The Reproductive Rights Case the Supreme Court Decided *Not* to Decide

By Dov Fox

The landmark abortion decision in Whole Woman’s Health v. Hellerstedt eclipsed quieter reproductive rights news out of the Supreme Court at the end of its term. It involves a couple’s claim that the Tennessee Supreme Court violated their equal protection rights by refusing to recognize “disruption of family planning as either an independent cause of action or element of damages.” You won’t have heard about this case. It wasn’t a merits judgment, but a decision not to decide. The Court’s denial of certiorari in Rye v. Women’s Care Center of Memphis has gone all but unremarked. It shouldn’t. This post lays out the arguments and why the Court (most likely) declined to hear it on appeal (without explaining its decision, as standard for cert denials). My updated article out in next year’s Columbia Law Review elaborates on the significance of professional wrongdoing that imposes, deprives, and confounds procreation in the face of people’s best efforts to plan a family.

The dispute arose during Michelle Rye’s third pregnancy. Rye has Rh negative blood, meaning that she produces antibodies that attack the blood cells of a Rh-positive fetus, potentially leading to serious harm in a born child. Doctors nowadays easily prevent this Rh-sensitization by injecting the pregnant woman with a compound called RhoGAM. But Rye’s doctor didn’t give her that injection. Now the couple couldn’t have more children of their own without risking serious health problems. Their Catholic faith took fetal testing and abortion off the table. They couldn’t even use birth control to prevent a risky pregnancy. Rye and her husband sued the doctor (who admitted negligence) for disrupting their family plans. Tennessee courts, all the way up to the state’s Supreme Court, rejected their claim. The courts held that the couple had not suffered the kind of injury that would support a legal cause of action. The Ryes’ petition to the U.S Supreme Court argued that the state Court’s refusal to recognize their claim denied them equal protection under the law.

Like most states, Tennessee let plaintiffs recover when medical negligence causes or fails to detect anomalies on which basis they would have wanted to avoid conceiving or giving birth. But it refuses such recovery when otherwise similar malpractice prevents them from having the children they want. The Ryes argued that these different ways in which the law treats those two groups is arbitrary. ‘‘In both situations, the right of the family to choose its own path regarding reproduction has been disturbed.’’ The state is without rational basis, they argued, to ‘‘provide more protection to those who choose to avoid having children, and less (or none) to those who would choose life as the exercise of a fundamental right?” Refusal to recognize claims for wrongful deprivation treats them unequal to those to whom the law affords a basis to remedy procreation imposed. That’s the Fourteenth Amendment argument the couple made in their unsuccessful petition for certiorari to the U.S. Supreme Court.

The Justices may have refused to hear the case just because there isn’t any disagreement among state supreme court decisions on this question of federal law. Indeed, it is a novel one that hasn’t been directly answered by any court in this country. But the equal protection argument is weak on its merits. The Ryes would need to show that state action treated them differently than similar situated others. Jurisdictions are divided as to whether the refusal to recognize a cause of action constitutes state action. But it is certainly plausibly that it does. The tougher challenge for the equal protection argument is that American law hasn’t so far treated the avoidance of procreation on a par with its pursuit. The Hellerstedt decision this week reaffirmed the fundamental constitutional status of the right to end a pregnancy through access to abortion. Our law recognizes no similar right to create a child through surrogacy, donor insemination, or in vitro fertilization.

John Robertson’s Children of Choice famously makes the case that it should. Robertson recognizes that the most solicitude the Court has conferred on the pursuit of procreation comes in its 1942 Skinner decision striking down on equal protection grounds Oklahoma’s compelled sterilization for larceny but not embezzlement. That decision didn’t, however, make family planning a fundamental right on a par with abortion or birth control. This constitutional landscape of reproductive rights suggests (though it doesn’t establish) a rational basis to treat the avoidance of procreation as different–more important, its denial more serious–from its pursuit. While the Constitution doesn’t require states to recognize claims like the Ryes’, I argue that they should remedy such reproductive negligence.

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About Dov Fox

Dov Fox is Professor of Law and founding Faculty Director of the Center for Health Law Policy and Bioethics at the University of San Diego School of Law. He has published dozens of articles in leading journals of law and medical ethics, most recently “Reproductive Negligence” in 117 Columbia Law Review 149 (2017). His current book project, Birth Rights and Wrongs, is under contract with Oxford University Press. His work has been featured in CNN, ABC, NPR, BBC, Reuter’s, Bloomberg, the Boston Globe, and the Washington Post. Fox is a regular columnist for The Huffington Post and contributor to the Bill of Health blog. He also serves on the advisory boards of the American Constitution Society and Appellate Defenders, the non-profit law firm that administers all appointed counsel for indigent defendants in California's Fourth Appellate District. Prior to teaching, Fox served as a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He has also worked at the law firm of Wachtell, Lipton, Rosen & Katz; the consulting firm of McKinsey & Company; and the Civil Appellate Staff at the U.S. Department of Justice. Fox was awarded a Rhodes Scholarship to attend Oxford University, where he earned his DPhil and then received a Soros Fellowship for New Americans to attend Yale Law School, where he served as projects editor for the Yale Law Journal and all three years was awarded the prize for best student paper in law and the sciences.