Fetal Rights

Fetal protection policies bar fertile women from specific jobs out of fear that those jobs may cause harm to any embryos or fetuses the women might be carrying. These policies came into widespread use by many companies during the 1970s and 1980s, before a 1991 U.S. Supreme Court decision, UAW v. Johnson Controls, 499U.S. 187, 111 S. Ct. 1196, 113 L. Ed. 2d 158, declared them a form of sexual discrimination that violates Title VII of the CIVIL RIGHTS ACT OF 1964 (42 U.S.C.A. § 2000e et seq. [1982]). Despite the Court's decision in Johnson Controls, those critical of fetal protection policies feared that the policies would be continued in more subtle forms.

Johnson Controls grew out of a fetal protection policy created in 1982 by Johnson Controls, an automobile battery manufacturer. The company's policy excluded pregnant women and women capable of bearing children from battery manufacturing jobs. The company maintained that the jobs in its manufacturing plant exposed women to levels of lead that might harm any embryo or fetus they might be carrying.

In 1984, a group of Johnson Controls employees, together with their LABOR UNION, the United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), filed a CLASS ACTION suit in federal court challenging the company's policy. They charged that the policy constituted SEX DISCRIMINATION in violation of federal civil rights law.

In the final ruling on the case, the U.S. Supreme Court held that fetal protection policies unfairly discriminate against women because they do not demand that men make a similar choice regarding the preservation of their reproductive health in a potentially hazardous workplace.

Companies that have created fetal protection policies argue that they are necessary to protect their employees. Critics of fetal protection policies maintain that they effectively exclude all women aged 15 to 50 from well-paying jobs unless the women can prove they have been sterilized. They also contend that such policies raise privacy questions because they often require women to provide proof that they cannot have children in order to take specific jobs. Critics also point to instances in which women have undergone sterilization procedures because they faced the loss of high-paying jobs. Other critics argue that male reproductive organs may also be affected by hazardous substances in such a way that a fetus might be harmed. Nevertheless, no company has created similar policies for men.

FOURTH AMENDMENT SEARCH AND SEIZURE cases can also touch on fetal rights. In Fergusonv. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d. 205 (2001), the Supreme Court ruled on a case concerning nonconsensual drug testing of pregnant women. In Ferguson the state argued that the drug testing was performed as a measure to help protect unborn fetuses and that these searches fell under the "special needs" exception to the Fourth Amendment. Cases recognizing the exception have employed a BALANCING test weighing the harm caused by the warrantless intrusion on the individual's privacy interest against the "special needs" that supported the intrusion. The court held that the South Carolina state hospital's drug testing of pregnant patients to obtain evidence for law enforcement purposes does in fact violate the Fourth Amendment. The majority rejected the state's argument that testing fell within the "special needs" exception to the Fourth Amendment. The court said the state's interest in using the threat of criminal sanctions to deter pregnant women from using drugs does not justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant. The court further held that the drug tests, conducted by the Medical University of South Carolina, constituted an unreasonable search if the patient had not consented to the procedure.