Sarah Burns, professor of clinical law, and the Reproductive Justice Clinic filed an amicus brief defending women’s rights. In the case, a petitioner appealed the judgment of a lower Family Court that had found that her relocation while pregnant from California to New York was tantamount to “appropriation of the child while in utero.”

As noted in the New York Times article about the case, the parties are Sara A. McKenna, a former Marine and firefighter now attending Columbia University, and Bode Miller, the Olympic skier. McKenna and Miller, who met in 2012, have been in a custody fight for more than a year.

Burns and her clinical students were joined in the brief by National Advocates for Pregnant Women, the New York Civil Liberties Union, and nine other organizations. The brief detailed how the referee’s interpretation of the relevant statute placed unconstitutional constraints on a woman’s basic life decisions, such as where she lives, works, and attends school while pregnant.

“The referee’s decision had far-reaching implications for pregnant women, effectively stripping them of fundamental constitutional rights,” Burns, who is director of the Reproductive Justice Clinic, said in a statement.

On November 14 the New York Supreme Court Appellate Division issued a ruling for the matter of Sara Ashton McK. v Samuel Bode M., rejecting the lower Family Court’s finding that the petitioner’s decision to move while pregnant was so “reprehensible” that it could bar New York courts from hearing her child custody case. Burns and the other co-authors on the amicus brief applauded the judgment.

In the New York Times, Burns commented, “with current political pressures to recognize separate legal rights for fetuses, there will be increasing calls on the courts to fault a pregnant woman for moving, to restrain women from living their lives because they’re pregnant.”

Posted on November 25, 2013