Despite these arguments, the Fifth District Court of Appeals, in Florida, upheld Johnson's conviction. It agreed with the prosecution's argument that Johnson's umbilical cord had delivered cocaine to her children after their birth but before the cord was cut, thereby violating a Florida statute against the delivery of a controlled substance to a minor (Fla. Stat. Ann. §893.13(1)(c) [West 1991]).

States will continue to struggle with this issue as they seek to achieve the best balance between maternal and fetal rights. States will also have to consider whether or not to hold criminally liable women whose use of legal substances such as alcohol or tobacco harms the fetus.

Fetal Protection Policies

Fetal protection policies bar fertile women from specific jobs out of fear that those jobs may cause harm to any embryos or fetuses the women might be carrying. These policies came into widespread use by many companies during the 1970s and 1980s, before a 1991 U.S. Supreme Court decision, UAW v. Johnson Controls, 499U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, declared them a form of sexual discrimination that violates Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq. [1982]). Despite the Court's decision in Johnson Controls, those critical of fetal protection policies feared that the policies would be continued in more subtle forms.

Willow Island, West Virginia, Women Paid the Price of Fetal Protection Policies

The 1991 U.S. Supreme Court ruling that declared fetal protection policies to be a violation of Civil Rights laws came too late for five women from West Virginia who were forced by their employer to choose between undergoing a sterilization procedure to avoid health risks associated with their higher paying jobs, remaining fertile but moving to lower paying jobs, or quitting their jobs altogether (International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158 [1991]). The women worked at an American Cyanamid factory in Willow Island, a poor region where decent-paying jobs were scarce. They were all among the first women to work in these factories, which, before 1974, had employed only men.

In 1978 the company introduced a policy that no fertile women would be allowed to work in its lead pigments department. The company claimed that hazardous chemicals in that department might harm women's reproductive system. Fertile women under age 50 would have to be sterilized or take jobs in other areas of the company, virtually all of which paid less. Men, whose reproductive system might also be damaged by lead, were not subject to restrictions.

The seven women then employed in the lead pigments department found themselves facing an agonizing choice: whether to reduce or sacrifice their income or undergo a surgical procedure that would render them unable to bear children. Five of the women chose sterilization.

The Labor Union to which the women belonged eventually took the women's case to court, claiming that the company's fetal protection policy represented a violation of federal occupational safety standards because it required an individual to be sterilized in order to be eligible for work. The union lost the case in the federal appeals court (Oil, Chemical, & Atomic Workers International Union v. American Cyanamid Co., 741 F.2d 444 [D.C. Cir. 1984]). However in the 1991 Supreme Court ruling, this decision was reversed.


Abortion; Civil Rights Acts; Women's Rights.

Johnson Controls grew out of a fetal protection policy created in 1982 by Johnson Controls, an automobile battery manufacturer. The company's policy excluded pregnant women and women capable of bearing children from battery manufacturing jobs. The company maintained that the jobs in its manufacturing plant exposed women to levels of lead that might harm any embryo or fetus they might be carrying.

In 1984, a group of Johnson Controls employees, together with their Labor Union, the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), filed aClass Action suit in federal court challenging the company's policy. They charged that the policy constituted Sex Discrimination in violation of federal civil rights law.

In the final ruling on the case, the U.S. Supreme Court held that fetal protection policies unfairly discriminate against women because they do not demand that men make a similar choice regarding the preservation of their reproductive health in a potentially hazardous workplace.

Companies that have created fetal protection policies argue that they are necessary to protect their employees. Critics of fetal protection policies maintain that they effectively exclude all women aged 15 to 50 from well-paying jobs unless the women can prove they have been sterilized. They also contend that such policies raise privacy questions because they often require women to provide proof that they cannot have children in order to take specific jobs. Critics also point to instances in which women have undergone sterilization procedures because they faced the loss of high-paying jobs. Other critics argue that male reproductive organs may also be affected by hazardous substances in such a way that a fetus might be harmed. Nevertheless, no company has created similar policies for men.

fourth amendment search and seizure cases can also touch on fetal rights. In Fergusonv. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d. 205 (2001), the Supreme Court ruled on a case concerning nonconsensual drug testing of pregnant women. In Ferguson the state argued that the drug testing was performed as a measure to help protect unborn fetuses and that these searches fell under the "special needs" exception to the Fourth Amendment. Cases recognizing the exception have employed a Balancing test weighing the harm caused by the warrantless intrusion on the individual's privacy interest against the "special needs" that supported the intrusion. The court held that the South Carolina state hospital's drug testing of pregnant patients to obtain evidence for law enforcement purposes does in fact violate the Fourth Amendment. The majority rejected the state's argument that testing fell within the "special needs" exception to the Fourth Amendment. The court said the state's interest in using the threat of criminal sanctions to deter pregnant women from using drugs does not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. The court further held that the drug tests, conducted by the Medical University of South Carolina, constituted an unreasonable search if the patient had not consented to the procedure.

Further readings

Bates, Kelly F. 1995. "Cesarean Section Epidemic: Defining the Problem, Approaching Solutions." Boston University Public Interest Law Journal 4.

Blank, Robert H. 1992. Mother and Fetus: Changing Notions of Maternal Responsibility.Westport, Conn.: Greenwood Press.

Condoll, Blair D. 1994. "Extending Constitutional Protection to the Viable Fetus: A Woman's Right to Privacy." Southern University Law Review 22 (fall).

Faludi, Susan. 1991. Backlash: The Undeclared War on American Women. New York: Crown.

Samuels, Suzanne Uttaro. 1995. Fetal Rights, Women's Rights: Gender Equality in the Workplace. Univ. of Wisconsin Press.

Wellman, Carl. 2002. "The Concept of Fetal Rights." Law and Philosophy 21 (January).


Child Abuse; Drugs and Narcotics; Fetal Tissue Research; Parent and Child; Physicians and Surgeons.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

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Please make note that I, Jessica Lynn Hepner the creator of What Every Parent Should Know, is not giving legal advice. I am not a lawyer. I am giving you knowledge via first hand experiences.

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Save A Life by Angie Kassabie
I URGE ALL MY FRIENDS TO READ & SHARE THIS; YOU COULD SAVE A LOVED ONES LIFE BY KNOWING THIS SIMPLE INFORMATION!!! Stroke has a new indicator! They say if you forward this to ten people, you stand a chance of saving one life. Will you send this along? Blood Clots/Stroke - They Now Have a Fourth Indicator, the Tongue: During a BBQ, a woman stumbled and took a little fall - she assured everyone that she was fine (they offered to call paramedics) ...she said she had just tripped over a brick because of her new shoes. They got her cleaned up and got her a new plate of food. While she appeared a bit shaken up, Jane went about enjoying herself the rest of the evening. Jane's husband called later telling everyone that his wife had been taken to the hospital - (at 6:00 PM Jane passed away.) She had suffered a stroke at the BBQ. Had they known how to identify the signs of a stroke, perhaps Jane would be with us today. Some don't die. They end up in a helpless, hopeless condition instead. It only takes a minute to read this. A neurologist says that if he can get to a stroke victim within 3 hours he can totally reverse the effects of a stroke...totally. He said the trick was getting a stroke recognized, diagnosed, and then getting the patient medically cared for within 3 hours, which is tough. >>RECOGNIZING A STROKE<< Thank God for the sense to remember the '3' steps, STR. Read and Learn! Sometimes symptoms of a stroke are difficult to identify. Unfortunately, the lack of awareness spells disaster. The stroke victim may suffer severe brain damage when people nearby fail to recognize the symptoms of a stroke. Now doctors say a bystander can recognize a stroke by asking three simple questions: S *Ask the individual to SMILE. T *Ask the person to TALK and SPEAK A SIMPLE SENTENCE (Coherently) (i.e. Chicken Soup) R *Ask him or her to RAISE BOTH ARMS. If he or she has trouble with ANY ONE of these tasks, call emergency number immediately and describe the symptoms to the dispatcher. New Sign of a Stroke -------- Stick out Your Tongue NOTE: Another 'sign' of a stroke is this: Ask the person to 'stick' out his tongue. If the tongue is 'crooked', if it goes to one side or the other that is also an indication of a stroke. A cardiologist says if everyone who gets this e-mail sends it to 10 people; you can bet that at least one life will be saved. I have done my part. Will you?

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