Commentary Maternity and Birthing

When Hard Cases Make Good Law: Mass. Supreme Court Upholds the Personhood of Pregnant Women

Farah Diaz-Tello

From a tragic case in Massachusetts has emerged a rule affirming women’s fundamental personhood: “All births, regardless of venue, carry inherent risks; in the ordinary course, competent women who are pregnant may weigh these risks themselves and make decisions about the course of their own pregnancies and childbirths.”

The saying goes: Hard cases make bad law. Cases involving birthing women are no exception. A recent commentary in the New England Journal of Medicine examined the phenomenon of court-ordered medical treatment for pregnant women, and the legal reasoning underlying the cases in which this violation of women’s rights has been allowed. Fortunately, a recent decision from Massachusetts upheld the fundamental principle that women enjoy the same Constitutional rights as everyone else. [i] 

Two major factors encourage efforts to subject pregnant women to compulsory medical treatment and deny pregnant women their fundamental rights including the right to informed medical decision-making: first, the argument that fertilized eggs, embryos, and fetuses should be treated as completely legally separate from the pregnant women who carry, nurture, and sustain them; and second, the exigencies and emotional tension of cases involving pregnant women who are at term. The belief that lives are at stake, coupled with sham legal processes (including bedside interrogations, emergency telephone “hearings” in which every party but the pregnant woman has a lawyer, and no opportunity to present expert testimony on the woman’s behalf or even to challenge the claims against her), can lead even well-intentioned judges to authorize terrifying acts against pregnant women.

In refusing to order a woman identified as “Mother Doe” to undergo cesarean surgery without consent, the Appellate Court of Illinois considered the potential for state-authorized violence against pregnant women in such situations. In this 1993 case, doctors predicted that her fetus has “close to zero” chance of surviving vaginal birth. The court refused to grant outsiders the power to force Mother Doe to submit to surgery, stating:

“‘Enforcement could be accomplished only through physical force or its equivalent. [The pregnant woman] would have to be fastened with restraints to the operating table, or perhaps rendered unconscious by forcibly injecting her with an anesthetic, and then subjected to unwanted major surgery. Such actions would surely give one pause in a civilized society, especially when [the pregnant woman] had done no wrong.’ … We simply cannot envision issuing an order that, if enforced at all, could be enforced only in this fashion.”[ii]

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It is a relief, then, when courts manage to look past the emotionally-charged circumstances of birth and uphold women’s status as full persons under our Constitution. Such a decision was announced on Friday by the Supreme Judicial Court of Massachusetts.

On January 2, 2007, Allissa Pugh gave birth alone on her toilet to a baby who arrived in breech (foot-first) position. Even though she had not sought prenatal care, she knew from prior birth experiences that breech birth could be dangerous. When the baby emerged blue and unresponsive, she tried desperately to resuscitate him. Once it became clear that the baby was dead, she disposed of the body in the trash, where it was found by sanitation workers.

Allissa Pugh was charged with involuntary manslaughter based on the argument that she had engaged in a “wanton and reckless act” by failing to summon medical assistance during the birthing process. She was convicted and sentenced to two and a half years in prison. The ruling from the trial court recognized the pregnant woman and fetus are “biologically joined,” but stated nevertheless that pregnant women could be subject to “potential criminal liability for their conduct with respect to their unborn children.” The trial court asserted: “Recognition that a legal duty exists on the part of a pregnant woman to refrain from wanton or reckless acts committed against her own viable fetus does not impermissibly intrude into ‘protected spheres of life.’”[iii]

On appeal, the Supreme Judicial Court had the benefit of extensive briefing, and even publicly sought amicus curiae (friend of the court) briefs. (This is in contrast to the few cases in which courts have upheld forced interventions on pregnant women.) Briefs were filed by the ACLU, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers, and the Women’s Bar Association of Massachusetts. Citing “grave constitutional concerns,” the court overturned the conviction.

The court rightly recognized that criminalizing a failure to summon medical treatment during childbirth would “result in the effective criminalization of medically unassisted childbirth, such as unattended births [which occur as a matter of circumstance or choice] or home births with a lay midwife.” Creating a duty to refrain from negligence during pregnancy, the court reasoned, would create virtually limitless opportunities for the state to police pregnant women, with serious questions as to when the duty attaches: e.g., at what point in pregnancy? How complicated would the childbirth have to be? What risks would a woman have to be aware of?

The court also addressed the due process nightmare that would ensue from such a duty:

“Drawing the line between what is lawful and what is criminal conduct on the part of pregnant women and women in labor would be left to individual law enforcement officials and judges. Given the socially freighted nature of questions surrounding a pregnant woman’s relationship to her fetus, it is not difficult to foresee a patchwork of unpredictable and conflicting prosecutorial and judicial actions resulting from the newly created duty to summon medical assistance at issue here.”

The work of National Advocates for Pregnant Women’s documents exactly this kind of arbitrary and frightening delegation of authority to local police and prosecutors in cases emerging around the country. Even faced with a set of difficult facts and a bad birth outcome, Massachusetts held that women retain their carefully-guarded right to control of their bodies and lives, “however unwise [her] sense of values may be in the eyes of the medical profession,” on equal footing with all other people under our Constitution. From this tragic case emerged a rule affirming women’s fundamental personhood:

“All births, regardless of venue, carry inherent risks; in the ordinary course, competent women who are pregnant may weigh these risks themselves and make decisions about the course of their own pregnancies and childbirths.”

News Law and Policy

Supreme Court Rejects Challenge to Washington Law Requiring Pharmacies to Stock Plan B

Jessica Mason Pieklo

On Tuesday the Roberts Court turned away a challenge by a pharmacy-owning family who claimed a Washington state law that requires pharmacies to stock Plan B or other emergency contraception violated their religious beliefs.

The Supreme Court on Tuesday refused to hear a challenge by a pharmacy owner who claimed religious objections to a Washington law requiring pharmacies to stock and dispense Plan B or other emergency contraception.

In 2007, the Washington State Board of Pharmacy adopted rules governing the mandatory stocking and delivery of emergency contraception. The rules do not require any individual pharmacist to dispense medication in conflict with their religious beliefs. Instead, if a pharmacy employs a pharmacist who objects to dispensing emergency contraception for religious reasons, the pharmacy must keep on duty at all times a second pharmacist who does not object to dispensing those drugs.

The Stormans family—who own a local grocery store and pharmacy in Olympia, Washington—challenged the rules in 2012, arguing that the rules required them to violate their religious beliefs. Those beliefs, they said, include a conviction that life begins at conception; therefore, emergency contraception acts as an abortifacient, which they also object to providing.

The medical community does not consider emergency contraception to be an abortifacient.

A district court agreed with the Stormans that the rules could force them to violate their religious beliefs by stocking the medication. But in 2015, the U.S. Court of Appeals for the Ninth Circuit reversed and rejected the Stormans’ claim.

On Tuesday the Supreme Court let stand that Ninth Circuit ruling. However, Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas dissented from that decision. Writing for the dissenting justices, Alito called the case “an ominous sign” for religious liberties protections in the country.

“There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose,” wrote Alito. “And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time,” continued Alito.

“If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern,” he continued.

American Civil Liberties Union Deputy Legal Director Louise Melling disagreed with Justice Alito’s assessment of the case. “The court properly refused to take this case,” Melling said in a statement following the order. “When a woman walks into a pharmacy, she should not fear being turned away because of the religious beliefs of the owner or the person behind the counter. Open for business means opens for all,” said Melling.

“Refusing someone service because of who they are—whether a woman seeking birth control, a gay couple visiting a wedding catering company, or an unwed mother entering a homeless shelter—amounts to discrimination, plain and simple. Religious freedom is a core American value and one that we defend, but religious freedom does not mean a free pass to impose those beliefs on others,” Melling wrote.

Meanwhile, Alliance Defending Freedom Senior Counsel Kristen Waggoner, who represented the plaintiffs in the case, expressed disappointment in the decision. “All Americans should be free to peacefully live and work consistent with their faith without fear of unjust punishment, and no one should be forced to participate in the taking of human life,” said Waggoner in a statement after the denial. “We had hoped that the U.S. Supreme Court would take this opportunity to reaffirm these long-held principles.”

News Law and Policy

Colorado Law Requires ‘Reasonable Accommodations’ for Pregnant Workers

Jason Salzman

In signing this bill into law Wednesday, Gov. John Hickenlooper added Colorado to a growing list of states that have passed laws requiring worker protections for employees who are pregnant or have related conditions.

Colorado Gov. John Hickenlooper signed into law a bill Wednesday requiring “reasonable accommodations” for workers who are pregnant, recovering from childbirth, or suffer from pregnancy related medical conditions.

The accommodations may include: longer or more frequent breaks for food or water, modified schedules, adjusted seating arrangements, assistance with manual labor, “light duty,” and more. But the law specifically states that an employer is not required to hire, transfer, or fire an employee to make such accommodations on behalf of a pregnant person, unless such actions were already planned or would be reasonable.

The bill, HB 1438, garnered bipartisan support in Colorado’s divided legislature, drawing “no” votes only from Republicans, such as state Rep. Gordon Klingenschmitt (Colorado Springs), state Rep. Stephen Humphrey (Severance), and Sen. Randy Baumgardner (Hot Sulphur Springs).

All house and senate Democrats backed HB 1438.

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The intent of the general assembly, the bill states, is “to combat pregnancy discrimination, promote public health, and ensure full and equal protection for women in the labor force by requiring employers to provide reasonable accommodations to employees with conditions related to pregnancy, childbirth, or a related condition.”

Pro-choice advocates see HB 1438 as advancing reproductive justice in the state.

“Our mission is advocating for reproductive justice and ensuring every woman has the right and the ability make her own health care choices,” said Karen Middleton, executive director of NARAL Pro-Choice Colorado, in a news release. “And when women do choose to have children, workplaces should respect that choice, not discriminate, and accommodate their needs on the job.”

Opponents of the bill worry that the law will have a negative effect on businesses and jobs.

“I didn’t have a tenacious opposition to the bill,” state Sen. Chris Holbert (R-Parker) told Rewire. “But I’m concerned that this is another requirement for employers, making it more difficult for them to hire or keep people employed.”

At least 17 states, including California, New York, and Texas, have passed similar laws providing different levels of protection.

However, a bill this year to provide pregnancy accommodations in Washington state cleared the Republican-controlled senate but died in the hands of GOP house members.

The federal Pregnancy Discrimination Act (PDA) of 1978 clarified that it’s sex discrimination to discriminate based on pregnancy, childbirth, or related conditions. A recent U.S. Supreme Court ruling held that employers are in violation of the PDA if they don’t accommodate pregnant workers as they would accommodate their non-pregnant employees.

Federal legislation with expanded protections and accommodations, called the Pregnant Workers Fairness Act, has stalled in Congress, even though it has some bipartisan support.

In 2015, the Equal Employment Opportunity Commission issued a non-binding guidance on pregnancy discrimination, stating that in the years since the Pregnancy Discrimination Act was passed, charges “alleging pregnancy discrimination have increased substantially.”