Fetal protection policies and laws

The original title of my last post was After Roe: Is Johnson Controls next? It looked like a silly pun about dicks. Or perhaps that was just me.

At any rate, I did link to UAW v. Johnson Controls, but when looking for a link I realized this is ancient history to some readers, especially if they missed Erik L.’s TDLH post last year.

By 1973, Johnson Controls succumbed to EEOC pressure and hired some women in its Bennington, Vermont battery plant. In 1977, like the other companies, it put in a sterilization policy, which it called voluntary and a “fetal protection plan.” It required all women who did, against the company’s strong advice, take a job working with the batteries, to sign a waiver saying they had been warned about the dangers of lead poisoning. A lot of women went ahead and did this. But in 1982, Johnson Controls decided to just ban women from the work. They defended their discrimination and ridiculously toxic factory with patriarchal and condescending language, noting: “A child born with lead poisoning is tragic. To knowingly poison unborn children is morally reprehensible. Johnson Control will do everything within its power to avoid having this happen at its manufacturing plants.” The workers and their union, the United Auto Workers knew what this really was about–Johnson Controls didn’t want to get sued.

Oops. They were sued and they lost. But the idea that certain jobs are “morally reprehensible” when a woman does them is the sort of thing that gets Republicans drooling.

I also linked to Michele Goodwin’s Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront. It was written in 2014 and it’s not like the GOP has become less depraved since then.

Increasingly, state statutes are the primary means through which legal norms affecting low-income pregnant women’s autonomy, privacy, and liberty are introduced and shaped. Arrests, forced bed rests, compelled cesarean sections, and civil incarcerations of pregnant women in Alabama, Florida, Indiana, Iowa, Mississippi, New Mexico, South Carolina, Texas, Utah, and Wisconsin merely scratch the surface of a broad attack on pregnant women. This recent era of maternal policing reshapes physician and police interactions with pregnant women accused of violating fetal protection laws (FPLs); inspires (and sometimes requires) medical officials to breach confidentiality when treating pregnant women; motivates selective prosecution against poor women, particularly those of color; and evinces improper judicial deference to medical authority rather than law.

This Article makes three claims. First, it argues that doctors breach what should be an unwavering duty of confidentiality to pregnant patients by trampling the well-established expectations of the patient-physician relationship. Second, it argues that even if states’ chief goal is to promote fetal health by enacting protectionist laws, punitive state interventions contravene that objective and indirectly undermine fetal health. Finally, the Article argues that FPLs unconstitutionally situate pregnant women as unequal citizens by unjustly denying them basic human and legal rights afforded other citizens.

The framework for using alleged concern about hypothetical fetuses to legalize discrimination against women in the workplace already exists. I think the only questions are which state will take the first stab at it? And when will that happen?