Proper Protection

ON MARCH 20, the United States Supreme Court ruled unanimously that employers may not exclude fertile women from hazardous jobs because of potential damage to their potential fetuses.

The Court's 9-0 decision in UAW v. Johnson Controls killed a new breed of sex discrimination based on the age-old idea that women's special responsibility to future generations justifies limiting their employment opportunities. So-called "fetal protection policies" might have applied in more than two million jobs had they remained legal, according to the Department of Labor.

The decision strongly asserted women's right to make choices about how to run their own lives. As Justice Blackmun wrote for the majority, "It is no more appropriate for the courts than it is for individual employers to decide whether a woman's reproductive role is more important to herself and her family than her economic role."

However, the debate surrounding fetal protection policies has by no means ended with this decision. Not only are the government, employers and workers left with the question of how to clean up workplace hazards and eliminate current reproductive risks for both men and women, but the Court's ruling effectively side-stepped the explosive ideological issue of "fetal rights" underlying fetal protection policies.

THE fetal rights controversy has developed over the past decade as an offshoot of the continuing effort to illegalize abortion. Anti-abortion advocates recognized that if a fetus was granted the same rights under the law as a born human being, abortion would begin to look more and more like murder in the eyes of the law.

As a result, cases seeking to establish a broad range of fetal legal rights have grown increasingly common. The most prominent of these cases have involved arrests of pregnant women addicted to drugs and court-ordered caesarean sections.

In more than 50 cases around the nation, pregnant, drug-addicted women have been arrested and charged with "delivering drugs to a minor" or "child abuse." And in at least 12 cases, women have been forced to undergo caesarean section deliveries against their wishes, purportedly to save their babies' lives.

Although the issues of abortion and fetal rights are still intimately connected, the fetal rights debate has recently become a burning issue in its own right. There are even some pro-choice advocates who support fetal rights, arguing that once a woman has chosen to carry a fetus to term she has every responsibility to ensure a healthy birth. This responsibility could include eating well, giving up drinking and smoking, quitting work, staying in bed for months or even aborting a deformed fetus.

A fetal rights ideology assumes that women and their fetuses have separate--and often opposing--interests during pregnancy. And by restricting women's employment long before pregnancy, fetal protection policies like Johnson Controls' assume that women's rights are subordinate to the rights of unplanned, unconceived, potentially nonexistent fetuses.

ACTIVISTS on both sides of the debate had hoped the Court would use UAW v. Johnson Controls to offer a general opinion about fetal rights.

In fact, the Court judges pregnancy-related "rights" only once in this ruling. The majority opinion, signed by Justices O'Connor and Souter among others, veers surprisingly close to an implicit support of a woman's right to choose whether or not to bear a fetus to term.

Near the end of this opinion Blackmun writes, "Decisions about the welfare of future children must be left to the parents who conceive, bear, support and raise them rather than to the employers who hire these parents."

Even this statement is hardly conclusive commentary on abortion or the fetal rights debate, but it is all that the Court offers in this decision. And in UAW v. Johnson Controls, the Court specifically refuses to view all women as always potentially pregnant.

UAW v. Johnson Controls will not be the Court's last word on fetal rights. In future cases, the justices should continue to support women's right to self-determination, understanding that pregnancy is not a fight between a fetus and its mother.

Meanwhile, the fetal rights debate will continue to be fought out in the lower courts, in hospitals, in the media and in women's bodies.

The Court realized that fetal protection policies encroach upon women's constitutional rights.