Family Law

#FreeBritneysUterus (And All Of Our Uteruses)

Spears may not technically be sterilized by her conservatorship. But to deny a woman’s ability to remove an IUD is essentially the same thing.

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(Photo by David Becker/Getty Images)

Unless you have been living in a cave, you’ve probably seen the latest news about Britney Spears. Scratch that. Even if you were living in a cave, you’ve probably had a visitor tell you the news of Britney Spears’s impassioned plea to a judge regarding her years-long conservatorship. At the most recent hearing, Britney herself spoke, describing some of the alleged abuses that she has suffered at the hands of her conservators. Those alleged abuses included a shocking description that she has been denied the ability to marry or to have an IUD removed in order to have more children. Can this be true? Is this still America?

A lawyer for Spears’s conservator has protested the idea that the conservatorship is to blame, responding that “if Britney wants any issue brought up to the Court, Ms. Montgomery [Spears’s personal conservator] is and has always been ready, willing, and able to do so.” Well that’s … not much of a denial at all. In fact, it only makes my fears worse that Spears’s reproductive decision-making has, indeed, been taken away by the government, and is in the hands of the conservator, as well as the court.

Sure, Spears has acted a little erratic at times. But so has everyone. Are any one of us at risk of having the government control whether we can marry or have children?

I spoke with constitutional and reproductive rights scholar Professor Jessica Waters of American University. Waters explained that the Spears case (assuming Spears’s reports are accurate) is upsetting, but not new. Our country has long struggled with the issue of reproductive rights when it comes to those whom society deems “unfit.” And that struggle continues in many aspects — and in alarming ways — to this day.

A Terrible History Continues.

Most of us are familiar with Buck v Bell, the 1927 decision by the Supreme Court upholding a Virginia forced sterilization law, with the infamous words of Justice Oliver Wendell Holmes, Jr. that “Three generations of imbeciles are enough.”  Carrie Buck, the woman at issue, was subjected to forced sterilization under the pretense of an appendectomy procedure, although modern-day reports — collected by Justice Thomas in his concurrence in Box v. Planned Parenthood — have indicated that Buck wasn’t actually feeble-minded, an “imbecile,” or disabled. This excellent Hidden Brain podcast episode also tells the story of the Buck family and how much of a tragedy this case really was.

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Buck v. Bell rejected the legal argument that the Virginia law violated the 14th Amendment to the United States Constitution and has never been directly overturned. Indeed, as Justice Thomas noted in his Box concurrence, Buck v. Bell lent significant energy and momentum to the movement, and 28 states adopted eugenics laws by 1931. However, in the 1970s, involuntarily sterilization laws generally went out of favor, and indirectly, other Supreme Court rulings undermined the Buck v. Bell decision. Key among them, in Skinner v Oklahoma the Supreme Court ruled that it was unconstitutional and a violation of the 14th Amendment for criminals to be subject to forced sterilization. There the court determined that strict scrutiny is appropriate when the state curtails the exercise of a fundamental right, such as the right to have children. Sounds right to me.

So we are all good now? Not exactly.

No Procreation Orders Are A Thing… Currently.

Professor Waters has long studied the regulation and case law pertaining to reproductive rights and found many a shocking decision. Waters pointed me to her Harvard Law Review article entitled “In Whose Best Interest? New Jersey Division of Youth and Family Services v V.M. and B.G. and the Next Wave of Court-Controlled Pregnancies.” There, she looked at the case of a college-educated 42-year-old woman in New Jersey who declined to consent to a recommended C-section during labor. A psychological evaluation performed on V.M. during labor found her competent to make her own reproductive decisions, and she ultimately gave birth vaginally, without incident, resulting in the birth of a healthy child. Despite this, a New Jersey court found V.M.’s “failure to cooperate with medical personnel” –- specifically her refusal to consent to a physician’s recommendation that she undergo a C-section –- as one of the grounds for an abuse and neglect of a child finding under New Jersey law! V.M. was not permitted to leave the hospital with her child, and the child was instead placed under the care and control of the New Jersey Division of Youth and Family Services.

Terrifying. And even more scary is the overview Waters provides of other current government actions directly controlling reproductive decision-making.

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Waters’s article explains how in the recent past, some states introduced legislation requiring a birth control implant for some women as a prerequisite for receiving public assistance. Further, “nonprocreation orders” are a reality even today, particularly in the context of a condition of probation. That means that if a person subject to probation with a nonprocreation order were to get pregnant or impregnate someone else, they would be in violation of their probation, and possibly subject to imprisonment.

This Isn’t Just About Britney

Spears may not technically be sterilized by her conservatorship. But to deny a woman’s ability to remove an IUD is essentially the same thing. Not only is Britney entitled to have a child on her own terms, but more broadly, the clock is ticking. As Spears approaches her 40th birthday this December, statistically, she is quickly nearing the end of her reproductive window.

Even if we were to all believe that Spears was suffering some form of mental illness (which nevertheless does not affect her ability to perform a killer live show), haven’t we reached the point where we all agree that this is wrong? The government should not be deciding who is fit to reproduce or not (eugenics!), or taking away individuals’ fundamental decision over reproduction.

Spears’s reproductive choices must be her own. Especially if we are to wish the same for the rest of. #FreeBritneysUterus #FreeAllOurUteruses

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

 

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