Mama's Got a Plan:

Maternity Care, Health Insurance, and Reproductive Justice


A Third Amendment theory of abortion rights

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This cartoon grew out of the study of different constitutional theories of abortion rights, some better known than others. The First and Second Amendments of the Constitution have infiltrated the popular imagination, but the Third -? What is the Third Amendment, anyway?

Frame 1. The soldier in the title frame is General John Burgoyne, as shown in his portrait by Sir Joshua Reynolds, c. 1760.

Frame 2. Justice William O. Douglas first articulated the Privacy framework in the case of Griswold v. Connecticut (381 U.S. 479 (1965)), which concerned not abortion rights, but the right of married couples to use contraception. As Privacy is not a right specifically named in the Constitution, Douglas introduced the concept of a penumbra, a cloud emanating from the Bill of Rights, chiefly the First Amendment. Privacy was defined as preventing the government from interfering with marital privacy. This protected area was later expanded to rights to contraception for unmarried people, and then to abortion rights (see Roe v. Wade, 410 U.S. 113 (1973).

Frame 3. Justice Ruth Bader Ginsburg believed that abortion rights were better protected by the Fourteenth Amendment’s Equal Protection Clause:

“… legal challenges to undue restrictions on abortion procedures do not seek to vindicate some gen­eralized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.”
Gonzales v. Carthart, 550 U.S. 124 (2007), dissent

Ginsburg’s critique of Roe‘s constitutional basis is described in greater detail in this article. Neil S. Siegel and Reva B. Siegel, in their 2013 journal article, “Equality Arguments for Abortion Rights,” further explore the Equal Protection argument by quoting Justice Blackmun’s dissent in Planned Parenthood  v. CaseyBlackmun asserts that the Court’s assumption that women “can simply be forced to accept the ‘natural’ status and incidents of motherhood—appears to rest upon a conception of women’s role that has triggered the pro­tection of the Equal Protection Clause.”

Frame 4. According to the History Channel, the photo of African-Americans in the cotton fields represents a “slave family standing next to baskets of recently-picked cotton near Savannah, Georgia in the 1860s.” The realities of slavery with respect to women’s reproduction has been ably addressed by Dorothy Roberts and Rickie Solinger, who discuss both the coercive nature of these women’s pregnancies as well as their subjugation to the role of producers of future slaves.

The connection to abortion rights is the Thirteenth Amendment, which forbids slavery and involuntary servitude. Legal scholar Andrew Koppelman, in his 2012 article, “Originalism, Abortion, and the Thirteenth Amendment,” draws an analogy between the forced labor of slaves, including their forced reproduction, and the forced labor of women compelled by abortion bans to carry their pregnancy to term. Of course, Koppelman is not claiming that absence of abortion access is equivalent in severity to the past system of slavery in this country, only that both issues can be seen as a violation of the Thirteenth Amendment.

Frame 5. The crowd at the 2004 March for Women’s Lives seems puzzled by the Third Amendment. The photo of the march by Bubamara, shared under a Creative Commons license, is augmented by an airplane towing a “Keep Abortion Legal” sign.

Frame 6.  At last! All is explained! The Third Amendment forbids the forcible housing of military personnel in a citizens’ homes. Its incorporation in the Bill of Rights was a reaction by the Founders to that very practice carried out by the British during the Revolutionary War. The home pictured here is the Brewster House of Setauket, New York, built in 1665. The photo is by Iracaz, shared under a Creative Commons license. The reluctant B&B host is taken from a work housed in the New York Public Library. She is Elizabeth Zane, whose exploits are detailed here; apparently, she was the inspiration for Zane Grey’s Betty Zane (1903), the first volume of his Ohio River Trilogy.

Frame 7. The Guttmacher Institute, one of the prime sources of U.S. abortion data, lists state abortion restrictions enacted during the last several years. The old woman in the shoe, it is surmised here, has so many children that she doesn’t know what to do because of these abortion restrictions. She accuses the state of forcibly housing a fetus in her uterus.

Frame 8. Prepare for a romp through property law, Dear Reader! (Remember, don’t go to law school.) We apply this question: when can someone else be in your home? In this frame, the fetus is compared to a guest who has been invited, but is now being asked to leave – as is acceptable at common law, under which guests of property owners or tenants possess relatively few rights. The scene shown, for those who came of age after reruns of The Jeffersons ceased, is of Mr. Jefferson ejecting Mr. Bentley. The dialog, however, is taken not from The Jeffersons, but from The Spellbinders Collection. Our thanks to Ed G. for suggesting this source.

Frame 9. On the other hand, perhaps the fetus is more like a tenant delinquent in rent payments and now facing eviction, as shown in this 1892 painting, Evicted, by Danish artist Erik Henningsen. This image is in the public domain. This comparison highlights the uncompensated nature of women’s labor: the fetus, after all, gives no consideration in exchange for housing – and neither does the state that imposes abortion restrictions.

Frame 10. We move on to trespassing. Harrison Ford, as President James Marshall, spends most of Air Force One (1997) playing hide-and-seek with a deadly group of planenappers. When Gary Oldham (“Ivan”) is finally in the president’s clutches, he is violently pushed off the plane. We show the classic line in a still from another scene (in which the president growls, “Leave my family alone!”). The true scene of Ivan’s end is here. It is worth mentioning that property owners are discouraged from using self-help to eject trespassers; since the president had no sheriff accessible, he can probably be forgiven for taking matters into his own hands.

Whether the fetus is trespassing on the pregnant person is an interesting philosophical question. However, given that almost half of all U.S. pregnancies are unplanned, it is fair to say that in many cases, the fetus is present against the pregnant person’s wishes.

Frame 11. Even a person who comes on the land without the owner’s permission may gain some property rights. A prescriptive easement is granted when a person takes adverse possession of the land: their use of the land is open, notorious, and hostile. That is, they use the land openly and against the owner’s wishes, continuously over the course of a statutory period defined by the state. At the end of this period, they are granted an easement to be on the land.

In Michigan, the statutory period is fifteen years. Therefore, we show a fifteen-year-old fetus establishing a Disco in Utero. Even if she is there without her mother’s permission, may she invoke the law in continuing to occupy the space, operate strobe lights and loud music, and dance all night?

Confirmation of the Michigan fifteen-year statutory period led to immediate thoughts of a prenatal quinceañeras celebration. Alas, there is not room here to explore this idea; the concept will have to be set aside for another cartoon. Forewarned!

Please note that this image is the only instance in this cartoon of a visibly pregnant person. That is because 65% of abortions in the U.S. are carried out by eight weeks’ gestation, before most pregnancies have begun to show at all. In fact, 91% of all abortions are carried out by thirteen weeks, still very early in a typical 40-week pregnancy. We felt that a fifteen-year gestation, on the other hand, really demanded a visibly pregnant person.

Frame 12. The final frame shows a 1787 painting of the Hartley family, by Henry Benbridge. We discovered this painting on the blog 18C American Women, maintained by art historian Barbara Wells Sarudy; we later tracked it down to the collection of the Princeton University Art Museum.

The ladies of Family Hartley are declaring their autonomy and personhood as an explanation of why an analogy of the fetus to an occupier of maternal land must ultimately fail. To separate pregnant person and fetus as conflicting entities – occupier and occupied – is tempting but unsound. As explained by the authors of Laboring On: Birth in Transition in the United States, mother and fetus constitute a bonded dyad.

A fetus is neither property nor a legal person, but a potential person. Women are not houses, airplanes, or discos. The fetus is not their possession, but part of them. The reason that pregnant people are the best decision-makers about abortion – or childbirth, for that matter – is that they are the experts. They hold close to their hearts the interests of their families, present and future, their own lives, and their many other responsibilities.


Your cartoonist expresses gratitude to SMV for inspiring this cartoon through his persistent complaints of the sad neglect of the Third Amendment in both U.S. jurisprudence and high school government classes.

[Updated Oct. 22, 2016, for some minor grammar and punctuation fixes. Updated Oct. 23, 2016, to fix factual error about Griswold.]

[Updated Oct. 11, 2017, to fix capitalization errors and the spelling of Gary Oldham’s name. In addition, we deleted a few sentences at the end of the post that we had unconsciously lifted from the end of a Margaret Drabble novel!]

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The midwife national convention

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It’s time for the
Midwife National Convention!

Publicity for the upcoming annual conference of the Midwives Alliance of North America, combined with this summer’s Republican and Democratic national conventions, were the twin inspirations for this cartoon.  It seems unlikely that we will elect a midwife-in-chief anytime soon, but cherishing midwives’ skills and experience under the cover of political maneuvering seems like an end in itself.

References and Explanations

Frame 1. The background photo is from one of this summer’s conventions. Does it matter which? The MNC logo is based on a graphic by Sam Taeguk, shared under a Creative Commons license.

Frame 2. Every gathering needs a quilt exhibit! This quilt is intended to convey – by the variety of fabrics in the baby blocks – the diversity of North American midwifery. Every midwife has been caught out at least once wearing good clothes when the urgent summons to a birth arrives. What to do with those stubborn stains? When Spray N Wash fails, cut up that fabric for a quilt! Many thanks to Kathy Peters for her quilt design skills. The person gazing at the quilt is taken from a photo by Phil Roeder, shared under a Creative Commons license.

Frame 3. The photo by Pete Souza shows a 2009 meeting of President Obama’s cabinet, shared under a Creative Commons license. We’ve taken the liberty of cropping out the President, but perceptive readers will recognize individual cabinet members.

Frame 4. This frame shows the White House Situation Room, as portrayed in The West Wing.

Frame 5. This song, published in 1980 by Molly Scott of Sumitra, is sung here in the U.S. House of Representatives.

Frame 6.  Anyone with knowledge of the midwifery model of care will recognize the original context for the words MANA president Marinah Farrell is speaking to Vladimir Putin against the background of the Oval Office:

Laboring person: I can't do it!!!
Midwife: You're doing it!

The Midwifey Face is an invention of your cartoonist, who theorizes that midwives are endowed with special facial features or expressions that allow them to persuade anyone to do anything, no matter how difficult.

 


The right to refuse medical care

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The Law Giveth and Taketh Away:
Religion, Science, and the Right to Refuse Care

This cartoon grew out of our astonishment that, particularly in the context of childbirth, U.S. law seemed to most strongly approve the right to refuse care when the refusal was based on irrational grounds. Evidence-based refusals both in law and in fact seemed to meet with much stronger resistance.

Legal Basis for the Right to Refuse Care

The right to refuse care is itself based on the overarching ethical principle of informed consent. While common understanding of informed consent is that a patient has signed a consent form that allows a provider to continue with a suggested treatment or procedure, in reality informed consent is – or should be – a repeated process, in which the following actions take place:

  • The provider explains the suggested treatment or procedure. The explanation sets forth the risks and benefits of the treatment as well as the risks and benefits of any alternatives, including doing nothing. The provider must ensure the patient understands what they have been told.
  • The patient makes a decision based on the information received, as well as on their own values and circumstances.

Case Law

Although informed consent requirements are now incorporated into patients’ rights acts in some states, informed consent doctrine has traditionally evolved as interpreted through a line of court cases, as shown in this cartoon in dark red text.

  • Schloendorff v. Soc’y of NY Hosp., 105 N.E. 92 (N.Y. 1914). Patients who do not consent to treatment that is carried out on their bodies can sue the provider for battery, with exceptions for emergencies and unconscious patients.
  • Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). Physicians bear a responsibility to explain the risks of a procedure to the patient before proceeding with treatment.
  • In re Quinlan, 70 N.J. 10, 355 A.2d 647 (NJ 1976). Patients may refuse care, even if not receiving the care might result in their death.
  • Stamford Hosp. v. Vega, 236 Conn. 646 (1996). The court ruled that the hospital had violated the rights of the plaintiff, a Jehovah’s Witness who refused a blood transfusion. The hospital had obtained a court order that allowed it to administer transfusions or blood products to the plaintiff for a postpartum hemorrhage. This case supports the right of a mother to refuse care, notwithstanding the contention that the loss of the mother would cause harm to the child.
  • McFall v. Shrimp, 10 Pa. D. & C. 3d 90 (July 26, 1978). A person cannot be forced to donate body tissue (here, bone marrow), even if not to do so would cause death in the person needing the donation, and even if the potential donor is a close relative (here, a first cousin).
  • Tamesha Means v. United State Conference of Catholic Bishops (appeal in progress). Tamesha Means, a Michigan woman experiencing a miscarriage at 18 weeks, was denied care at a Catholic hospital because her fetus still had a heartbeat. The hospital’s actions were a result of a directive of the U.S. Conference of Catholic Bishops that prohibits abortion under all circumstances. Rather than intervening when Means developed an infection, the hospital turned her away without disclosing that the refusal to treat her was based in religious belief rather than in the standard of care. The case was dismissed at the trial court, but Means appealed to the Sixth Circuit Court of Appeals, where it now awaits a decision.

Statute

Some provisions in state statute allow providers to refuse to offer care and require that parents accept care for their minor children.

  • Provider “Conscience Clause” statutes. Many states have enacted legislation to permit various health care providers to file a professional, ethical, moral, or religious objection to any procedure without any consequences for the individual provider or institution. Michigan’s law, Mich. Comp. Laws §§ 20182-4 concern abortion, but other states have enacted broader provisions for refusing to provide other services, such as filling contraceptive prescriptions.
  • Required newborn procedures. State public health code usually specifies mandated procedures to be performed on newborns. As a rule, the parents have the right to opt out of most or all procedures. In Michigan, for example, only newborn screening and prophylactic eyedrops are mandated by statute. The legal duty to perform the procedures tends to attach to the provider, which is perhaps why parents are discouraged from opting out, often to the extent of simply being told, “it’s the law” that their child receive these procedures. Other procedures, such as Vitamin K and Hepatitis B vaccine administration, are also often characterized by providers as being legally required. Enforcement varies by state; New York is usually held out as the strictest state in requiring parents to accept the procedures for their child. Regardless, parents are increasingly sharing anecdotes of being threatened with reporting to Child Protective Services if they refuse this care.

References and Explanations

Frame 1. The building in the background is, of course, the U.S. Supreme Court building.

Frame 2. Count Dracula is refusing a transfusion because he is a practicing Jehovah’s Witness, as signified by the copy of The Watchtower tucked under his arm.

Frame 3. Parents do have to put their foot down on serious matters like broken legs and Sunday School attendance. Parents are empowered by law to make medical decisions for their minor children. Children cannot give informed consent, although they are – ideally – consulted to see whether they assent to care. Little Jimmy apparently does not.

Frame 4. Thanksgiving dinner, when the family is all present and dismantling a large bird, seems the ideal time to talk about donating body parts. It’s either that or politics, right?

Frame 5. The nurse in this illustration is invoking a conscience clause right to refuse to assist with an abortion. If the refusal seems sudden, that is because state law does not require providers to register their refusal at any given time – or indeed, forbid them from changing their stance at any time.

Frame 6. Tamesha Means’s less than forthright provider (see Tamesha Means v. United State Conference of Catholic Bishops, above) did not inform her that she was suffering from an infection that could ultimately prove life-threatening. Means was fortunate not to be permanently injured, unlike a case in Ireland that ended tragically. See the story of Savita Halappanavar.

Frame 7. Many providers believe that a signed informed consent form of the kind that is often required when a patient is admitted to a maternity care unit constitutes a contract that cannot be changed. Nothing could be farther from the truth. Consent can be revoked vocally at any time.

Frame 8. The topic of who decides for the fetus is a rich one – and much too complex to include in this cartoon. Move along now!

Frame 9. Medical malpractice liability is often held up as an excuse for ignoring informed consent requirements – or as an opportunity to blame lawyers. (Health care providers tend to forget that lawyers defend them too!) This frame seeks to make the point that there is no corresponding liability avoidance right for the provider that would trump the patient’s right to refuse care.

Frame 10. Continuous electronic fetal monitoring (EFM) for all pregnancies is the standard of care in the United States, even though it has not been shown to improve outcomes in low-risk pregnancies. (It does reduce the number of seizures suffered by newborns, but not to the extent that final outcomes are affected.) Furthermore, EFM has been shown to lead to an increase in cesarean sections. Maternity care patients in particular have been heard to remark with surprise that they seem to be responsible for upholding their right to consented-to care that is also evidence-based. One would think that it would be the provider’s responsibility to offer this care, but … blame the lawyers! In truth, the provider’s hands often are tied – usually by their own institution’s policies or their malpractice liability insurer’s rates.

Frame 11. See Required newborn procedures, above. The mother in this frame is musing on the likelihood of her one-day-old baby being exposed to Hep B by sharing needles with a cribmate.

pastafarian-800Frame 12. If you have not yet become acquainted with the Church of the Flying Spaghetti Monster, you can remedy that omission here. Perhaps the strategy suggested in this frame is inadvisable, since a Nebraska Federal District Court declined to recognize FSM as a religion. You can find a lovely stained glass panel representing the FSM here. The story behind an adherent of FSM (a “Pastafarian”) and her successful struggle to be permitted to wear her religious head covering in a state ID photo is documented here.

 

[Updated July 16, 2016, to add copyright designation.]

 


Breastfeeding article posted on MSU bioethics blog

In Murphy’s Breast: Lactation Law and Advocacy in 2014, I discuss four instances in which breastfeeding parents found themselves affected by law and advocacy efforts last year. Many thanks to Michigan State University’s Center for Ethics and Humanities in the Life Sciences for inviting me to write this piece.

Special bonus for Mama’s Got a Plan readers: A fifth section of the post that had to be cut to meet length requirements is included below.  More is more!


 Section 2.5. The Sleeping Breast: We Really Think You Shouldn’t!

Public health recommendations have unwittingly discouraged breastfeeding by insisting on separating parents and babies during sleep, based on incomplete and sometimes outright faulty evidence. While maintaining breastfeeding depends on mothers’ ability to feed babies at night, the practice of bedsharing, common throughout the world, is discouraged in the U.S. for fear that sleeping parents will accidentally suffocate their babies. Many public health initiatives focus on procuring safety-rated cribs for newborns.

Proponents of bedsharing – and breastfeeding – have long held that while babies should sleep apart under certain conditions, such as having an impaired parent or one who smokes, in most cases infant safety increases when infants sleep in close proximity to their breastfeeding mothers, on an appropriate surface. The supposedly higher rate of Sudden Infant Death Syndrome (SIDS) attributed to bedsharing has been discredited by the presence of co-founding variables. Breastfeeding is believed to be protective against SIDS and, of course, in many other ways beneficial to infant health.

Evidence now shows that recommendations for separate infant sleep have actually harmed infant health. Parents who try to heed warnings to avoid bedsharing are more likely to fall asleep on couches or padded chairs with their infants; those surfaces are dangerous to infants, because babies may become trapped between their parents and padded crevices of the furniture.

How curious then that policy makers continue to emphasize “Safe Sleep” policies that equate deterrence from bedsharing with increased infant safety. Michigan went so far as to enact legislation that compels hospitals to advise new parents on infant sleep practices. To be fair, the law itself does not include a warning against bedsharing. It delegates the power to issue recommendations to the Michigan Department of Community Health – that persists in its prescription that babies sleep by themselves, on their back, without any items in their cribs. The law, having created additional liability for hospitals that fail to distribute safe sleep materials to their patients, excuses hospitals from such liability if they retain a “signed parent acknowledgment statement” of having received such materials.


You can read the article in its entirety here.

 


“[U]nconsented-to medical treatment is only generally a battery. Consent to a particular procedure may be “inferred from the patient’s action of seeking treatment or some other act manifesting a willingness to submit to a particular course of treatment.” [internal cite omitted]. Here, Carol came to the hospital for the purpose of medical treatment: the birth of Mikayla. The complaint itself admits that Carol had used marijuana and methamphetamines the week before giving birth to Mikayla. […] Insofar as we can determine from the pleadings and the record, Carol did not at any time communicate to any personnel at the hospital that she wished not to be tested for drugs. Testing Carol for drugs without first obtaining her consent did not constitute a battery here, where Carol unambiguously consented to the course of treatment — the birth of Mikayla — pursuant to which the drug test was conducted, and where Carol in no way communicated a desire not to be tested.”

I ran across the text above when looking for something else entirely in Michigan case law. In the 2008 case of Jodis v. Brubaker, the Michigan Court of Appeals apparently felt that when you enter a hospital to give birth, you automatically consent to anything your providers think is necessary, unless you explicitly tell your providers you do not consent to that procedure they haven’t told you about.

I will leave it to your imagination as to how this might play out for people in labor and what would happen if this scenario were extended to any other class of people seeking medical care.

What we have here is neither informed nor consent.


Not my usual topic, but not as far removed as you might think

Abortion rights article is not just about abortion!

My most recent article, “Michigan’s New Abortion Insurance Rider Law: Challenges, Spin, and Justice,” is now available on the blog of Michigan State University’s Center for Ethics and Humanities in the Life Sciences.

Although abortion rights is not my usual focus, fans of Mama’s Got a Plan may wish to read the article to the end to see how I tie abortion rights into the larger context of Reproductive Justice and then – presto! chango! – discuss the relevancy to my favorite topic of rights in pregnancy and childbirth.

Other content at MSU

MSU allowed me a great deal of freedom in constructing the article, for which I’m very grateful. I’d also like to thank them for inviting me to speak last year on the topic of vaginal birth after cesarean. The talk, The Declining Provider: Refusal, Responsibility, and Reasonableness, is still available as a free webinar.

Coming soon

  • Fun pop culture post
  • Custom-drawn blog header

Stay tuned!


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Michigan Senate Bill “Legalizes Breastfeeding in Public”? No, Even Better!

The recently passed Michigan Senate Bill 464 received a warm but somewhat confused reception from local media. The voices of the internet – not surprisingly – jumped at this new opportunity to sermonize on public breastfeeding. But what is the bill really about? What is it not about? What is its public policy basis?

What it is

The bill amends Michigan’s Elliott-Larsen Civil Rights Act to include breastfeeding as a right whose exercise may not be prohibited by discriminatory practices. Such rights currently consist of religion, race, color, national origin, age, sex, and marital status. The Elliott-Larsen Act, like the federal Civil Rights Act of 1964, prohibits discrimination by private actors in the context of public accommodation. These federal and state laws were originally enacted to address race-based discrimination in public accommodation.

Michigan S.B. 464 and its companion House Bill 4733 do the same for breastfeeding. The act of breastfeeding in public is already protected by statutes that prevent breastfeeding women from being charged under indecent exposure laws. However, this constrains the behavior only of law enforcement and fails to forbid privately-owned establishments from refusing to accommodate breastfeeding women. The new legislation, if enacted, would permit breastfeeding in all places the mother herself has the right to be.

What it is NOT

Nursing mothers vs. formula-feeding mothers

This is not an opportunity for media flame wars on whether mothers should breastfeed or formula-feed. Although science has established breastfeeding to be largely beneficial to mothers and children, there are women who should not or cannot breastfeed. Before we start throwing stones, it would be prudent to review the minimal accommodations for women who want to, but cannot, breastfeed. We have no national policy on parental leave, save the very limited, unpaid leave available under the Family Medical Leave Act. It was  only under the Affordable Care Act that the federal government granted women working outside the home the right to take unpaid time to pump breast milk in a private place that is not a bathroom – but as breastfeeding legal expert Jake Marcus points out, these provisions may be less effective than they appear. In any case, the ACA provision covers only the right to pump milk, not to the right to actually breastfeed.

Breastfeeding also comes with real costs. While the milk itself bears no price tag, that very fact obscures the considerable costs in time and labor to the mother. Until we can support and subsidize these costs, we must affirm the decision of the mother who weans a child in order to take care of other responsibilities, not least of which may be getting an education, caring for other children, or making a living.

Every mother’s experience of breastfeeding is unique; indeed, one mother’s experiences can vary from pregnancy to pregnancy. We can continue to improve circumstances for mothers who wish to breastfeed and make sure that unbiased information about risks and benefits is available to them, but we must trust mothers to make the right decision for themselves and their children.

The sexy breast vs. the nursing breast

Likewise, this should not be our cue to reopen the quarrel about whether breasts are for sexual partners’ gaze or for nursing our children. This line of argument makes it sound as if breasts were pets kept on leashes rather than being actual attached body parts. Our breasts are “for” whatever we say they are for –  and they are far from having only two functions.

The fact that sexualized breasts are frequently visible in public is often used to suggest that these sexy breasts somehow contaminate nursing breasts with sexiness, thus making nursing breasts in public unacceptably sexual. However, following the thinking of sociologist Linda M. Blum, I believe it is the other way around: In our society, the chief acceptable public use of breasts or other female body parts is for sexual display. Nursing breasts in public are transgressive, because they are used for the non-sexual purpose of nourishing children. Urging nursing women to be “discreet” by covering up their nursing breasts aims to banish the offensively non-sexy breast from public view.

Again, each woman must make her own decision about the manner in which she wishes to nurse in public, if at all. Some women follow religious guidelines about display of the body in public; others may suspect that such a display may put their personal safety at risk; still others may be embedded in our country’s racist history in which some women’s bodies and reproductive capacities were used by others against their will. We must respect every woman’s capacity to decide what is best for her.

Policy basis

Public health policy and law, at least according to some authorities, seek not to badger people into behaviors that some privileged segment of the population thinks everyone should adopt, regardless of other priorities. Rather, their role is to move obstacles out of the way for the benefit of those people who wish to adopt practices that are widely held to be beneficial to the public health.

Breastfeeding is one of those practices. In order to make a path for people who wish to breastfeed their children in public, the bill gives a right and a remedy. The right is the liberty to breastfeed children in public any place the breastfeeding woman herself is entitled to be. Remedies (as already outlined in the Elliott-Larsen Act), should this right be denied, are the ability to seek a judicial injunction against the offending party, to pursue legal action through the state Civil Rights Commission, or to bring suit against the offending party in a civil suit.

What happens next and how to help

Now that S.B. 464 has passed the state Senate, its companion bill must also be given a committee hearing, receive a favorable vote, and be voted upon on the House floor. Should that happen, once the governor signs the bill, it will become law.

If you wish to support these bills and this cause, you can follow through with these actions:

  1. Thank Senator Rebekah Warren for sponsoring S.B. 464. I am very proud to be her constituent – thank you, Sen. Warren!
  2. Encourage the chair of the House Judiciary Committee, Rep. Kevin Cotter, to schedule a hearing on H.B. 4733.
  3. Especially if your representative is a member of the House Judiciary Committee, encourage him or her to support H.B. 4733. You can identify your representative here.

Finally, easiest of all, we can help mothers to breastfeed in public simply by speaking out on the spot. If someone asks a mother to cover up, or to leave, we can object. When I was a new mother nursing my first child in public, strangers would occasionally come up to me and murmur approvingly, “I nursed my child for three years, or “I nursed two children.” I can’t tell you how supported this made me feel! Now I try to carry on this tradition by telling women how nostalgic I feel when I see their beautiful little nurslings. But a simple smile and a nod also does the trick.

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