Guest Blogger Professor Deborah L. Forman: Labor and Delivery: A Spectator Sport?

As abortion clinics close in Texas and the Supreme Court ponders whether the contraceptive mandate in the ACA infringes the religious freedom of Hobby Lobby, women’s reproductive rights have come under attack from another quarter—unwed fathers.  Last Fall, Olympic-champion skier Bode Miller succeeded in wresting custody of his infant child from the mother after a New York magistrate determined Sarah McKenna had engaged in “misconduct” by daring to move to New York to complete her education while pregnant with Miller’s child.  Although the decision was subsequently overturned, the mother lost custody for several months.  More recently, a New Jersey man sued for the right to attend his child’s birth after the mother, his estranged ex-fiancée, objected to his request to be notified when she went into labor and barred him from the delivery room.  (Plotnick v. DeLuccia, N.J. Super. Ct. Ch. Div., No. FD-16-00008-14, 11/19/13, released 3/10/14.)

In a lengthy and well-reasoned opinion, the trial court rejected Steven Plotnick’s request for a temporary mandatory injunction compelling Rebecca Deluccia to inform him when she went into labor and allowing him to attend the birth.  The court rested its decision on federal and state constitutional and statutory grounds.  As the court aptly noted, the Supreme Court’s made clear in Planned Parenthood vs. Casey, even a married father’s interest must be subordinate to the mother’s when she exercises her right to make procreative choices regarding her pregnancy.  Although Casey acknowledged the husband’s “deep and proper concern” in the pregnancy and the well-being of the fetus, this concern could not support overruling the mother’s superior interest, as she alone experiences the “pain and anxiety” of pregnancy.   The trial court found further support in the broader New Jersey Constitution.

The court then turned to statutory barriers to the father’s asserted claims.  New Jersey precedent had already established that the New Jersey Hospital Patient Bill of Rights prohibits a hospital from disclosing names, addresses and admission of patients into the hospital. The court reasoned that as hospital admission was protected, so too must be the woman’s right to privacy in her hospital room.  Moreover, New Jersey common law recognizes a licensor-licensee relationship that preserves a patient’s right to privacy in her room.  Although noting that HIPAA might not provide the same protection, neither would it limit New Jersey’s ability to do so. 

Finally, in “balancing the hardships” of the parties, the court recognized that having an unwanted person in the delivery room could add to the mother’s stress, endangering both the mother and the fetus, particularly in this case, whether the mother appeared at the hearing telephonically from the hospital, due to complications with the pregnancy.  The court concluded that compelling the father’s presence in the delivery room would constitute an undue burden under the New Jersey Constitution.

While the pregnant woman won this battle, one wonders why she had to fight it at all.  Burdensome abortion restrictions, like those forcing a woman to undergo ultrasound without her consent, have set a precedent for depriving women of basic medical rights.  Given the current climate, it is disappointing, but no longer surprising, that a woman would have to defend her right to give birth without spectators. 

- Deborah L. Forman