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Abortion: Arkansas Law Hopes to Protect Father’s Rights

A new Arkansas law that will go into effect later this year will allow a husband to sue a doctor in order to stop his wife from getting an abortion. Known as the Arkansas Unborn Child Protection from Dismemberment Abortion Act, or “Act 45”, it prohibits a particular type of abortion known as “dismemberment abortion.” The law provides no exemption for spousal rape.

Historically, Father’s Rights were to Prevent Abortions

abortionFathers historically have no legal rights with regard to their wife or the mother of their child choosing to have an abortion. If a man’s pregnant partner chooses to have an abortion, the father’s consent is not a legal requirement. A woman can choose to abort the pregnancy despite the father’s objections. In fact, the Supreme Court in Planned Parenthood v. Danforth ruled that laws requiring a spouse’s consent to be unconstitutional. The court reasoned that only one partner’s decision on abortion can prevail, and that the balance weighed in the woman’s favor.

Moreover, the Supreme Court concluded in Planned Parenthood v. Casey that the father does not have a legal right to be notified of an abortion. Most women discuss an abortion with their significant other, but those who do not may be in an abusive relationship. Therefore, requiring spousal notification places an undue burden on women who may fear for their safety.

What Kind of Abortion Does the Arkansas Law Stop?

Arkansas Act 45 prohibits a practice known as dilation and evacuation, also known as dismemberment abortion, in which fetal materials are removed from the womb through surgical instruments. It is the safest and most common method of abortion in the second trimester and is used in 95 percent of second-trimester abortions. It occurs after 12 to 14 weeks of pregnancy.

How Will the Arkansas Law Work?

Under the new Arkansas law, a father can sue a doctor to stop an abortion if the wife is in her second trimester and having a dilation and evacuation procedure. This means that the wife is over 12 weeks pregnant. What is controversial about the law is that it allows the father to stop an abortion even if he raped his wife.

Is the Arkansas Law Constitutional?

The American Civil Liberties Union (“ACLU”) of Arkansas argues that it is not. They intend to challenge the new state law as soon as practically possible.

The ACLU argues that the law not only bans what’s considered the safest and most common method of second trimester abortions, but it also does not make any exception for victims of spousal rape. This means that a wife’s rapist husband could sue to prevent an abortion.

Under Roe v. Wade, the Supreme Court established that it is a woman’s right to have an abortion until approximately 22 weeks of pregnancy or when the fetus is considered viable outside the womb. The new law puts a limitation on the woman’s ability to abort before viability, even though it is a guaranteed right. For this reason, it should not be considered constitutional.

Additional Concerns about the Law

While the Arkansas law affords the father more rights, it also strips away rights that have historically been given to the woman. The ACLU is concerned that with the limitation on dilation and extraction abortions, women may opt to use a procedure that is less safe. Such a procedure can put both the unborn fetus and the woman’s life at risk.

Can a Miscarriage Be a Wrongful Death Claim?

A recent decision from the Alabama Supreme Court allows a woman to proceed forward with a wrongful death suit against her obstetrician after suffering a miscarriage.  While the decision has rocked a few boats, the Court only affirmed existing laws that allow a person to sue for the wrongful death of an unborn child.

Miscarriage Wrongful DeathLet’s Check the Facts

Two days after finding out she was pregnant, Kimberly Stinnett experienced abdominal cramping and fever.  After an evaluation that included ultrasound, an obstetrician determined that Stinnett, based on the findings from the evaluation and Stinnett’s prior medical history, was experiencing an ectopic pregnancy.  An ectopic pregnancy occurs when a fertilized egg attaches itself in a place other than inside the uterus, which makes it impossible for a fetus to develop.

The obstetrician performed a dilation and curettage, commonly referred to as a “D&C”, which is a surgical procedure used to determine whether a pregnancy is intrauterine (within the uterus) or ectopic. Stinnett testified that the obstetrician told her, as a result of that surgical procedure, the pregnancy wasn’t ectopic, but that she believed a miscarriage had taken place.  The obstetrician, however, testified that she still had a strong suspicion that the pregnancy was ectopic and therefore ordered a drug commonly used to treat ectopic pregnancy.  The drug is intended to cause the end of pregnancy and was administered to Stinnett.

Stinnett attended a follow up appointment, in which she saw her original doctor.  A follow-up ultrasound showed that Stinnett was having a failing intrauterine pregnancy, possibly as a result of the drug the previous obstetrician had given her.  Several weeks later, Stinnett suffered a miscarriage.

Stinnett brought suit against the obstetrician and claimed:

  • Medical negligence for performing the D&C and administering the drug,
  • That because her pregnancy was not ectopic, the D&C should not have been performed nor should the drug should have been administered, and
  • That the obstetrician’s actions violated the applicable standards of care and proximately caused the loss of her baby.

In addition to her medical malpractice claims, Stinnett claimed wrongful death of her unborn fetus under Alabama’s wrongful death of a minor statute.  The personal injury claims stemming from the medical malpractice suit were allowed to go forward, but the lower court dismissed the wrongful death portion of the suit.  Stinnett appealed.

Why Did the Alabama Supreme Court Allow the Wrongful Death Claim to Move Forward?

Among other arguments, the obstetrician’s main argument rested on the idea that the wrongful death of a minor statute didn’t apply to her due to an exemption within another Alabama statute limiting criminal liability for licensed physicians who, through mistake or unintentional error, caused the death of a previable fetus.  The argument rested on the idea that if criminal liability was exempted, so too should civil liability.

The lower court agreed, but the Alabama Supreme Court ruled otherwise, stating, “[I]t simply does not follow that a person not subject to criminal punishment under the Homicide Act should not face tort liability under the Wrongful Death Act”.  The high court found doing so would, essentially, defeat the purpose (to prevent homicides) of allowing wrongful-death claims based on negligence in the first place.

The court remanded the wrongful death claim back down to the lower court, which means Stinnett has a chance to argue it in front of a jury.

Will She Win?

This case can appear a bit convoluted because it involves both wrongful death, as well as medical malpractice, but they essentially coincide with each other.  Wrongful death suits are brought when a person dies due to the negligence or misconduct of another.  In order to bring a successful wrongful death cause of action, Stinnett will need to prove:

  • The death of a human being,
  • Was caused by the obstetrician’s negligence (or intent to cause harm), and
  • That Stinnett is suffering monetary injury as a result of the death of her fetus (think losing future income from a spouse).

Alabama law allows wrongful death suits on behalf of previable fetuses, so Stinnett will have no problem proving the first element; it’s the other two elements that will be harder to prove.

Medical malpractice is one circumstance a plaintiff can use to prove a wrongful death claim.  If Stinnett can prove that the obstetrician acted negligently in a way that another competent obstetrician in similar circumstances would not have acted, then she’d have a good argument for medical malpractice.

Remember when I said Stinnett filed suit for medical negligence and wrongful death?  Even though the wrongful death suit was originally dismissed, the personal injury claims proceeded forward and a jury found in favor of the obstetrician.  What does that mean?  That the doctor wasn’t liable, which implies she followed the appropriate standard of care.  If that’s the case, then Stinnett won’t have much luck proving a wrongful death claim.

The Alabama Supreme Court noted in their decision that it wasn’t clear whether the jury’s decision rested on the obstetrician’s standard of care or whether it rested on the theory that Stinnett didn’t suffer any damages.  For those reasons, Stinnett has the option to proceed forward and, if she chooses to, she’ll need to prove both negligence with respect to the standard of care and that she suffered monetary injury.

Eggs Benedict Arnold: Sofia Vegara Sued by Her Own Frozen Embryos

Modern Family star Sofia Vegara has been involved in a nightmare of a lawsuit over custody of frozen embryos since 2013, with the lawsuit originally brought in California by Ms. Vegara’s ex-fiance Nick Loeb. In a bizarre twist on the case, earlier this month Loeb brought a right-to-live lawsuit on the same grounds as his California lawsuit in Louisiana. However, the real bizarre twist is that it isn’t Loeb who’s bringing the lawsuit.  Instead, in a first of its kind case, the lawsuit is being brought with the frozen embryos themselves as plaintiffs.  An embryo is, despite the pun in the title, distinct from an egg in that it has been fertilized.

Loeb has decided to name the embryos Emma and Isabella for purposes of their lawsuit.  The suit claims that the embryos are seeking “the right to be transferred to a uterus so they can be born and claim an inheritance” and asks the court to force Vegara to sell custody of the embryos to Loeb. It also, probably not coincidentally, came barely a week before a judge in California ruled on a motion for summary judgment and to sanction Mr. Loeb in a nearly identical case—motions that led Loeb to outright drop his case in California.

It’s also no coincidence that Loeb has chosen Louisiana to plead his case the second time.  Louisiana is the only state in the country that actually has a statute naming embryos “juridical persons.”  Without this statute, Loeb couldn’t pull the stunt he has—having the frozen embryos themselves bring the lawsuit.

Louisiana Law on Frozen Embryos

Louisiana is, without a doubt, among the most harshly restrictive states when it comes to reproductive rights and abortion.  This is probably obvious from the fact that they’re the only state in the nation where Loeb could have brought a lawsuit with embryos as plaintiffs.

Louisiana Health Law goes further than any other state on the issue of frozen embryos—making them juridical persons.  Hearing this, you’re probably asking yourself—“what the heck is a juridical person?”  Basically, a juridical person is any entity other than a natural person that is recognized as a distinct legal entity with its own rights and duties.  It commonly comes up in the context of corporations but Louisiana has extended the concept to frozen embryos, thus allowing them to sue on their own behalf—or even more strangely be sued by others.

Louisiana law doesn’t stop there, these same laws forbid the destruction of frozen embryos and require donors to instead put their embryos up for a sort of “uterus adoption” where the donors renounce their rights in favor of “another married couple.”  So basically, the only option is to renounce rights, and allow another to act as a surrogate to the frozen embryos.  However, “another married couple” is not there for no reason.  The statute only allows married couples to implant the frozen embryos after donors give up their rights to them.

sofia vegara embryos

Perhaps most relevant, if one of the donors implants an embryo and that embryo develops into a child—that child is born with inheritance rights to both donors—in this case Vegara and Loeb.

These rights for frozen embryos in Louisiana—far beyond anywhere else in the nation—have allowed Loeb to bring his lawsuit.  However, like his lawsuit in California, it is not the laws on reproductive rights that are likely to decide the day in court but rather simple contract law.

Who Gets to Decide? Agreements When Freezing a Fertilized Embryo

As you might imagine, deciding to fertilize and freeze an embryo with another person is a huge commitment.  Like any huge commitment, it is one that should be—and usually is—entered into with extreme care and well understood agreements as to how the process will proceed.  Thus, when a couple chooses to freeze a fertilized embryo, there is nearly always a contract which details how and when the embryos may be brought to term.  For example, these contracts usually state whether there needs to be consent from one or both of the donors before an embryo may be brought to term.

Loeb and Vegara are no exception to this general rule and signed an agreement which states that the frozen embryos may only be brought to term with the consent of both of them.  Loeb has argued in California, and certainly will in Louisiana, that the agreement did not address a situation where the two separated.  However, regardless of the scope of the contract, the existence of such a contract means that it will be the first—and potentially last—thing that a court will address in deciding this case.  If the contract is valid then Loeb is bound to its terms and simply cannot demand that the embryos be brought to term without Vegara’s consent.

With this in mind, it’s no surprise that Loeb’s new lawsuit targets the validity of the contract.  Besides the argument to the scope of the contract which failed in California, Loeb has additionally argued that the agreement should be void because it violates Louisiana law.

If there is anywhere that a judge might decide that Loeb’s argument has merit and set aside the contract that has already lost him his case previously, Louisiana is that place.  This case has the potential to set precedent as one of the first cases to deal with the interaction of Louisiana’s reproductive rights law and the enforceability of a contract.

Protecting Your Reproductive Rights

Louisiana, as mentioned already, is the only place in the country to limit a woman’s reproductive rights so substantially when it comes to frozen embryos.  However, this case does serve to highlight the importance of a carefully crafted agreement if you and your partner are considering freezing an embryo.  Generally, a simpler way to go about things is to freeze eggs rather than embryos.  Where eggs are frozen as opposed to fertilized embryos the woman who provided those eggs has full autonomy over what she wants to do with them.  That way, a woman can avoid the stress of a situation like Ms. Vegara’s.

Michigan Man Takes Steps for the Right to Care for His Family

When a family member or loved one is sick and in pain, the first reaction of many is to drop everything and take care of them. This was certainly the case for Curtis Brown. When his wife was scared to go to the hospital alone to have a lump on her elbow examined, he took steps to ensure he could be there for her in her time of need. He went early to his job making paper and cardboard at mill owned by Rock-Tenn in order to complete his work in time to go to the hospital with his wife.

This was not the first time he had done something like this, Mr. Brown had been taking intermittent leave for years in order to take care of his wife due to recurrent episodes of distress and confusion coupled with chronic gastrointestinal issues. However, this was the last time Mr. Brown took such leave—at least with Rock-Tenn. When he went to leave, his employer demanded that he stay for the remainder of his appointed shift. Mr. Brown refused and was ultimately fired for insubordination.

Looking at this initially, your first reaction may be that Mr. Brown was in a tough situation but you have to work the shifts assigned to you.  However, federal law may offer Mr. Brown the protections to take work off to be with his wife. Thus, Mr. Brown brought a lawsuit against his former employer alleging violations of his rights under the Family and Medical Leave Act (FMLA)—a 1993 Act which requires certain employers to provide their employees with a certain amount of unpaid leave to take care of family members.

How Does the FMLA Work?

The FMLA requires employers to offer their employees at least 12 weeks of unpaid leave every year to take care of a family member. However, like all things in law, it’s not quite so simple as this.  The FMLA doesn’t apply to every employer, every employee, or even every illness.

In order to protect smaller employers from being overburdened by the requirements of the Act, the FMLA only applies to employers with more than 50 employees at a single location. Where this is the case, the employer must extend the family medical leave actprotections of the FMLA to all their workers who are employed within 75 miles of the place they have 50 or more workers.

Even if an employer has enough employees to be held to the requirements of the FMLA, an employee has to fulfill certain conditions before the employer must allow them FMLA leave.  Only employees who have worked for at least a year and at least about 25 hours per week for the last year qualify for the leave. What’s more, employees in the top 10% of pay within the 75-mile radius the employer covers are exempted from required coverage under the FMLA. There are also a few other exceptions to the Act such as elected officials.

Once all these ducks are in a row, and an employee is due protection under the FMLA, the question becomes what sort of situations require an employer to grant a request for unpaid FMLA leave. The FMLA requires leave for a number of things. However, the primary situations where it comes up are where an employee needs to care for a newly born, adopted, or fostered child, issues arising out of a family member’s military deployment, or to care for a family member’s—or recover from your own—serious illness.

As you might expect from a statute, the term serious illness is not left up to common sense interpretation. Instead, it is specifically defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.”  This means that you can’t get leave for check-ups and other routine medical care or for illnesses that come and go quickly like a common chest cold.

How Do You Ensure Your Rights Under the FMLA?

Even once you qualify for leave, you can’t just take it whenever you want, you have to ask your employer first. However, where the leave is qualified under the Act the employer has to grant it. Before taking leave it’s important that an employee notify their employer that they’re going to be taking FMLA leave and explain why, when, how often, and provide a doctor’s note or similar thing if your employer requires it. It’s also important to let your employer know if anything changes and, above all, that you plan to come back to work after your leave is over. When you can see the need for leave coming, the Act requires an employee to give this notice at least 30 days before they actually take leave.

Once you’re actually approved for leave, an employer can require you to use your paid leave—such as sick days—before starting in of your guaranteed 12 weeks per year of unpaid FMLA leave. However, once you’re on leave you have a number of legal protections that an employer must abide by. An employee must get the same health benefits they would get as if they were not on leave—although the employer is not required continue to provide life or disability benefits. When you return, your employer must reinstate all benefits and pay as well as give you back your old—or a comparable—position.

Where an employer takes action against an employee because they exercise their rights under the FMLA that can give rise to a retaliation claim against the employer. The Act also allows for employees to sue an employer for interfering with any of their rights under the FMLA in a type of lawsuit aptly named an interference suit.

State by State Differences

While the FMLA provides a minimum bar for protection across the country, many state have passed laws to expand the protection an employee would otherwise receive under the FMLA.

For example, Maine, Maryland, Minnesota, Oregon, Rhode Island, Vermont, Washington, and DC have all reduced the number of employees needed before an employer is required to provide employees the protections of the FMLA.  California, Connecticut, Hawaii, Maryland, New Jersey, Oregon, Rhode Island, Vermont, Wisconsin and DC have expanded the definition of a family member for FMLA protections within their states—primarily to include siblings, civil unions, domestic partners, same-sex partners, and in-laws.  In an even more substantial move California, New Jersey, Rhode Island, and New York all have passed laws requiring paid FMLA leave.

This is just a few of the state to state changes, there are several states which require employers to provide even more than the 12 weeks of leave necessitated by the FMLA. There are even a few states that have expanded the situations where you can take leave to include things like going to your kid’s school events.

Mr. Brown’s FMLA Case

Mr. Brown’s lawsuit started all the way back in 2013 and included both retaliation and interference claims under the FMLA. Just about a month ago, it finally moved past the summary judgment phase with a judge ruling in favor of Mr. Brown—allowing the case to be seen by a jury.

Rock-Tenn had long been arguing that the elbow “bump” Mr. Brown’s wife complained of was not a health condition covered by the FMLA because it did not involve “continuing treatment.” They also challenged the seriousness of the elbow bump as an injury. The court bought neither argument. Ms. Brown had seen a doctor several times for her elbow problems and ultimately the medical issue Mr. Brown was leaving for was providing emotional support due to ongoing anxiety issues. This was the actual cause behind his request for FMLA leave.

Mr. Brown’s case is far from over, but he will have his day in court. The idea that an employee could be put in a position where they have to choose between their family’s health and their job is a hard pill to swallow. That is why FMLA rights exist. Knowing your rights as an employee and your duties as an employer can help avoid the heartbreak of such a choice—or of a costly lawsuit.

Judges Don’t Really Want to Decide Your Divorce Case for You

Deciding to go down the path of divorce isn’t something couples plan for and, once it happens, it isn’t an easy process. One common misconception is that your divorce case will automatically be decided for you.  Unfortunately, most couples find, instead, it can be a long grueling process of negotiation between sides.

Many courts require mediation because judges don’t really want to decide your case for you—they’d much rather a couple come to their own terms. If you can’t come to a mutual agreement on your own or with the help of attorneys, a judge will of course make the decisions for you. However, it may be less than what you were hoping for.

What Can Judges Decide?

A court can make a ruling about most anything asked of it in a divorce case. Although not strictly limited to, below are the most typical issues a court will see in a divorce case.

  • Dividing Property. This can be marital property or individually owned property and the outcome ultimately depends on state law.
    • Dividing Debts. This can be anything from loans, credit cards, and any outstanding bills—marital or individual.
    • Assigning Assets. This goes hand in hand with dividing debts and, again, depends on state law. This can be money contained in bank accounts, houses, vehicles, retirement accounts, personal property, or any other item that has value.
  • Child Custody Issues. Easily one of the most heated and controversial issues surrounding divorce cases. Joint, shared, or sole custody decisions will be made according to law if a couple can’t come to a decision on their own regarding a parenting plan.
    • Child Support Issues. Which parent will be the primary custodian?
  • Granting Alimony. Not every state allows room for a judge to grant alimony. For those that do, some have strict guidelines while others give judges great leeway.
  • Granting Protective Orders. This isn’t an extremely common issue, but it does come up when one spouse feels threatened by the other.

How Will Decisions Be Made?

Of course, decisions may not always seem fair and there’s no single outcome set in stone. Judges will make these difficult decisions based on the specific facts of each case based on the laws and precedent of the state.

Since the issues involved are extremely personal, especially when it comes to parenting decisions, most courts prefer to stay out of it and let the couple negotiate on their own. A good strategy?  Negotiate outside of court.  Go to mediation.  Ask for what you want and expect to meet somewhere in the middle.  Leaving it up to a court could leave you with a bare-boned outcome based on legal minimums that may not always seem fair.