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CASE NO. 11-6031
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
___________________________________________
JUANA VILLEGAS,
Plaintiff/Appellee,
v.
METROPOLITAN GOVERNMENT OF DAVIDSON COUNTY
/ NASHVILLE DAVIDSON COUNTY SHERIFFS OFFICE,
Defendant/Appellant__________________________________________
On Appeal from the United States District Court for the
Middle District of Tennessee
(No. 09-00219)
__________________________________________
BRIEF OF AMICI CURIAE
PROFESSORS OF CATHOLIC AND EVANGELICALMORAL THEOLOGY
IN SUPPORT OF PLAINTIFF/APPELLEE
JUANA VILLEGAS URGING AFFIRMANCE
__________________________________________
Eric Schnapper
Maureen Howard
Rebecca S. Jones
603 Pontius Ave North
SCHOOL OF LAW
UNIVERSITY OF
WASHINGTON
PO Box 353020
Seattle, WA 98195
Telephone: (206) 616-3167
Facsimile: (206) 685-4469
Email: [email protected]
Seattle, WA 98109
Telephone: (425) 830-6211Email: [email protected]
Attorneys for Amici Curiae
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CORPORATE DISCLOSURE STATEMENT
Sixth Circuit Rule 26.1 is inapplicable to amici because they areindividuals.
Dated: May 9, 2012 /s/ Eric Schnapper
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RULE 29(c)(5) STATEMENT
No partys counsel authored this brief in whole or in part. No
party or partys counsel contributed money that was intended to
fund preparing or submitting this brief. No person, other thanamici or their counsel, contributed money that was intended to
fund preparing or submitting this brief.
Dated: May 9, 2012 /s/ Eric Schnapper
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TABLE OF CONTENTS
RULE 29(c)(5) STATEMENT...................................................... iii
TABLE OF AUTHORITIES .......................................................... vSTATEMENT OF INTEREST OF AMICI CURIAE.................. 1IDENTITY OF AMICI CURIAE ................................................... 2SUMMARY OF ARGUMENT........................................................ 4
ARGUMENT.................................................................................... 7I. RESPECT AND PROTECTION FOR BIRTHING MOTHERS
IS A CORE SOCIETAL VALUE ................................................... 7A. Pregnancy and Childbirth Have Long Been Revered by All
Human Societies ......................................................................... 7B. Faith-Based Standards of Decency Inform the Meaning of
the Cruel and Unusual Punishments Clause.......................... 12II. ABUSE OF BIRTHING MOTHERS WHILE IN CUSTODY
CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT..... 15
A. Wanton Infliction of Pain................................................... 16B. Bodily and Spiritual Privacy ............................................. 29C. Dignity and Humiliation.................................................... 33
III. THE SCOPE OF THE CRUEL AND UNUSUAL
PUNISHMENTS FORBIDDEN BY THE EIGHTH
AMENDMENT DOES NOT VARY WITH AN INDIVIDUAL'S
IMMIGRATION STATUS ........................................................... 37CONCLUSION .............................................................................. 39
CERTIFICATE OF COMPLIANCE WITH RULE 37(a)(7)(c)40CERTIFICATE OF SERVICE .................................................... 41
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TABLE OF AUTHORITIES
CasesBell v. Wolfish, 441 U.S. 520 (1979). ........................................ 15, 38
Black v. Toys R U.S. Delaware, 2010 WL 4702344
(S.D. Tex. Nov. 10, 2010) ............................................................. 21
Blackstone, Commentaries on the Laws of England,
Book 4, Ch. 31 .............................................................................. 10
Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946) ............................ 10
Brawley v. State of Washington, 712 F.Supp.2d 1208(W.D.Wash.2010) ......................................................................... 38
Cornell v. State, 74 Tenn. 624 (1881)............................................. 34
Cumby v. Meachum, 684 F.2d 712 (10th Cir.1982). ...................... 30
Farmer v. Brennan, 511 U.S. 825 (1994) ....................................... 17
Frazier v. Ward, 426 F.Supp. 1354 (N.D.N.Y. 1977)..................... 29
Furman v. Georgia, 408 U.S. 238 (1972)........................................ 33
Gonzales v. Carhart, 550 U.S. 124 (2007)........................................ 8Harmelin v. Michigan, 501 U.S. 957 (1991). ................................. 11
Hope v. Pelzer, 536 U.S. 730 (2002)................................................ 35
Hudson v. McMillian, 503 U.S. 1 (1992)........................................ 27
In re Grand Jury Investigation, 918 F.2d 374 (3d.
Cir. 1990) ...................................................................................... 33
Maher v. Roe, 432 U.S. 464 (1977). .............................................. 8, 9
Miller v. Albright, 523 U.S. 420 (1998) ............................................ 8Nelson v. Correctional Medical Services, 583 F.3d 522
(8th Cir. 2009) (en banc). ....................................................... 36, 38
Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979).......................... 35
State v. Feilen, 70 Wash. 65 (1912) ................................................ 18
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United States v. Lanier, 520 U.S. 259 (1997)................................... 8
Weems v. United States, 217 U.S. 349 (1910) ................................ 28
Women Prisonersof D.C. Dept of Corr. v. District of
Columbia, 877 F.Supp. 634 (D.D.C. 1994).................................. 37
Other AuthoritiesBarbara Binder Kadden & Bruce Kadden, Teaching
Jewish Life Cycle (1997) .............................................................. 12
Caring for Hindu Patients (Divas Thakror and
Rasamandala Das, eds. 2008) ..................................................... 12
Deitra Leonard Lowdermilk & Shannon E. Perry,
Maternity Nursing(2006) .....................................................passim
G.J. Ebrahim, Cross-cultural aspects of pregnancyand breast-feeding, 39 PROC.NUTR.SOC. 13 (1980). .................. 32
Gwen Stern & Laurence Kruckman, Multi-
disciplinary perspectives on post-partum
depression: An anthropological critique 17 Soc. Sci.
& Med. 1027 (1983) ................................................................ 23, 26
Heidi Murkoff & Sharon Mazel, What to Expect When
Youre Expecting, 382-430 (2002) .......................................... 24, 26
Judy Barrett Litoff, The Midwife ThroughoutHistory, 27 J. Nurse-Midwifery 27 (1982). ................................. 32
Kevin J. Jones, Catholics Praise Nebraska Law
helping Pregnant Immigrants, Catholic News
Agency (Apr. 21, 2012) ................................................................... 9
Marian F. MacDorman & T.J. Mathews (U.S.
Department of Health & Human Services), Recent
Trends in Infant Mortality in the United States,
National Center for Health Statistics Data BriefNo. 9 (Oct. 2008)........................................................................... 22
Pope John Paul II, Evangelium Vitae (1995)..................... 13, 14, 18
Pope John Paul II, Veritatis Splendor ..................................... 17, 18
R. Washbourne, The Works of the Seraphic Father St.
Francis of Assisi (1882)................................................................ 30
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Russell Fuller, Exodus 21:22-23: The Miscarriage
Interpretation and the Personhood of the Fetus, 37
J.EVANGELICAL THEOLOGICAL SOC.169 (1994)........................... 10
Steven G. Gabbe et al., Obstetrics: Normal and
Problem Pregnancies (4th ed. 2002) ............................................ 20
USCCB, Catholic Social Teaching on Immigration
and the Movement of Peoples...................................................... 38
USCCB, Ethical and Religious Directives for Catholic
Health Care Services, (5th ed. 2009). .......................................... 13
USCCB, Responsibility, Rehabilitation, and
Restoration: A Catholic Perspective on Crime and
Criminal Justice (2000) ............................................................... 16
USCCB, Strangers No Longer: Together on the
Journey of Hope (2003). ............................................................... 38
Voices of Islam: Voices of Life: Family, Home, and
Society (Vincent J. Cornell, ed. 2007) ......................................... 12
Wash. Sen. Bill Report SB 6500 (Jan. 27, 2010) (An
Act to Limit the Use of Restraints on Pregnant
Women or Youth)........................................................................ 37
ScriptureExodus 21:22-23 .............................................................................. 14
John 16:21. ...................................................................................... 13
Matthew 25:35................................................................................. 38
Psalm 139:13-16 .............................................................................. 18
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STATEMENT OF INTEREST OF AMICI CURIAE
Amici are Professors of Catholic Moral Theology and a
Professor of Evangelical Christian Theology. As theologians,
amici are practicing members of their faiths who devote their
professional lives to studying and teaching Christian ethics and to
advocating for public policies that respect the human dignity of all
people. Amici submit this brief because Catholic and Evangelical
theology forbids the cruel and inhuman treatment of human
beings, especially women during the special period of labor,
childbirth, and immediately thereafter.
Catholic theology prizes human life from the moment of
conception, which means that pregnant women in labor must be
treated with special solicitude. The birthing period is a time
during which a womans human dignity, including her social and
familial connections, should be especially valued and respected. In
Catholic teachings mothers who bear children are heroic, brave,
and essential to a culture of life. Thus, society must not allow
hostile or cruel treatment of women in childbirth.
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IDENTITY OF AMICI CURIAE
Dr. Emily Reimer-Barry is Assistant Professor of Theology and
Religious Studies at the University of San Diego.
Dr. Jana Bennett is Assistant Professor of Theological Ethics at
the University of Dayton.
Dr. Charles Camosy is Assistant Professor of Christian Ethics at
Fordham University and a Visiting Fellow at Oxford Universitys
McDonald Centre for Theology, Religion, and Public Life.
Dr. Julie Hanlon Rubio is Associate Professor of Christian Social
Ethics at Saint Louis University.
Dr. Beth Haile is Assistant Professor of Moral Theology at Carroll
College, Helena, Montana.
Dr. Tisha Rajendra is Assistant Professor of Theology at Loyola
University, Chicago.
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Rev. Dr. David Gushee is the Distinguished University Professor
of Christian Ethics and Director of the Center for Values in Public
Life at Mercer University in Atlanta.
Dr. William Joseph Buckley is Assistant Professor at Seattle
University who teaches moral theology, theological ethics, and
comparative religious ethics.
Dr. Tobias Winright is Associate Professor of Theological Ethics at
Saint Louis University.
Dr. Nancy M. Rourke is Associate Professor of Religious Studies
and Theology and Director of the Catholic Studies Program,
Canisius College, Buffalo.
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Dr. Kathryn Getek Soltis, S.T.L. (License in Sacred Theology) is
Assistant Professor of Christian Ethics and Director of the Center
for Peace and Justice Education at Villanova University,
Pennsylvania.
SUMMARY OF ARGUMENT
Contemporary standards of decencythe touchstone of
Eighth Amendment jurisprudenceencompass special respect
and compassion for birthing mothers. Pregnancy and childbirth
are actions that society has honored over the centuries. Maher
v. Roe, 432 U.S. 464, 479 (1977). Hundreds of state and federal
laws that protect and encourage pregnancy reflect the unique
importance that the nation attaches to childbearing. Those
societal concerns are at their apogee at the point of childbirth,
when the mothers physical and emotional suffering is the
greatest, and when the dangers to mother and child are the most
serious.
Religious organizations regard childbearing as a
particularly precious and sacrosanct event. The United States
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Conference of Catholic Bishops, for example, has admonished
Catholic hospitals to take care of women and their children
during and after pregnancy. Church teachings urge support for
brave mothers who . . . suffer in giving birth to their children.
Such faith-based standards of decency are part of the mosaic of
values that constitutes the nations accepted standards of decency.
When a woman in government custody gives birth, the
government must exercise particular restraint in order to avoid
the type of mistreatment that would be contrary to the universally
accepted standard of decency regarding childbirth. The birth of a
child is fundamentally different, physically and spiritually, from a
routine medical procedure such as an appendectomy.
Thus, Government intrusion during the period of
childbirth is highly likely to result in an Eighth Amendment
violation. First, government intrusion will often result in the
wanton infliction of increased physical or emotional pain for the
mother, who will already be enduring pain as a result of the rigors
and dangers of childbirth. In this case, for example, shackling the
plaintiff during much of the period of labor caused just such
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constitutionally impermissible physical suffering. After delivering
the baby, the plaintiff was chained to her bed, unable to comfort
her newborn son when he cried in his nearby crib. Second, such
intrusion will frequently entail the type of gross invasion of
privacy that would violate the Constitution. Here, for five critical
days, from the outset of labor to the forced removal of her infant,
including the uniquely private hours of delivery, the plaintiff was
surrounded only by strangers, including male guards, while
wholly cut off from any contact with her husband or family.
Third, the exceptionally vulnerable position of a birthing mother
renders particularly objectionable government action that injures
the dignity of an individual. Federal decisions have repeatedly
recognized that the use of shackles is so humiliating and
degrading that it must be limited to situations in which no other
method would be sufficient to address a real danger of violence or
flight. A birthing mother is physically unable to flee, and the only
danger posed in this case was that created by the defendant itself
for the mother and child. Shackling the plaintiff was as
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gratuitously offensive as shackling a paraplegic inmate in a
wheelchair.
ARGUMENT
I. RESPECT AND PROTECTION FOR BIRTHING
MOTHERS IS A CORE SOCIETAL VALUE
A.Pregnancy and Childbirth Have Long BeenRevered by All Human Societies
The abusive actions in this case strike at the very heart of
the Constitutions prohibition against cruel and unusual
punishment. Ordinarily the resolution of cruel and unusual
claims requires the court to apply evolvingstandards of decency.
See Roper v. Simmons, 543 U.S. 551, 560 (2005). Under that
analysis, the punishments and conditions of confinement that
might have been tolerable in centuries or decades past may be
deemed inconsistent with the values of the nation today. On
infrequent occasion, however, the courts are faced with a form of
abusive behavior that has no precedent, and whose harshness
would have been regarded as intolerable at any point in the
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nation's history.1Those uncommon but extreme situations easily
fall within the constitutional prohibition against punishments
that are both unusual and cruel. This is such a case.
The law has long recognized the entirely unique importance
of childbirth. State officials must respect, not pervert . . . the
process by which life comes into the world. Gonzales v. Carhart,
550 U.S. 124, 160 (2007). Pregnancy and childbirth are not value-
neutral or disfavored activities, but are actions society has
honored over the centuries. Maher v. Roe, 432 U.S. 464, 479
(1977). Since a woman must carry [a] pregnancy to
term[and] must then actually give birth to the child, our laws
and policies seek to reward[] that labor. Miller v. Albright,
523 U.S. 420, 433-34 (1998). Hundreds of state and federal
statutes that protect and encourage pregnancy reflect the unique
value and importance that the nation attaches to childbearing.2
1See United States v. Lanier, 520 U.S. 259, 271 (1997) (theeasiest cases [on impermissible conduct] never even arise).2 Tennessee alone has no less than 60 state statutes providing
special rights, privileges, and protections for pregnant women. .
The federal government, inter alia, protects pregnant women with
the Emergency Medical Treatment and Active Labor Act of 1986
(EMTALA), 42 U.S.C. 1395dd (1986); WIC (1966); 42 U.S.C.
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Childbirth is also a time of special concern because of the
pain and dangers involved; burdens which command the
compassion and respect of society at large. Labor and childbirth
are extremely painful, both physically and emotionally. Giving
birth can cause serious injuries, disability, and even death. Since
every person alive owes his or her life to someone else having
endured pregnancy and childbirth, society feels called to help, not
hurt, pregnant women.
Respecting and helping women in the period of childbirth is
not some new fad or transient idea; it assuredly enjoyed near
universal acceptance, among the religious and non-religious alike,
when the Eighth Amendment was framed some 220 years ago.
Ancient societies imposed heightened punishments on those who
1786; FMLA, 29 U.S.C. 2612(a)(1)(A); PDA (1978), 42 U.S.C.
2000e. Many state laws promote breastfeeding, inter alia Montana
Code 39-2-215; District of Columbia Code 2-1402.81. Nebraskas
state Medicaid program provides prenatal care to undocumentedimmigrants. It is supported by the Nebraska Catholic Conference
as a strong pro-life policy.Kevin J. Jones, Catholics Praise
Nebraska Law helping Pregnant Immigrants, Catholic News
Agency (Apr. 21, 2012),
http://www.catholicnewsagency.com/news/catholics-praise-
nebraska-law-helping-pregnant-immigrants/.
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would hurt pregnant women.3 Our modern society does the same.4
To the knowledge of amici, neither the Congress nor any state
legislature has ever adopted laws directing or even expressly
permitting the physical or psychological abuse of a woman during
childbirth. In Blackstones England and ancient Rome, convicted
pregnant women were not punished at all until after delivery.
Blackstone, Commentaries on the Laws of England, Book 4, Ch.
31. Only within the last decade or two have there been reported
incidents in which a woman during childbirth was shackled to a
bed or gurney or forced to endure the presence of male police
officers or guards in the delivery room. The very rarity of this
callous innovation is compelling evidence of the degree to which it
3Hurting a pregnant woman and causing her to miscarry was
prohibited in the Old Testament (Exodus 21:22); the Code of
Hammurabi, 1772 B.C.; Sumerian law, 3rd century B.C. Russell
Fuller, Exodus 21:22-23: The Miscarriage Interpretation and the
Personhood of the Fetus, 37 J. Evangelical Theological Soc.169,174 (1994).4 Persons who hurt a pregnant woman may be held liable in tort
or criminal law for injury to both the woman and the infant. See
Bonbrest v. Kotz, 65 F.Supp. 138 (D.D.C. 1946); Unborn Victims of
Violence Act, 18 U.S.C. 1841(B). Thirty-five states have similar
criminal laws.
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departs from the nations longstanding and widely accepted
values.5
These societal norms were sharply illustrated in the instant
case by the reactions of the medical staff who witnessed how Mrs.
Villegas was treated by Metro officials. The nursing and medical
professionals who saw what the officials were doing to Mrs.
Villegas objected to that conduct. Appellees Br. 34 35. They
repeatedly insisted that guards remove the shackles, and they
pleaded with the guards to allow Mrs. Villegas to have a breast
pump. Id. The hospitals medical and nursing staff likely came
from diverse backgrounds and ascribe to different faith-based or
secular values. The fact that so many of them spontaneously and
insistently objected to Metros treatment of Mrs. Villegas is
compelling evidence that such mistreatment is inconsistent with
contemporary standards of decency.
5 Cases rejecting Eighth Amendment challenges to certain
punishments usually rely on the fact that the punishment hasbeen duly enacted by a state legislature. Harmelin v. Michigan,
501 U.S. 957, 1001 (1991). Shackling birthing mothers has never
been imposed by democratically-adopted legislation. Every state
legislature to have taken up the issue of shackling of birthing
mothers sixteen to date has banned the practice. See Brief of
Amicus Curiae ACLU at 31.
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B.B. Faith-Based Standards of Decency Informthe Meaning of the Cruel and Unusual
Punishments Clause
In a society that includes hundreds of millions of individuals
of faith,6 standards of decency that are rooted in religious beliefs
are an important part of the mosaic of values that constitutes the
nations accepted standards of decency. All the religions of the
world, divergent though they may be in other ways, enjoin the
faithful to exhibit a special respect and reverence for the time
when a woman gives birth.7Amici will primarily discuss the
Catholic position,8 but this faith-based standard of decency is
6 Amici do not propose that Catholic or Christian principles should
be more relevant than the values of other religious groups or of
non-believers; but seek merely to explain the Catholic position on
reverence for childbirth insofar as it aligns with and can give
context to the secular and mainstream consensus.
7 For example, childbirth has spiritual and sacred meaning in
Judaism, Islam, and Hinduism, as well as in all denominations of
Christianity. See Barbara Binder Kadden & Bruce Kadden,
Teaching Jewish Life Cycle 166 (1997); Voices of Islam: Voices oflife: family, home, and society 107 (Vincent J. Cornell, ed. 2007);
Caring for Hindu Patients 55 (Divas Thakror and Rasamandala
Das, eds. 2008).8 Amicus Curiae Rev. Dr. David Gushee is an Evangelical, not
Catholic, theologian. While this brief will primarily discuss
Catholic values; Dr. Gushees faith-based standards similarly
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wholly consistent with the values of those who may have no
religious affiliation or beliefs, and is part of a national and indeed
human consensus.
The United States Conference of Catholic Bishops (USCCB)
has admonished Catholic hospitals to take care of women and
their children during and after pregnancy, which care must be
delivered with compassion, to embrace[] the physical,
psychological, social, and spiritual dimensions of the human
person. USCCB, Ethical and Religious Directives for Catholic
Health Care Services, 14, 23(5th ed. 2009). The New Testament
recognizes the unique importance and complexity of childbirth:
A woman, when she is in labor, has sorrow because her hourhas come; but as soon as she has given birth, she no longer
remembers the anguish, for joy that a child has been born
into the world.
John 16:21. In Catholic teaching mothers who bear children are
heroic and essential to a culture of life. Pope John Paul II,
Evangelium Vitae at 99.
reject Metros treatment of Mrs. Villegas and for similar reasons
as those of the Catholic tradition.
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The Catholic Church teaches that from the moment of
conception, and including during labor and delivery, human life
must be guaranteed that unconditional respect which is morally
due to the human being. Id. at 59 (1995). The Catholic pro-
life position requires that pregnant women and newborn infants
be given special solicitude. Catholics must support the brave
mothers who suffer in giving birth to their children. Id. at
86. Hurting women during pregnancy is antithetical to this
command: [I]f men strive, and hurt a woman with childhe shall
surely be punished. Exodus 21:22-23.
Mistreatment of a birthing mother has special resonance for
all Christians, because it evokes the story of Mary, who was
turned away at the inn in Bethlehem and forced to give birth in a
stable. The re-telling of that story every Christmas reminds
Christians of the vulnerability of motherhood, and moves
Christians to regard pregnant and birthing mothers with special
compassion.
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II. ABUSE OF BIRTHING MOTHERS WHILE IN CUSTODY
CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
The Cruel and Unusual Punishments clause of the Eighth
Amendment protects the basic dignity of people taken into the
states custody, even those who have committed the most serious
crimes. Roper, 543 U.S. at 576, 560. Individuals who have not yet
been convicted of any crime at all, but who are merely pretrial
detainees, are subject to a higher standard of constitutional
protection, because, under the Fourteenth Amendments Due
Process clause, they cannot be subject to any actions that
constitute punishment.Bell v. Wolfish, 441 U.S. 520, 545 (1979).
Government action toward such a detainee, even if taken for a
non-punitive purpose such as assuring security or preventing
flight, is impermissible if the means taken are harsh and
unreasonable. Id. at 599.
Catholic teaching, like constitutional law, affirms this basic
right to dignity even of individuals who are incarcerated. The U.S.
Catholic Bishops hold that any system of penal justice
mustenable inmates to live in dignity [and provide for]
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personal safety [and] timely medical care. USCCB,
Responsibility, Rehabilitation, and Restoration: A Catholic
Perspective on Crime and Criminal Justice (2000).
The varieties of harsh treatment to which Mrs. Villegas was
subjected in this case implicate three distinct lines of Eighth
Amendment precedent and violate the constitutional prohibitions
against: wanton inflictions of pain, intrusions into intimate
privacy, and humiliating affronts to dignity.
C.Wanton Infliction of PainThe Cruel and Unusual Punishments clause prohibits states
from inflicting acute pain and suffering on prisoners. ONeil v.
State of Vermont, 144 U.S. 323, 339 (1892). Treatment or
conditions of confinement that amount to an unnecessary and
wanton infliction of pain are unconstitutional. Hudson v.
McMillian, 503 U.S. 1, 5 (1992). This prohibition on the infliction
of pain extends to emotional pain; state officials may not subject
detainees to treatment that is devastating to the human spirit,
that causes [s]hame, depressiona shattering loss of self-
esteem[and] perpetual terror. Farmer v. Brennan, 511 U.S.
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825, 853 (1994). Metros actions in this case violated the
constitutional prohibition against infliction of physical pain and
psychological torment.
This baseline understanding that state officials may not
inflict pain on those who are at their mercy is a value shared by
Catholics and many people of faith. Catholic teachings forbid
inflicting pain on others, and instead urge the faithful to offer
help, pain relief, and compassion to the sick and the suffering.
Mother Teresa said that the sick, suffering, and wounded are
Jesus in disguise, and taught that we must extend to them our
greatest compassion. Although there may be unusual
circumstances in Catholic thought in which the affirmative duty to
help others might not apply, there are no exceptions to the related
duty to refrain from actively hurting others. Pope John Paul II,
Veritatis Splendor 52. Moreover, Catholic teachings hold that
physical and mental torture are among the most intrinsically
immoral acts, and we must avoid inflicting pain on others
regardless of the cost. Id.
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When both childbirth and unborn life are at stake, Catholic
teachings hold that we must take special care so as to avoid
causing harm to the two vulnerable human lives at issue. Threats
to human dignity are especially pernicious where life is weak and
defenseless. Evangelium Vitae at 3. To callously cause a woman
to fear for her unborn child is gravely evil, an offense to unborn
life, and even an offense to God, who is believed to be present in a
communion with the mother and the life developing in her womb.
Evangelium Vitae at 77. See also Psalm 139:13-16 (For you
created my inmost being; you knit me together in my mothers
womb) Acts that ignore the sanctity of childbirth are
antithetical to core Catholic values. Veritatis Splendor at 52.
D.Metros abusive treatment of Juana Villegasinflicted severe pain and suffering.
Labor, childbirth, and their aftermath often inflict great
amounts of pain, stress, and emotional suffering on the birthing
mother. The Eighth Amendment prohibits treatment that
unnecessarily augments pain. State v. Feilen, 70 Wash. 65, 71
(1912). If government officials interfere with a birthing mother
and with the health care professionals trying to help her, their
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actions will almost invariably increase the mothers physical pain
and emotional anguish. Officials interfering with a birthing
mothers labor also violate the Eighth Amendments related
requirement that officials help a prisoner who faces serious
threatened pain but is unable to fend for [her]self. Farmer v.
Brennan, 511 U.S. 825, 853 (1992).
1. Physical pain of labor and childbirth
A woman in labor already feels extreme physical pain: it is a
degree of pain that may be matched by no other experience in life,
and a level of pain that most men may be unlikely ever to know.
Labor is an involuntary process in which enormous muscular
contractions overtake the body in an effort to expel the baby,
whose head is at least ten times wider than a womans vaginal
opening. Deitra L. Lowdermilk & Shannon E. Perry, Maternity
Nursing, 324-325 (2006). These contractions are extremely
painful, and get worse. As labor advances, the fetuss head
descends into the pelvic floor, putting pressure on the vagina,
rectum, and urethra, which causes further pain. Steven G. Gabbe
et al., Obstetrics: Normal and Problem Pregnancies 77 (4th ed.
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2002). As the pelvic ligaments stretch, it can create the painful
and frightening sensation that the bones are snapping. Id. at 81.
Women can ameliorate their pain by walking around, stretching,
and adopting different positions, including squatting, standing,
bending forward, and lying on their side. Lowdermilk & Perry at
326, 328, 338. Being immersed in water, being massaged,
acupressure, and acupuncture are all methods recommended to
relieve some of the pain of labor. Id. at 346-347.
When government officials, by the use of heavy shackles or
other constraints, limit the movement of a birthing mother, those
constraints inevitably reduce her ability to find relief from the
pain of labor because they limit her ability to walk, stretch, and
change position. She certainly cannot take a bath. Being unable to
walk during labor is particularly serious because a woman cannot
respond in the most effective manner to the enormous muscular
contractions that overtake her body, and to the pain caused as her
organs are stretched and distended by the fetuss descent.
Lowdermilk & Perry at 338.
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In response to Mrs. Villegass onset of labor, Davidson
County officials shackled her legs together with leg irons, and
shackled her wrists together. Appellees Br. 16. She remained
shackled until two hours before her son was born. Appellees Br.
18. Those actions exacerbated Mrs. Villegass pain and seriously
interfered with her ability to lessen her own suffering.
2. Emotional suffering during labor and childbirth
Labor and delivery are not only painful, they are also
emotionally fraught and distressing for many women, even those
who are overjoyed to be having the baby. When a womans water
breaks and labor starts, she is likely to be afraid for the survival of
her baby, of the pain she expects will strike during and after
childbirth, and of risks to her own life and health. For a laboring
mother, emotional distress is quite serious, because it can also
harm her fetus. See Black v. Toys R U.S. Delaware, 2010 WL
4702344 (S.D. Tex. Nov. 10, 2010). Feeling that the fetus is
threatened can create a vicious cycle, in which a womans concern
for her fetus exacerbates her emotional distress, which then
further jeopardizes the fetus.
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Since the physical pain of labor and childbirth is already
accompanied by emotional and psychological distress, intrusions
by prison guards or other hostile state actors into the delivery
room and into the process of childbirth unnecessarily add to her
emotional suffering.
In this case, while Mrs. Villegass uterine muscles were
involuntarily contracting in an effort to push the baby out of her
body, Metro shackled her legs together. She became overwhelmed
with fear that since she could not open her legs, the baby would
die inside her.9 Appellees Br. 21, 28. Even when, as here, the child
ultimately survives, that is immaterial: the trauma is something
from which a woman might never recover. In Mrs. Villegass case,
this fear caused post-traumatic stress disorder, lasting phobia,
and depression. Appellees Br. 28-29.
Because giving birth is so difficult, all-consuming, and
frequently so frightening, it is a time when many women rely on
9Fear that the baby will die or be stillborn is not unreasonable: in
the United States even today, more than 28,000 infants die before
their first birthday. U.S. Department of Health & Human
Services, Recent Trends in Infant Mortality in the United States,
NCHS Data Brief No. 9 (Oct. 2008).
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their husbands or other intimate partners for essential support
and aid during the hours of painful labor. The presence of this
loving partner is vital for many womens to cope with the
childbirth experience. Women who must give birth in a hostile
environment are more likely to experience post-partum depression
and to have difficulty bonding with their child. Gwen Stern &
Laurence Kruckman, Multi-disciplinary perspectives on post-
partum depression: An anthropological critique 17 Soc. Sci. &
Med. 1027 (1983).
Metro refused to allow Mrs. Villegas to even call her
husband, so she was unable to give birth with him, or any family
members or friends, present. Appellees Br. 7. Throughout the
birthing process, from the onset of contractions until several days
after the birth of her child, Mrs. Villegas was surrounded only by
total strangers, one of whom, at all times, was a uniformed guard.
The hostile environment that Metro created for Mrs. Villegas
intensified her suffering.
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3.Physical pain in the post-partum periodWomen in the post-partum period experience many forms of
serious pain. When, during childbirth, the woman pushes the
babys head out of her vagina, the perineum (the tissue between
her vagina and anus) can rip, or an obstetrician may make an
incision called an episiotomy so that the babys head can come out.
Lowdermilk & Perryat 338. In either case, the woman frequently
requires perineal stitches after giving birth. Those stitches, and
her genital area in general, are exceedingly sensitive and painful
after birth. There is likely to be substantial vaginal bleeding.
Women after giving birth are urged to walk around so as to avoid
painful blood clots, which can be the size of grapes or even golf
balls. Heidi Murkoff & Sharon Mazel, What to Expect When Youre
Expecting, 382-430 (2002). Meanwhile, the uterus is contracting,
causing painful cramping and spasms. Id. There is frequently so
much pain in the groin area that it is painful to sit down, walk, or
use the bathroom. Id. Women may contract painful hemorrhoids,
which make having a bowel movement even more painful. Id.
Hernias are common, and are also painful. Id. Showering and
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washing the genital area after childbirth is important so as to
avoid painful infections. Thus, state actions interfering with a
woman during this period are exceedingly likely to exacerbate
pain and suffering.
In this case, after Mrs. Villegas gave birth to her child, she
was re-shackled and chained to the bed for two days. Her legs
were shackled together while she used the bathroom and while
she took a shower. Appellees Br. 18. Since walking after birth is
already so painful given the trauma to the body, to shackle a
woman with leg irons exacerbates that pain quite significantly.
Shackles increase the pain of using the bathroom, which is
already painful after giving birth. Moreover, the shackles impeded
Mrs. Villegass ability to properly wash herself after giving birth,
thus increasing her risk of painful infections. Appellees Br. 21.
4. Emotional pain in the post-partum periodHolding the baby is an extremely important physiological and
psychological need for many women who have just given birth.
Lowdermilk & Perry, at 497. Mothers are encouraged to
breastfeed, because breastfeeding causes the release of oxytocin,
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which in turn triggers the maternal-child bonding impulse and
promotes uterine recovery. Lowdermilk & Perry, 455. At the same
time, women after childbirth are emotionally exhausted and can
experience depression or at least, feelings of inadequacy. Murkoff
& Mazel at 382-430. The likelihood of post-partum depression is
greatly increased if the woman is separated from her newborn and
lacks family support after giving birth. Stern & Kruckman at
1027.
Government actions that create obstacles for a woman who has
just given birth to connect with her baby are likely to aggravate
her distress during this already emotionally difficult period. The
shackles prevented Mrs. Villegas from being able to adequately
care for and bond with her baby. She needed to hold him and carry
him around the room when he cried, but the shackles prevented
her from being able to do so. She could neither rock him in his
cradle nor change his diaper. Appellees Br. 21. Being unable to
comfort her baby tormented her she tried not to move while she
slept, so as to avoid waking him up, since she knew that if he cried
she wouldnt be able to give him the comfort he needed. Id. The
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use of shackles to physically restrain a new mother from
comforting her crying infant is exceptionally cruel. It also caused
lasting emotional harm. Mrs. Villegas now suffers from post-
traumatic stress disorder, major depression, and phobia.
Appellees Br. 21. Being shackled while trying to care for her son
is a memory that impedes Mrs. Villegass ability to bond with and
interact with her son, and it is especially severe on his birthday.
Id.
After two days of recovery in the hospital while shackled,
Metro made Mrs. Villegas return to jail. She was not allowed to
take her newborn infant with her. Appellees Br. 20. She did not
know if and when her husband was able to pick him up at the
hospital; and she did not know if and when she would ever be
released from jail and reunited with her newborn. Taking away a
womans baby right after birth is emotionally painful, especially
given the increased risk of post-partum depression. See Stern &
Kruckman. To take away a womans baby and not tell her if or
when she will ever see him again is an unnecessary and wanton
infliction of pain. Hudson, 503 U.S. at 5.
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5. Refusing to allow a postpartum woman to have a breastpump needlessly inflicts severe pain
After a woman gives birth, her breasts fill with milk. If a
woman is not nursing and has no way to express her breast milk,
the breasts are likely to become rock hard and infected, which is
exceedingly painful. See Appellees Br. 43. When government
actors prohibit lactating women from having any way to express
their breast milk, that causes severe, lingering, and acute pain, as
this case illustrates.
After Metro separated Mrs. Villegas from her newborn baby,
it refused to allow her to take a breast pump back to jail from the
hospital. Appellees Br. 20. Metro officials did this even though the
breast pump was issued by the hospital and the hospital staff
pleaded with Metro to let her have it. Id. Without a breast pump,
Mrs. Villegas was unable to express her breast milk, which caused
her to develop excruciatingly painful mastitis. Id. Denying a post-
partum woman a breast pump is guaranteed to lead to serious
suffering for days and weeks. That creates the kind of lingering
pain that has long been unconstitutional to impose on prisoners.
Weems v. United States, 217 U.S. 349, 373, 367 (1910). Moreover,
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being denied a breast pump caused her such excruciating pain
that Mrs. Villegas had to ask another inmate to help express her
milk. Appellees Br. 20. Reducing a woman to have to do such a
thing is dehumanizing.
Finally, Metros behavior in withholding a breast pump
advanced no purpose. There is no possible set of facts that could
make withholding a hospital-issued breast pump from a
postpartum mother reasonable. A breast pump, which is made of
soft, bendable, clear plastic, is obviously not a weapon, and having
a breast pump does not have anything to do with a detainees
ability to flee.
E.Bodily and Spiritual PrivacyEgregious invasions of privacy are also forbidden by the
Eighth Amendment. The constitution does not allow state actors
to insist that detainees show them their genitals, absent an
emergency. Frazier v. Ward, 426 F.Supp. 1354, 1365 (N.D.N.Y.
1977). The constitution forbids guards from watching prisoners of
the opposite sex engaged in personal activities, such as
undressing, using toilet facilities, or showering. Cumby v.
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Meachum, 684 F.2d 712, 714 (10th Cir.1982). If undressing, using
the toilet, and showering are protected personal activities, then
certainly giving birth to a baby is.
Catholic teaching condemns unwanted intrusion into the
birthing experience not only for the reasons discussed in section
II(A), but also because Catholics, Evangelicals, and many other
religious people prize modesty and privacy related to sexual
organs and reproduction. Women are instructed not to expose
their sexual organs to men outside the marital bed. Men are
instructed to refrain from even looking at womens sexual body
parts by a doctrine called custody of the eyes. R. Washbourne,
The Works of the Seraphic Father St. Francis of Assisi, 254-255
(1882). Forcing a woman to expose her body to an unrelated man,
especially during private and emotional moments, is forbidden by
many religions, and is similarly offensive to common sense secular
standards of decency. The birthing period is a time when this
protection of intimate privacy is especially important.
Women in the birthing period are undergoing an all-
consuming experience during which their most private body parts
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the vagina, pubic hair, the anus, and the breasts are exposed,
and are quite literally out of the womans control. Women may
scream, cry, grunt, and lose control of their bowels and urinary
tract. Moreover, childbirth is fraught with meaning and
importance for the woman, making her privacy concern more
significant than the (also legitimate, but less extreme) privacy
concern of a person undergoing an ordinary medical procedure.
Thus, only the woman giving birth has the privilege to decide who,
other than medical professionals, may be present during this
intimate, spiritual, sometimes embarrassing, sometimes
frightening time.
Once labor begins, the birthing woman is powerless to
stop the process. Lowdermilk & Perry at 326. Thus, when
strangers refuse to leave the delivery room, the birthing woman
has no ability to keep them from seeing her vagina and anus, from
seeing her possibly lose control of her bowels, and from hearing
her scream and cry. Women cannot choose to put on pants while
having a baby. If prison officials refuse to leave, she is powerless
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to avoid being totally exposed. That exposure is particularly
dehumanizing.
A woman giving birth also needs respect for her emotional
privacy. Birth is an intimate experience. The fathers presence is
highly valued by some women, but many still prefer to give birth
surrounded only with female relatives or female midwives. G.J.
Ebrahim, Cross-cultural aspects of pregnancy and breast-feeding,
39 PROC.NUTR.SOC. 13 (1980). To have to give birth without any
loved family members, but instead in the presence only of
strangers, including hostile guards, can be deeply violating. To
have to give birth in the presence of strange male guards is even
more unusual, because for most of human history, men,
including fathers, were not allowed to be present at births at all.
Judy Barrett Litoff, The Midwife Throughout History, 27 J. Nurse-
Midwifery 27, 5 (1982). Contemporary standards of decency do not
permit third parties to be in the delivery room other than medical
professionals and those to whose presence the woman has
consented.
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Giving birth, for people of faith, also implicates ones
relationship with God. Our society, including non-believers, does
not permit unwanted third parties to intrude into moments of
spiritual communion or family intimacy. See In re Grand Jury
Investigation, 918 F.2d 374 (3d. Cir. 1990) (on clergy-communicant
privilege and marital privilege). Third parties may not intrude
into the confessional, nor should they intrude when a woman is
giving life. Notwithstanding these universal standards of decency,
strange and usually male law enforcement officers were present
while Juana Villegas labored and gave birth. While they turned
their backs while she initially changed clothes, this was purely at
their whim. She could not keep herself from going through this
personal, anguished, and exposed experience without unknown
uniformed men there to see and hear everything.
F.Dignity and HumiliationUnderlying the [E]ighth [A]mendment is a fundamental
premise that prisoners are not to be treated as less than human
beings. Furman v. Georgia, 408 U.S. 238, 271-73 (1972). Thus,
treatment that degrades and humiliates has long been prohibited.
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In 1881, corporal punishment was impugned by the State of
Tennessee not just for being painful, but because it tended to
degrade the individual and destroy the sense of personal honor.
Cornell v. State, 74 Tenn. 624, 629-30 (1881).
Catholic doctrine also affirms this basic right to dignity for
all humans, including the incarcerated. Catholic teachings insist
that even the incarcerated must be ensured the right to live in
dignity. USCCB, Responsibility, Rehabilitation. Dehumanizing
treatment of women during childbirth is thus highly offensive to
the Catholic conception of innate human dignity. Because Catholic
teachings view our identities as mothers, children, and fathers as
primary, Catholic hospitals do not engage in practices that
undermine the biological, psychological, and moral bonds
between mothers and their children or between husbands and
wives. USCCB, Ethical and Religious Directives for Catholic
Health Care Services at 23. In the Catholic view, perverting the
experience of childbirth by making a birthing mother feel like an
animal or like a slave is gravely evil, poisons her family
relationships, and insults the essence of our humanity.
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Shackling has long been known to be an especially
humiliating affront to human dignity. See Hope v. Pelzer, 536 U.S.
730 (2002). Restraints may be allowed only if an exceptional
security or penological reason exists; for example, a prison may
be allowed to shackle non-pregnant, male inmates during
visitations if they are convicted murderers who have also recently
killed other inmates and prison guards. Spain v. Procunier, 600
F.2d 189, 197 (9th Cir. 1979) (Kennedy, J.).
The inapplicability of that kind of rationale to the situation
of a birthing mother is utterly obvious. Birthing women do not
pose threats to anyone. A woman in labor is completely
overwhelmed with pain, and is preoccupied with the impending
childbirth, with fear, and with concern for her baby. She is
entirely physically constrained by the labor. In the midst of labor
she usually has difficulty walking any distance, let alone moving
with any speed. A woman in labor could not conceivably elude a
healthy adult corrections officer who is not in labor, and she
knows that both she and the baby could be in danger if she left the
hospital.
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After she has delivered her baby, a postpartum woman
similarly poses no risk of flight. After giving birth the woman is
totally exhausted and has difficulty walking due to the trauma,
pain, bleeding, and swelling in her abdominal, back, and vulvar
tissue. She will have sore muscles on her entire body and will
likely have stitches on her perineum. Because even walking is
painful during this time, running is out of the question. Any
security concern could be addressed with one simple step: locking
the door. Given the obvious harms posed by shackling and the
extremely limited mobility of a birthing mother, no competing
penological purpose is likely to exist in a case like this. See Nelson,
583 F.3d at 530 n.5. Shackling a woman in the throes of childbirth
for security purposes is as unreasonable as shackling a person
confined to a wheelchair.
Every court to consider the issue of shackling birthing
mothers has noted its degrading character. Id. Women who have
been forced to labor while in shackles described the experience as
making them feel like an animal. See Wash. Sen. Bill Report SB
6500 (Jan. 27, 2010) (An Act to Limit the Use of Restraints on
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Pregnant Women or Youth). Subjecting male prisoners to
mandatory rectal exams has been held unconstitutional for that
very reason: the treatment is reminiscent of that of livestock.
Frazier v. Ward, 426 F. Supp. 1354, 1365 (N.D.N.Y. 1977).
Shackling a woman during childbirth is qualitatively even more
disturbing, though, because childbirth is already a process that
can make the woman feel as though her body is out of her control.
III. THE SCOPE OF THE CRUEL AND UNUSUAL
PUNISHMENTS FORBIDDEN BY THE EIGHTH
AMENDMENT DOES NOT VARY WITH AN INDIVIDUAL'S
IMMIGRATION STATUS
The Eighth Amendments prohibition on cruel treatment of
detainees and prisoners applies to everyone within the jurisdiction
of the United States. There could be no double standard of cruelty
depending on race, color, or religion: similarly, there can be no
double standard of cruelty depending on citizenship status.
Shackling of laboring women has been held unconstitutional when
applied to convicted criminals.10 It is thus obviously harsh and
10See Women Prisonersof D.C. Dept of Corr. v. District of
Columbia, 877 F.Supp. 634, 668-69 (D.D.C. 1994); Nelson v.
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unreasonable, Bell, 441 U.S. at 599, when applied to a woman
who has not been tried and convicted of any crime, and whose
worst offense may have been lacking proper immigration
documents. The Immigration and Nationality Act emphatically
does not contain any provision requiring that pregnant women
with irregular status be arrested and made to give birth in chains.
Catholic teachings are exceedingly concerned with
mistreatment of immigrants and the politically unpopular, and
reject the idea that prosperous nations would treat immigrants
from poor countries with cruelty. See USCCB, Catholic Social
Teaching on Immigration and the Movement of Peoples. These
views are based in part on Jesuss story (I [Jesus] too was a
stranger and you welcomed me, Matthew 25:35), which Catholics
interpret as a command to be kind to immigrants. Regardless of
their legal status, immigrants, like all persons, possess inherent
human dignity that should be respected. USCCB, Strangers No
Longer: Together on the Journey of Hope (2003).
Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009) (en
banc); Brawley v. State of Washington, 712 F.Supp.2d 1208
(W.D.Wash.2010).
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Metros abuse of Mrs. Villegas violated a number of rights
recognized both by the law and by faith-based standards of
decency: the right to respect for vulnerable infant life, the right to
respect for childbirth, the right to respect for families and
motherhood, and the right to humane treatment for all, with no
exceptions.
CONCLUSION
The judgment of the District Court should be affirmed.
Respectfully submitted,
/s/ Eric Schnapper
Dated: May 9, 2012 Eric SchnapperMaureen Howard
SCHOOL OF LAW
UNIVERSITY OF WASHINGTON
PO Box 353020
Seattle, WA 98195
Telephone: (206) 616-3167
Facsimile: (206) 685-4469
Email: [email protected]
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Rebecca S. Jones
603 Pontius Ave North
Seattle, WA 98109
Telephone: (425) 830-6211
Email: [email protected]
Attorneys for Amici Curiae
CERTIFICATE OF COMPLIANCE WITH RULE 37(a)(7)(c)
1. This brief complies with the type-volume limitation of Fed. R.
App. P. 29(d), which requires an amicus brief to be no longer than
the length of the principal brief, because Rule 32(a)(7)(B) allows
a principal brief in proportional typeface to contain up to 14,000
words. This brief contains 6,832 words, excluding the parts of the
brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.
32(a)(6) because it has been prepared in a proportionally-spaced
typeface using Word 2007 in 14 point Century Schoolbook.
Dated: May 9, 2012 /s/ Eric Schnapper
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CERTIFICATE OF SERVICE
I certify that this document has been served via the CM/ECFsystem upon the following this 10th day of May, 2012:
Kevin C. Klein
Allison L. Bussell
METROPOLITAN DEPARTMENT OF
LAW
P.O. Box 196300
Nashville, Tennessee
[email protected]@nashville.gov
Phillip F. Cramer
John L. Farringer IV
William L. Harbison
Ryan T. Holt
SHERRARD &ROE,PLC
150 3rd Ave. South, Suite 1100
Nashville, Tennessee [email protected]
Elliott Ozment
1214 Murfreesboro Pike
Nashville, Tennessee
/s/ Eric Schnapper