VOL.6 NO. 9 (SEPTEMBER, 1996)
FETAL RIGHTS, WOMEN'S RIGHTS: GENDER EQUALITY IN THE WORKPLACE by
Suzanne Uttaro Samuels. Madison, Wisconsin: University of
Wisconsin Press, 1995. 225 pp. Cloth $32.50. Paper $12.95.
Reviewed by Eileen L. McDonagh, Department of Political Science,
Northeastern University.
FETAL RIGHTS, WOMEN'S RIGHTS by Suzanne Uttaro Samuels is an
unusually strong analysis of how the law deals with the
intersection of women's reproductive rights and their employment
rights in American society. The author adroitly bridges the gap
between the legal analysis of historical and contemporary
perspectives of women's employment rights and the relation of
those rights to more general cultural and legal views of women's
reproductive roles.
In discussing to what degree men's and women's different
reproductive capacities should be the basis for different
treatment by the law, she contributes a useful discussion of past
and present gender discrimination, including protective laws,
ERA, and the male draft. She links fetal protection policies to
early twentieth century classic cases, such as 1905 LOCHNER v.
NEW YORK decision as well as the 1908 MULLER v. OREGON decision
where the Supreme court ruled in the former that protective labor
legislation for men was unconstitutional for non-hazardous
occupations, but in the latter that protective labor legislation
for women who were working at night was constitutional. She does
a good job drawing parallels between this heritage of employment
protection for women and contemporary versions of fetal
protection policies as well as the Equal Rights Amendment (ERA)
and what the implication of that would have been for sex
discrimination policies. Her historical dimension nicely
complements other books addressing fetal protection policies,
such as cross-national comparisons provided by Sally Kenney in
FOR WHOSE PROTECTION? REPRODUCTIVE HAZARDS AND EXCLUSIONARY
POLICIES IN THE UNITED STATES AND BRITAIN, and the cross-issue
analyses in Cynthia Daniels' AT WOMEN'S EXPENSE: STATE POWER AND
THE POLITICS OF FETAL RIGHTS.
In her book, Samuels takes what might be considered a
courageously modern, as opposed to post-modern, point of
departure in distinguishing sex and gender. As she puts it,
"sex is based on biological characteristics and gender is
socially constructed" (p. 4). In this respect she can
concede that there are fundamental sex differences between men
and women which rightly govern the way to debate gender equality,
or the way we socially construct the meaning of different
biological capacities between men and women. As she says,
"the core debate over fetal protection policies are
questions about the nature of sex difference" (p. 19).
In exploring that debate, another strength of Samuel's book is
her analysis of how different branches of government respond to
fetal protection policies. In Chapter 4, she examines
congressional legislation, such as Title VII of the 1964 Civil
Rights Act as well as the 1976 Pregnancy Discrimination Act, and
Executive Orders. She discusses how nearly all challenges to
fetal protection policies in the 1980s were based on Title VII,
and that this is what the Supreme Court ultimately used as a
framework to strike down fetal protection policies as a form of
gender discrimination. She shows, however, that congressional
agencies were "opting out of the fetal protection
policies" (p. 136) and that is the reason that opponents of
the policies began to turn to the courts as a way of fighting how
the policies would violate Title VII.
Despite its many merits, however, I do have some reservations
about this book. First, Samuels does not really deliver on her
promise to link in a systematic way fetal protection policies in
employment contexts with those in the context of abortion. In the
discussion of Title VII and fetal protection and the introduction
of the idea of pregnancy as a medical condition that needed to be
protected, it is not clear what the relationship is between
pregnancy, as defined by the 1976 Pregnancy Discrimination Act,
and pregnancy in the context of the right to terminate this
condition by means of an abortion.
A second and more serious concern is that although she says she
will look at the relationship between fetal protection and fetal
rights, she never really does examine the language of court cases
or congressional debate to explicate possible connections.
Rather, as her title seems to imply, courts' recognition of the
legitimacy of the state's interest in protecting fetuses somehow
creates "fetal rights" which are then in conflict with
"women's rights." Yet, protection is a much broader
category than rights, and not every entity protected by the state
thereby acquires rights by virtue of that protection.
In ROE, for example, the Supreme Court went overboard to
establish that potential life is not covered by the protections
of the Fourteenth Amendment (pp. 157-158), and, thus, not
entitled to constitutional rights, even though it was
constitutional for the state to protect potential life by
prohibiting abortions after viability unless a woman's life or
health were in danger. In CASEY, the Court reinforced the
distinction between protection and rights. Although the Court in
CASEY emphasized that protecting the fetus is a legitimate state
interest from the moment of conception, as Justice Stevens noted
in his concurring opinion, "the state interest in potential
human life . . . is not grounded in the Constitution. It is,
instead, an indirect interest supported by both humanitarian and
pragmatic concerns" (p. 2840).
It is not clear, therefore, where fetal rights come from, if they
do not come from constitutional standards or from the explicit
language of legislative policies, since they cannot be inferred
from protection alone. The state can have a legitimate interest
in protecting rocks and trees, as in the protection of
conservation land, but that hardly means that the rocks and trees
have interests of their own, much less rights. Protection by the
state, therefore, is not necessarily concomitant with rights of
the entity protected. Samuels' book, however, offers an
incomplete, if not confusing, analysis of this vital point. As
she states, courts have often referred to fetuses as
"'unborn children,' and granted these FETUSES RIGHTS
separate from those of women" (p. 137, emphasis added). I am
not aware of any Supreme Court decision that has granted fetuses
rights, and if such decisions exist, the author owes it to us to
tell us what they are. To do otherwise obscures the key issue,
which is the means the state uses to balance its own interest in
protecting the rights of women with its interest in protecting
the value of potential life.
The distinction is clear in the JOHNSON CONTROLS case as well. As
Justice Blackmun, delivering the opinion of the Court, stated,
the case concerned "an employer's GENDER-BASED
FETAL-PROTECTION policy" (p. 190). The language of the
Supreme Court through-out JOHNSON CONTROLS, when referring to the
issue of fetal protection, did not invoke the language of fetal
rights. The case was not concerned with fetal rights, but rather
with an analysis of the MEANS used to protect fetuses from harm
and from the risk of harm. While it is constitutional to protect
fetuses, it is a violation of federal law (Title VII) to use a
gendered-based policy that discriminates against workers on the
basis of their sex as a means for protecting fetuses.
The main problem with this book, therefore, is that because it
does not advance our understanding of the distinction between
protection and rights, it offers no buffer to the growing
tendency to confuse them as one and the same. The legal and
political ramifications are serious, since the growing tendency
for courts and legislatures is to grant greater and greater
protections to fetuses. Courts in three states now recognize
wrongful death suits for previable fetuses, and California has
successfully prosecuted a criminal conviction for the death of a
previable fetus. Should such protection of fetuses actually be
translated into fetal rights, the connection between fetal
protection policies and abortion rights policies do threaten to
collide head-on. The main reason this has not yet happened is
precisely because fetal protection does not yet constitute
grounds for fetal rights, but it is that distinction and issue
that needs to be addressed in books such as Suzanne Uttaro
Samuels', not confused.
With these reservations aside, however, I do recommend FETAL
RIGHTS, WOMEN'S RIGHTS as a useful classroom addition to courses
on women and politics, public policies, and gender and the law.
It is well-researched and unusually well written, and its
historical scope and attention to the different branches of
government will be informative and valuable to a wide range of
audiences.
Roe v. Wade 410 U.S. 113 (1973).
Planned Parenthood of Southeastern Pennsylvania v. Casey, 112
S.Ct. 2791 (1992).
UAW v. Johnson Controls, 499 U.S. 187 (1991).
Copyright 1996