messy legal conundrum.
I really dislike preachy articles about abortion. And that would be most of the ones I’ve read. They settle nothing and inflame everyone. So, for this intrusion into your world, I decline to bitch at you. This is all you’ll get: Somewhere I once read there is now no condemnation for those who are in Christ Jesus.
Why did the law seem so clear in law school, but so clumsy in practice? I remember how we celebrated a woman’s right to privacy and its connection to abortion. For women, a right soon enough well settled in law. For men, a welcome surge in the tide of opinion against prudes who’d say “no.” Zippers down, boys. Risk-free sex and best of all: no child, no child support. For any who doubted the law’s wisdom, fairness, and needed protection, the clincher involved the hypothetical 11-year-old pregnant girl, raped by her Neanderthal uncle. Is she without rights in the matter? Facts like that settled the issue, or so I believed. Still, The Memo’s aroma and my hard-headed response stuck like a burr in my sock.
The expert witness pushed a gigantic stack of medical records back across the conference table. “The doctor here did nothing wrong.” My relief at hearing that opinion was evident by the grin on my inexperienced face. “This little meeting is going well,” I gloated. It would likely mean another winning verdict—the full extent of my concern at the time.
But the case, involving obstetrics and gynecology, had one other twist. I couldn’t help asking a side question during this private, pretrial consultation. I noticed in the records a series of about six or seven repeated entries coded, “TAB.” At the time I didn’t know what it meant. He told me. “TAB is therapeutic abortion.” I asked why he thought there had been so many. “Was there something wrong?” “Oh, no,” he answered. And then, with the casual air of professional confidence he added, “Just gender shopping.”
I sat, staring. “Here, I’ll show you,” he offered. The doctor turned to the laboratory reports section of the medical records and showed me results from a series of amniocenteses. Each corresponded by date to just before every TAB. “You see, this patient would get an amniocentesis and it would tell her the gender of the fetus. As you can see, they were all girls. At least until she got her boy, which she delivered normally at full term. As for the female fetuses. . . . they were all aborted. It’s the law, you know.”
Yes, I knew the law. I knew about babies born alive and isolets and warming lamps and birth certificates and death certificates. But “gender shopping” right here in the United States was a new one on me. I’d read how the Chinese, constrained by their repressive regime’s “one child rule,” would keep a bucket of water beside a poor rural mother’s birth bed. If a baby girl emerged, the bucket was employed. If a boy, no need. The family was complete with its male heir.
How bitter my derision against the barbaric practices of the modern Chinese culture. What kind of people would do such a thing? How could they do it? What human community could build a silent consensus condoning the massacre of unknown numbers of baby girls? “Shameful,” I thought. And then, of course, I realized my racist, ignorant arrogance. How, indeed, could “those people” do this thing?
In the quiet confines of a conference room “those people” became “my people.” The medical records in a random lawsuit taught me that gender shopping was as common in my neighborhood as in the outer reaches of the Chinese empire. How many little girls would be sacrificed for the flimsy cause of male preference? How bizarre that such a practice in the United States had become possible through legal precedent designed to protect the rights of women. How unexpected that the site of gender shopping in the United States is not a bedside bucket but the sterile, protective sanctum of an otherwise life-sustaining medical clinic. How strange that the application of intricate laboratory testing first employed to save or enhance the life of an unborn baby should become the instrument of crude, gender-based decisions to end a baby’s life.
I now had two thorns in my sock.
After learning that ovarian cysts likely prevented us from having children, my wife and I began looking into adoption. Reconciling to adoption was no easy thing for my self-aggrandizing side. I had always imagined children of “my own.” You know, the whole “heir” thing. Sad. Still, that process moved me toward a new appreciation for children’s lives. And so, when medical miracles allowed us to get pregnant with our first, it was pure delight.
Our little home had a couch in the front room. We would watch TV there in the early days of the pregnancy. Sitting together on that couch, my wife put my hand on her belly. “The baby’s jumping,” she said with a giggle. As my hand rested there I felt movement. I felt the life-movement of our baby. Our baby, just weeks old, was alive in there.
My world moved as surely as our child did. The fetus inside my wife was alive. So were the gasping babies comforted with heat lamps while professionals pondered the rules of birth and death certificates. And so were the babies whose terminal blunder was being female. The laws that punish murderers of pregnant women with double homicide now made emotional sense to me. The laws that allow the unrestrained “termination” of living babies inside their mothers suddenly did not.
Walking with pointy burrs in your socks hurts. But a memo, some medical records, and a tiny movement helped clarify my mind and clear out my socks.
* * * * *
David R. Kenagy, a graduate of Pomona College and the UCLA School of Law, practiced with a large California firm for 15 years before returning to his home state of Oregon. After 16 years at a small, regional law school there, he retired as a Dean Emeritus. He writes from Salem, Oregon, where he can be reached through his website, usefulgod.org. He and his wife, Beth, have raised four sons together.