The fourteenth Amendment of the United States Constitution says, “nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws.” However, we frequently see our laws treating mothers very differently than fathers, especially when it comes to giving up rights or liberties in the best interest of a child.
According to ABC News, in March 2009, a Florida hospital obtained a court order allowing them to require that a woman who was 25 weeks pregnant stay in the hospital for the duration of her pregnancy to preserve the life and health of her unborn child. Samantha Burton had gone to the hospital due to concerns about premature labor, and when the medical staff recommended that she spend the duration of the pregnancy in the hospital on bed rest, she declined, stating that she had two young toddlers at home that needed care. The state justified this civil commitment, saying that the wellbeing of the unborn child was at risk and that, since Burton refused to quit smoking, they would keep her at the hospital regardless of her protest. Although Burton miscarried three days later, she, with the support of the American Civil Liberties Union is taking this case to court, arguing that the courts should not have the right to take away a woman’s right to make her own medical decisions.
Many states have fetal homicide laws, meaning that if someone were to kill a pregnant woman, he or she could be charged with the homicide of the unborn baby. Nineteen of these states apply the law at conception, but is this going too far?
On the surface, many people probably have no problem with this decision, but I will argue that this holds mothers to a much higher standard than expectant fathers.
How would we, as a society, have reacted if instead of a headline reading “Pregnant woman fights court-ordered bed rest,” we had a headline that said “State bars expectant father from entering his home because of Cigarette Smoking”? After all, a study released at a 1996 meeting of the American Association for Cancer Research in Washington, said the compounds associated with second-hand smoke can cause genetic damage and may be a prelude to childhood leukemia and other cancers. The study suggests that cancer-causing chemicals in cigarette smoke pass from mother to unborn baby, whether the mother smokes or not. Second-hand smoke can be just as harmful to an unborn child, but there would be uproar if we were to interfere with the freedoms or liberties of a man in his own home.
The unconstitutional actions of Florida should not go unpunished or overlooked. There is no justification for allowing limitations on the liberties of a pregnant female just like it is not appropriate to put limitations on the man or husband in the house where a pregnancy is taking place. To fail to do this is to fail to treat men and women equally under the law, as the Constitution clearly requires us to do.
Editor’s Note: Ruth Watry is a political science professor. She can be reached at [email protected]