Projects in the News

The Reproductive Justice Clinic partners with the ACLU Reproductive Freedom Project, the Center for Reproductive Rights, and National Advocates for Pregnant Women (NAPW) to investigate various aspects of federal reproductive health care policy. Currently, the clinic working on the pretrial and trial of a case in the Fourth Circuit on remand, among other projects. Find out more about some of their projects below.

State Family Courts Punishing Pregnant Women Who Move, Violating UCCJEA

Many family court judges, having jurisdiction over a divorce or other family matter, mistakenly believe that they have jurisdiction over a child born in another state comes under their jurisdiction when  a woman who moves from their state while she is pregnant and gives birth elsewhere.  In fact, the Uniform Child Custody Jurisdiction and Enforcement Act, passed by all states except Massachusetts, sites jurisdiction with the “child’s home state”, which would typically be the place of birth and initial residence of the born child, rather the state of prior residence of the mother or current residence of the father.

McKenna v. Miller

McKenna v. Miller involved a jurisdictional issue under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), raising questions about the status of pregnant women and the definition of the word “child” in that uniform law. At issue was which state, New York or California, was the proper one to determine custody of a baby who was born in New York, but whose father lived in California. Under the UCCJEA, jurisdiction would ordinarily lie with “the home state,” in this case where the baby was born. The clinic filed a 56-page amicus brief with NAPW and on behalf of the NYCLU, NOW New York State and 9 other organizations in the New York Supreme Court Appellate Division First Department. The case drew the attention of the amici curiae because the referee rejected the home-state priority, deciding instead that California should have jurisdiction in part because the mother, by changing her residence to New York while she was pregnant, had engaged in “unjustifiable conduct”—tantamount to abducting a child.

Read the brief of amicus curiae submitted by the NAPW, NYCLU and others, as well as the Family Court Referee's decision here.

In a unanimous opinion issued November 14, 2013, the First Department panel decided in favor of the mother and New York’s “home state” jurisdiction. The court opined “We … disagree with the Referee's finding that the mother's ‘appropriation of the child while in utero was irresponsible’ and ‘reprehensible’ and warranted a declination of jurisdiction in favor of the California court. Rather, the mother's conduct at issue here amounts to nothing more than her decision to relocate to New York during her pregnancy. Further, we reject the Referee's apparent suggestion that, prior to her relocation, the mother needed to somehow arrange her relocation with the father with whom she had only a brief romantic relationship. Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally-protected liberty ….”

Read decision of the Appellate Division, First Department, here.

Clinic Press Mentions:

"Abortion Rights at Risk: The GOP Opens a New Front in the War on Women"
Rolling Stone, 4/22/2015

"Bode Miller Changed His Mind And Hurt Pregnant Women’s Rights Along With It", 12/9/13

"Custody Battle Raises Questions About the Rights of Women"
New York Times, 11/23/13

Additional Reading:

"New York Court Affirms Moving Out of State While Pregnant Is Not ‘Absconding With a Child’"
RH Reality Check, 11/18/13

Poag-Emery v. Emery

The Carr Center and 7 amicus curiae filed a brief in support of a Melissa Poag Emery’s petition for certiorari to the Michigan Supreme Court challenging jurisdiction of Michigan family court under the UCCJEA where the Michigan family court conditioned grant of divorce on the woman’s dismissal of her child custody petition in Illinois where she had returned while pregnant after the marriage failed, reestablished residence, gave birth and remained obtaining employment.  See the brief here.  Without comment, the Michigan Supreme Court denied certiorari.

Challenge to Wisconsin Fetal Protection Law

Loertscher v. Schimmel & Anderson

Filed, December 15, 2014, Loertscher v. Van Hollen & Anderson, 14 cv 870, US District Court Western District of Wisconsin, challenging the constitutionality of Wisconsin’s 1997 Act 292, which empowers state actors to detain pregnant woman who has consumed alcohol or drugs, subject her to coerced treatment, threaten to take her newborn if she isn’t compliant and jail her if she doesn’t cooperate with the state agencies decisions about her medical treatment.

Case Documents:

Beltran v. Strachota

Beltran v. Strachota, et al.:  In this case, the Reproductive Justice Clinic is partnered with local counsel Linda Vanden Heuvel and the National Advocates for Pregnant Women (NAPW) to support the case of Alicia Beltran, a Wisconsin woman who was detained because, during a prenatal checkup, she had spoken of overcoming a pill addiction the previous year. Under federal habeas corpus jurisdiction, Ms. Beltran  challenged her involuntary detention drug treatment on grounds that the the constitutionality of a 1998 Wisconsin law was unconstitutiona. The State immediately released Ms. Beltran, after 70 days being forcibly separated from home and family, and dismissed its family court action against her arguing in federal court that her challenge there had been mooted.  After 10 months the federal court dismissed her action without prejudice reasoning that it had no relief to offer under federal habeas.  In dicta, the court also said that the facts as alleged, if true, were deeply troubling and speculated that she still had an action for damages under 42 U.S.C. Section 1983.

Read the memorandum of law (PDF) that the clinic completed with NAPW in this case.

Clinic Press Mentions:

"Shackled and pregnant: Wis. case challenges 'fetal protection' law"
NBC News, 10/24/13

"Rights of Fetus Versus Mother in Wisconsin"
Wisconsin Public Radio, 10/24/13

"Case Explores the Rights of Fetus Versus Mother"
New York Times, 10/23/13

Additional Reading:

"Physicians and the (Woman's) Body Politic"
New England Journal of Medicine, 1/16/14

"No Longer Human"
The Nation, 1/10/14

"What does giving rights to a foetus mean for women? Ask Alicia Beltran"
Guardian, 11/12/13

"Wisconsin Lawmaker Seeks Change to ‘Fetal Protection’ Law"
RH Reality Check, 11/1/13

"The right’s war on pregnant women"
Salon, 10/31/13

"Why is the GOP Inserting Gov. into a Women's Uterus?" (VIDEO)
The Big Picture RT, 10/31/13

"How the "Crack Baby" Scare Armed the Pro-Life Cause"
New Republic, 10/29/13

"Rep. Chris Taylor seeks changes to Wisconsin's "fetal protection" law" 
Isthmus, 10/28/13

"Wisconsin woman challenges the state’s fetal protection law"
Associated Press, 10/25/13

"Shackled and pregnant: Wis. case challenges 'fetal protection' law"
NBC News, 10/24/13

General News

"New NYU Law Center Promotes Reproductive Rights"
New York Law Journal, 12/2/13