For too long, pregnancy and its outcomes have been the basis for denying women equal rights.
This November, New Yorkers from Montauk Point on the east end of Long Island, to Dunkirk, the state’s westernmost city, will have the opportunity to vote on Proposal 1, New York’s inclusive Equal Rights Amendment. As Sasha Ahuia writing for Abortion Every Day recently explained: No one—not even New Yorkers—can count on having a right to an abortion. This is why, New Yorkers must vote yes on Prop 1 to “protect abortion permanently.”
Proposal 1, however, does far more than establish constitutional protection for abortion. It does what most other states’ ERAs and the abortion measures on the ballot in 10 other states do not: Prop 1 explicitly protects women who experience miscarriages and stillbirths, as well as those who carry their pregnancies to term and give birth.
How does Proposal 1 do this? By not only prohibiting sex-based discrimination, but also by closing the “pregnancy” loophole for denying women true equality. This includes ensuring that women and all people with the capacity for pregnancy have equal rights to make decisions about their bodies, to follow their religious beliefs, to travel, and to be free from unlawful government detention.
For too long, pregnancy and its outcomes—whether giving birth, experiencing a miscarriage, stillbirth or other pregnancy loss, or having an abortion—have all been the basis for denying women equal rights.
Historically, equality principles have been based on the idea of sameness. In other words, discrimination based on sex will be considered to be an equal rights violation only when women are similarly situated to or the same as men. But, because pregnancy is “unique,” (a word often used in relationship to pregnancy, even though half of all humans have the capacity for it and none of us would be here without it) actions taken against pregnant women often do not qualify as prohibited sex discrimination.
Thus, according to Supreme Court Justice Alito, denying women a right to abortion—a form of healthcare that half of all humans who have the capacity for pregnancy sometimes need—does not constitute a form of sex discrimination.
Similarly, according to Northwell Health, New York’s largest healthcare provider, a policy at their Staten Island University Hospital that authorized surgery without patient consent on one class of persons—pregnant women—was not sex discriminatory, nor a violation of any other law.
Consider Rinat Dray. In 2011, Dray was pregnant and determined to give birth vaginally if she could. Her two previous births were by cesarean surgery. Looking back, neither of these major surgeries seemed necessary to Dray, and her recovery from each was long and painful. Moreover, she had been advised that having a third such surgery could make future pregnancies exceedingly dangerous.
Despite having carefully chosen doctors she thought would respect her decision-making, she experienced the opposite. Doctors at Northwell Health’s Staten Island University Hospital neglected to tell her about a secret policy that purported to authorize them to perform major surgery without the pregnant woman’s consent. And that is precisely what they did.
Her doctor wrote in her medical records, “The woman has decisional capacity. I have decided to override her refusal to have a C-section.” Over her explicit and repeated objections, Northwell Health’s SIUH defied Dray’s wishes and violated her fundamental rights to bodily integrity and medical decision-making. In the process, they severely injured her bladder. The disrespect and denial of her dignity have also had lasting emotional harm. Dray is still trying to get justice from a legal system that has never treated people with the capacity for pregnancy as full and equal citizens.
And Dray is not alone. In other, earlier, New York cases, forced medical interventions—some on behalf of not-yet-viable fetuses—were carried out over women’s religious objections. In these cases, pregnancy was the excuse to deny one class of persons not only an equal right to bodily integrity and medical decision-making but also to the “free exercise and enjoyment” of their religious beliefs.” Proposal 1 will, for the first time, close the pregnancy loophole that has been used to deny pregnant patients equal rights to follow their religious beliefs.
Prop 1 will also ensure equality for all those who want to travel—even if they happen to be pregnant. In New York, husbands and putative fathers have tried to get state court judges to prohibit or penalize women because they traveled or planned to travel while pregnant. In one case, a lower court judge agreed that traveling across state lines while pregnant was tantamount to kidnapping a “child while in utero.” Prop 1 will provide clear constitutional direction to judges and legislators tempted to use pregnancy as a ground for limiting the right to travel.
Finally, women in New York State who have experienced miscarriages, stillbirths and pregnancy losses have been arrested and prosecuted for manslaughter. Women who have given birth to healthy babies have been arrested and prosecuted for endangering the welfare of a child because of something that they allegedly did while pregnant—such as drinking alcohol—that would not otherwise be treated as a crime.
Many New Yorkers are surprised that these kinds of cases have happened in our state. They often assume that such violations of a pregnant person’s rights would only occur in seemingly far-away places like Alabama and Mississippi. But they have not only happened on Staten Island, but also on Long Island, Glens Fall, Washington Heights and Bath to name just a few New York locales.
And while I am proud to be a New Yorker where these kinds of pregnancy-based violations of civil and human rights happen less often than in some other states (see Pregnancy Justice’s “The Rise of Pregnancy Criminalization“), make no mistake: They have and could happen again here as well. That is why voting Yes on Proposal 1 is so important. It is also a reason why jaded New Yorkers who may feel that their vote for president won’t make a difference in our electoral college system should be excited to go to the polls this November.
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