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).