NC NEWSLINE - Imagine putting a mother in jail because authorities determined that, over the course of her pregnancy, she should have exercised more, drank less coffee and taken more prenatal vitamins.
“Is the mother’s conduct going to be monitored like that because this is a living being now, at the moment of conception?” said Suzanne Reynolds, dean and professor emerita at Wake Forest University Law School.
Reynolds was referencing language from an opinion published last week by North Carolina Appeals Court Judge Hunter Murphy, a decision that terminated a mother’s parental rights for conduct during her pregnancy because “life begins at conception.” The case, In re: E.D-A., involved a mother convicted of felony child abuse of another child in the home. Because of that conviction, Muphy ruled that the mother should also lose parental rights of Opal, with whom the mother was pregnant at the time of the crime.
Authorities removed Opal from the mother’s care three days after she was born. Though the child’s grandmother was initially allowed supervised visits with the newborn, court documents indicate that Opal is in the custody of foster parents, who could ultimately adopt her.
Murphy could have terminated the mother’s rights without opining on when life begins. State law allows for the termination of parental rights if they have “willfully failed” to pay child support for six consecutive months before the filing of a petition, allegations that were a part of Opal’s mother’s case. In other words, Murphy could have reached the same result without mentioning when “life” begins.
“I think the leap and the stretch and the legal gymnastics that it took to include that is very pointed,” said Dawn Blagrove, an attorney and the executive director of Emancipate NC, a social justice organization that combats structural racism, including in the criminal justice system. “I think he went out of his way to do it.”
Murphy’s opinion is rooted in the idea of “personhood,” a concept championed by the anti-abortion movement to define a fetus as a person from the moment of conception.
“We have a case of judicial activism here, where rather than other entities like the legislature trying to enshrine personhood, we have judges doing this,” said Maxine Eichner, the Graham Kenan Distinguished Professor of Law at UNC-Chapel law school
Eichner said that personhood laws are most often enforced in criminal cases involving the actions of pregnant women. Prosecutors could use chemical endangerment statutes to go after pregnant women who take aspirin, Eichner said, or draw up manslaughter charges for women who miscarry.
That makes personhood even more broad — and controlling — than the abortion ban state legislators passed earlier this year.
“Abortion controls a specific procedure, and laws can limit that, but treating an egg that’s been fertilized as a full and complete person allows lots more control over pregnant women,” said Eichner.
Murphy’s ruling could also have profound impacts North Carolina’s child welfare system, legal experts told NC Newsline.
“It could wreak havoc in family law,” said Reynolds.
A dubious legal foundation
Murphy grounded his reasoning in a nearly 75-year-old North Carolina Supreme Court decision, Mackie v. Mackie, a decision that has only been cited eight times — including last week’s decision — since it was published in 1949, according to Westlaw, a research service for lawyers and legal professionals.
“Biologically speaking, the life of a human being begins at the moment of conception in the mother’s womb,” the court stated at the time.
But that quote dealt with laws involving inheritance. It explicitly states, “Ordinarily a different rule or definition is applied as to when life begins, in tort actions and in criminal statutes.”
Reynolds said the termination of parental rights has more in common with civil tort cases and criminal statutes than inheritance law, where the stakes of the proceedings are much lower.
“Losing the right of parenthood is a drastic loss of liberty akin to incarceration,” Reynolds said. “I would say it’s worse.”
Reynolds said it was presumptive for a Court of Appeals judge to issue such a “broad-brush ruling,” claiming Murphy “certainly overstepped his bounds as a member of the Court of Appeals who doesn’t create law that is different from a ruling that the Supreme Court of North Carolina has held.”
The decision raises serious questions about family law in North Carolina. For instance, Reynolds asked, are fathers going to have to pay child support from the moment of conception? What about custody battles over a fetus?
Despite the potential implications, Reynolds said she isn’t sure the precedent will be broadly cited without a decision from North Carolina’s highest court.
“That’s such a radical thing to do without guidance from the legislature or Supreme Court,” she said. “I hope very passionately that that line in the opinion is simply ignored, because it is a radical statement.”
But it is a published opinion, Blagrove said, which means it can be cited as precedent in future arguments in courts.
“This legitimizes this idea that life starts at birth, and it is the first step at codifying it and making it a part of the legal framework that exists,” Blagrove said. “Making this outlandish declaration that life begins at conception is now part of the law in North Carolina, and that is deeply concerning.”
The mother’s attorneys could appeal the case to the state Supreme Court and seek to make Murphy’s reasoning moot. But that would mean appealing to a conservative high court that might prove amenable to Murphy’s reasoning.
“Appealing to the state Supreme Court at this point is — quite frankly — for progressive issues it’s an exercise in futility,” said Blagrove.
Black parents more likely to have parental rights terminated
The decision will disproportionately affect Black and Latinx families. Across the nation, over half of all Black children experience an investigation by Child Protective Services, what experts call “a normative experience in the lives of Black children.”
Emancipate NC has published figures from the Durham County Department of Social Services, the agency that was involved with Opal’s mother’s case. In a nine-month window between 2021 and 2022, 587 Black children were involved in alleged neglect and abuse investigations, compared to 171 Latinx children and 157 white children.
“This ruling further opens up the door for an already exploitative system to further exploit poverty, racism and sexism that lives and breathes in the DSS system, and actively works against keeping Black and brown mothers unified with their children,” said Blagrove.
Research indicates Black parents are also more likely to have their parental rights terminated than their white counterparts.
“The underlying implication is that it is more important to preserve white families,” Blagrove said. “There is a predisposition to believe that white families and white mothers actually do love their children, and with a little help, they can just get it together. Whereas with Black and brown families the inclination is they are not capable.”
Particularly unsettling to Blagrove is the notion that Black and Latinx mothers can be deemed “unfit” parents before their children are even born.
“The fact that it’s in utero is even more disturbing because we know that babies who are yet to be born, it is much easier to steal those children, place them in new homes, and for those children to never know or have any memory of their birth mother,” Blagrove said. “For the mother to not have a chance to mother her own child, it’s barbaric, and likens itself back to the times of chattel slavery, when black mothers didn’t have a choice in how they loved and mothered their children.”