Pregnant woman given HOV ticket argues fetus is passenger, post-Roe

Pregnant woman given HOV ticket argues fetus is passenger, post-Roe(washingtonpost.com)

34 points by adam 3 years ago | 26 comments

"Bottone, who was 34 weeks pregnant at the time, pointed to her stomach. Even though she said her 'baby girl is right here,' Bottone said one of the deputies she encountered on June 29 told her it had to be 'two bodies outside of the body.' While the state’s penal code recognizes a fetus as a person, the Texas Transportation Code does not."

I would be extremely surprised if the state's transportation code specifically called out "outside the body". Also I don't think it would make sense if it did. What's the functional difference between an en-wombed child and a recently released one in this situation?

I say they should let her go in the HOV lane.

The Texas Department of Transportation says the HOV lane can be used by "a vehicle occupied by two or more people" and nothing in their list of exclusions precludes pregnant women.

https://www.txdot.gov/driver/managed-lanes/high-occupancy-ve...

duxup 3 years ago | |

> What's the functional difference between in an en-wombed child and a recently released one in this situation?

What is the difference between a 20 and 21 year old?

Just a dividing line that is easy to understand.

I’m ok with that. Laws should be easy to understand even if they include lines that seem arbitrary immediately on one side or the other.

ALittleLight 3 years ago | | |

Sure, but in this case there is no easy to understand clear line. The law doesn't say anything about having to be a person outside of a body or whatever. There is no clear line and there is no functional difference, therefore the woman isn't breaking the law and should not be ticketed.

Looking further into it Texas Transportation Code Title 6 Chapter 224 subchapter F section 224.151 says:

"(3) 'High occupancy vehicle' means a bus or other motorized passenger vehicle such as a carpool or vanpool vehicle used for ridesharing purposes and occupied by a specified minimum number of persons."

You can download the Texas Transportation Code here: https://statutes.capitol.texas.gov/Download.aspx and if you do that and grep for what "person" might mean anywhere in the transportation code, like so:

    grep -io '"person" means [^.]*.' *

You get...

    tn.394.htm:"Person" means an individual, association, or corporation.
    tn.397.htm:"Person" means an individual, corporation, or association.
    tn.472.htm:"Person" means an individual, firm, association, or corporation and includes an officer, agent, independent contractor, employee, or trustee of that individual or entity.
    tn.52.htm:"Person" means an individual, association, organization, trust, partnership, or corporation.
    tn.541.htm:"Person" means an individual, firm, partnership, association, or corporation.
    tn.601.htm:"Person" means an individual, firm, partnership, association, or corporation.
    tn.680.htm:"Person" means an individual, partnership, firm, corporation, association, or other private entity.
    tn.730.htm:"Person" means an individual, organization, or entity but does not include this state or an agency of this state.

I don't see any reason to think that the Transportation Code requires that person not contain another in order to qualify for the HOV lane. I think the police officer in this story made that up. I actually think that the law is 100% on this woman's side and her ticket should be dismissed. This is not a case of ambiguity, it is the case of the law clearly and explicitly stating that she is correct.

fundad 3 years ago | | |

Does that apply to maximum ages for drinking, voting, signing contracts and driving? No, we have no maximum ages because older people are a more powerful constituency than 20 or 17 year-olds. Pregnant people are not a powerful enough constituency for these laws to provide them leniency. It's not about the life of the fetus either the movement limiting or banning abortion is out to change culture such that people are more afraid to wait to have children.

fargle 3 years ago | |

NOTE: this is a sarcastic, but non-fictional, commentary on how law and lawyers make the world a better place, not on who's right about anything contraversial.

> The Texas Department of Transportation says the HOV lane can be used by "a vehicle occupied by two or more people"

The DOT website isn't authoritative of course

The offense would seem to be from the transportation code 452.0613(d)(2):

https://codes.findlaw.com/tx/transportation-code/transp-sect...

    452.0613(d)(2) operating a vehicle in or entering a high occupancy vehicle lane operated, managed, or maintained by an authority with fewer than the required number of *occupants*.

"Occupants" is never defined in the transportation code.

The penal code has different definitions of "Person" than the transportation code:

https://codes.findlaw.com/tx/penal-code/penal-sect-1-07.html

    1.07(26)  "Individual" means a human being who is alive, including an *unborn child at every stage of gestation* from fertilization until birth.

    1.07(38) “Person” means an *individual* or a corporation, association, limited liability company, or other entity or organization governed by the Business Organizations Code.

But that's not relevant to the transportation code. Even if you argue that "occupant" means a "Person riding in the vehicle", and then that "Person" here includes unborn individuals, then it's also just as perfectly reasonable she would be instead guilty of violating 455.412:

https://codes.findlaw.com/tx/transportation-code/transp-sect...

    455.412(a) A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.

There seems to be no exception for child individuals that are younger than no years of age.

A possible defense could be to claim that the mother's womb was in this case the "child passenger safety seat system" and also, being the manufacturer, she had secured the child in accordance with her own instructions.

I hope she takes this to court, I have a feeling they'd dismiss the ticket rather than have these arguments, but if they do it'd be interesting...

yucky 3 years ago | |

>I say they should let her go in the HOV lane.

I think if this ends the debate on whether a fetus is a life or not, then so be it.

But I suspect many pregnant women will still want the right to be selective of when to treat it as a separate life and when not to...

x86x87 3 years ago | |

What about those 3+ hov lanes? Simple! Twins!

curtis-paris 3 years ago |

I have always felt it should be 'Two or more LICENSED persons per vehicle". The idea is to remove cars from the road for the HOV lanes. Kiddie poolers are not removing cars, they are just giving them VIP access. Remove extra drivers by sharing is the intent. Make it so!

idlehand 3 years ago | |

Any car with more than one person in the vehicle should have VIP access. That's at least twice as efficient use of space and natural resources as one person in a 2-ton SUV driving to work or wherever.

deadmutex 3 years ago | | |

Case to consider: Taxi, Uber, Lyft, etc? Those have 2 people, but only 1 person is really traveling to the destination most of the time.

pastword 3 years ago | |

That might be the intention, but it creates a hurdle to using the lane AND create another racket to police people for. HOV lanes cause traffic with a "QoS" capping roadway bandwidth while creating a channel for multiple drivers.

If you want to incentivize efficient highway use, deny it to all but multiple humans over the age of 0 days (no pun intended).

And then beyond that, rip up highways and replace them with train services.

deadmutex 3 years ago | |

Taxis (including Uber/Lyft) are worse IMO. In the bay area, many schools do not have school buses, then maybe we should invest more in school buses to reduce cars on the road (HOV lane or not). At big companies which have buses to shuttle employees to the office, many parents cannot use them because they have to stop at a school, etc.

duxup 3 years ago | |

> Kiddie poolers are not removing cars

I car pooled with classmates and their parents as a kid.

bagacrap 3 years ago | | |

count unlicensed riders as half a person. That way a carpool with two kids and one adult is HOV.

SamReidHughes 3 years ago |

Roe v. Wade didn't protect abortions at 34 weeks already. And if the kid's a passenger, it needs to be in a child safety seat.

anakaine 3 years ago | |

Sounds like this needs to be tested by the supreme court. An unborn kid can't each be a kid, a passenger, a foetus, inside the mother, and outside the mother at the same time.

Their ruling would probably be that the kids needs to be removed from the womb by the mother for the duration of the journey, whereupon it will be safely secured in a child seat in the second row, then placed back in the womb once the journey has come to an end.

willcipriano 3 years ago | | |

> Sounds like this needs to be tested by the supreme court.

Not really, the supreme court just decided that it's up to the legislative branch to decide things like this.

pjbeam 3 years ago |

Suppose she got slammed on the road by a malicious driver intentionally and died along with the baby. If the malicious driver could be charged with two homicides under TX law (I don't know) then it seems reasonable to conclude two people occupied the vehicle through the lens of Texas law.

s1artibartfast 3 years ago | |

Killing a viable fetus is murder in california, as is criminal actions which lead to the death of a fetus up to 3 months prior to its death.

I imagine it is similar in Texas

cardiffspaceman 3 years ago |

Guardian duplicate:

https://www.theguardian.com/us-news/2022/jul/09/texas-woman-...

SenHeng 3 years ago |

Unable to read article. What does HOV stand for?

Managed to deduce from comments that it’s some kind of commuting lane but can’t figure out the acronym.

privacyking 3 years ago | |

High occupancy vehicle

fundad 3 years ago |

People who want to ban or limit abortion through the criminal code by definition give police more power not less.

simonh 3 years ago | |

That’s not necessarily the case because if a foetus is legally a person, then they gain rights they wouldn’t otherwise have.

fundad 3 years ago | | |

This article is about the law enforcement’s power to make that call

blamestross 3 years ago |

Well that was only a matter of time.

tn.394.htm:"Person" means an individual, association, or corporation. tn.397.htm:"Person" means an individual, corporation, or association. tn.472.htm:"Person" means an individual, firm, association, or corporation and includes an officer, agent, independent contractor, employee, or trustee of that individual or entity. tn.52.htm:"Person" means an individual, association, organization, trust, partnership, or corporation. tn.541.htm:"Person" means an individual, firm, partnership, association, or corporation. tn.601.htm:"Person" means an individual, firm, partnership, association, or corporation. tn.680.htm:"Person" means an individual, partnership, firm, corporation, association, or other private entity. tn.730.htm:"Person" means an individual, organization, or entity but does not include this state or an agency of this state.

1.07(26) "Individual" means a human being who is alive, including an *unborn child at every stage of gestation* from fertilization until birth. 1.07(38) “Person” means an *individual* or a corporation, association, limited liability company, or other entity or organization governed by the Business Organizations Code.

455.412(a) A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.