Site Update

The blogroll/links section on the right is complete. Well, as complete as it's going to be for a while, at least until Blawg Review #20 is published. Please let me know of any misspellings, broken links, if you think you were inadvertently left off :), etc.

Also, please note that these are blogs that I actually read (or at least scan the headlines of), not blogs that I think I should read, or blogs that I think you should read. For instance, I do have a couple blogs on my feed that look interesting, but are not on my blogroll yet since I haven't read enough to know if I want to keep them. Also, by the same token, blogs are subject to deletion at any time. So keep up the good work.

P.S. Why does Blogger's spellcheck function not recognize the word "blog". I mean, really! I can understand "blawg", "blogging", "blog(o)sphere", and "blogroll", but the word BLOG? Come on.

100 blogs in 100 days

The Blog Herald will be featuring a blog a day. See 100 blogs in 100 days for information on how to submit your blog. Sounds like a good way to get your blog out there.

FedEx Logo & Trademark Issues

The Sneeze has an interview with Lindon Leader, The Man Behind the FedEx Logo. I also found an interesting discussion on the FedExKinko's rebranding at Typographica.

Nobody's Business comments on an article from Wired News, Furniture Causes FedEx Fits, about software developer Jose Avila who, short on cash, made furniture out of FedEx boxes (which are free). He then posted photos of his creations on his website. That caught the attention of FedEx lawyers, and correspondence insued. (via Walter Olson at Overlawyered)

Blawg Review

Blawg Review #19 is up at Patent Baristas. I am hosting Blawg Review #20 next week here at The Mommy Blawg, and I am pleased and honored to be sandwiched in between the snazzy, snazzy layout of the Patent Baristas and Carolyn Elefant's always helpful My Shingle. I've already gotten one submission. Keep 'em coming!

Site Update - Preview

I'm working on my blogroll. I accidentally re-published my blog before it was finished, so please ignore it for now with my apologies. Update coming soon.

Chandler, Arizona

News Flash: As of two days ago, the City of Chandler has suspended the "administrative directive" referred to below and "formed a committee to study the issue". However, it is an interesting legal question, even if it appears to be now moot.

Despite the recent trend of states and foreign countries (i.e. Ohio, Illinois, Scotland) to pass legislation protecting the right of mothers to breastfeed in public, the City of Chandler, Arizona, has decided to swim against the current:

Mothers who breast-feed on Chandler city property must cover up, go to a private spot or leave if someone complains. Refuse and they could face criminal trespassing charges.

The rule takes effect this week after the City Council made no objections to an "administrative directive" released Monday by Community Services Director Mark Eynatten.

...

Eynatten said Arizona law doesn't exclude nursing mothers who expose their breasts from "indecent exposure" prohibitions, and his directive conforms to that law.

It's also designed to give city employees a uniform policy on how to handle complaints without confrontation, Eynatten said.

He said city employees must now refer complaints about public breast-feeding to their supervisors. A supervisor will determine if the complaint is valid and if the woman's exposure is "unreasonably disturbing other members of the public."

The supervisor should "respectfully" ask the mother to cover herself or offer her a private place to feed the child. If she refuses, she will be asked to leave the building or grounds. Failure to leave could result in criminal trespassing charges, Eynatten said.

Source: Breast-feeding moms told to cover up or be cited

Additional News Links:
Breast-feeding debate rages in Chandler
Debate puts breast-feeding in the spotlight
Rule on nursing babies canceled

Hawthor the Cow Goddess responds with a series of cartoons (1, 2, 3, 4)

The legal implications of this are twofold. First, federal law prohibits discrimination of this sort on federal property ("Notwithstanding any other provision of law, a woman may breastfeed her child at any location in a Federal building or on Federal property, if the woman and her child are otherwise authorized to be present at the location." Sec. 630, Consolidated Appropriations Act, 2005, apparently not codified). This is not a Starbucks or a Walmart, whose corporate policies are shaped to a great extent by public opinion. This is a governmental entity creating regulations regarding governmental property. Yes, I know there is no federal preemption issue here, but surely someone could think up a bona fide legal argument. Is the city receiving federal funds? Parks & recreation grants? If a private business' purchasing a bottle of catsup can invoke the commerce clause, and the first amendment (despite the fact that it clearly states "Congress shall pass no law") is applied to state and local governments, surely someone can get creative with this one. Ok, you all know I have barely thought about constitutional law since the first year of law school, so go easy on me here.

Second, many breastfeeding law experts and advocates maintain that breastfeeding in public is always legal, and legislation "allowing" breastfeeding in public places merely clarifies the right, rather than creating it:

It is important to remember that women have a right to breastfeed in public whether there is a law or not. The purpose of legislation is NOT to legalize it, but to clarify the fact the fact that women have the right to breastfeed in public, or that it is not a criminal offense, such as indecent exposure. Thus, if you are in a state that does not have legislation, you still have the right to feed your baby where you go. Breastfeeding legislation often exempts breastfeeding from any criminal statutes, such as amending an indecent exposure or nudity law. More progressive legislation creates a new law that sets forth a woman's right to breastfeed. Some of the laws provide mothers with legal recourse if they are told to stop breastfeeding, such as New York, which has the strongest law in the nation, where a right to breastfeed as one of a person's civil rights was created.

Elizabeth N. Baldwin, Esq. and Kenneth A. Friedman, Esq., A Current Summary of Breastfeeding Legislation in the U.S.

Although breastfeeding is a woman'’s intrinsic right, which should not have to be declared, in our bottlefeeding society, it becomes protective for state legislation to assert that the act of breastfeeding is both permissible and the entitlement of a mother.

State Legislation that Protects, Promotes, and Supports Breastfeeding: An inventory and analysis of state breastfeeding and maternity leave legislation, United States Breastfeeding Committee (PDF)

What many people do not know is that breastfeeding in public is legal in every state. A mother does not need to "cover up" or go somewhere more private. More than half of states have laws specifically protecting this right, but even in those that do not, it is still legal to breastfeed in public.

Breastfeeding laws fall generally into two categories. Some states simply exclude breastfeeding in public from the state's criminal laws regarding indecent exposure or obscenity, so that a woman cannot be charged criminally for nursing in public. In these states, a woman who is harassed for breastfeeding in public can sue under other laws, such as those prohibiting sex discrimination in places of public accommodation.

Nancy M. Solomon, Breastfeeding in Public Is a Basic Civil Right

On the other hand, Douglas Reid Weimer, Legislative Attorney and author of Summary of State Breastfeeding Laws and Related Issues, Congressional Research Service Report for Congress (PDF), gives a much more conservative interpretation:

Nursing mothers have asserted rights in a variety of lawsuits –under a number of legal theories, some successful -- but the centrality of state breastfeeding laws in defining legal protection is evident.
...
It should be considered that if a state does not have specific legislation authorizing or affirming breastfeeding in public, it does not mean that breastfeeding in public is necessarily prohibited. Local ordinances, which are not considered in this report, may deal with the issue. Likewise, an exemption from jury duty by a nursing mother which in some states may be covered by state statute, may also be covered in other states by court rules, local practices, or regulations.

Some courts, interpreting state law in states where there is no specific right to breastfeed in public, have rejected arguments based on constitutional rights, civil rights, equal protection, etc. However, all these cases, as far as I know (and I haven't really looked at the case law) involved businesses and not governmental entities.

I suspect, however, that just as public pressure has convinced the City of Chandler to back down, at least for now, legislation will be proposed and likely passed by the Arizona state legislature at the earliest available opportunity. Too bad. Sounded like a good test case.

Related resources:
Rep. Carolyn Maloney's Breastfeeding Legislation Website
50 States Summary of Breastfeeding Laws, National Conference of State Legislatures
Are your breasts bound by law? by Virginia L. Marchant, Mothering Magazine (Jan.-Feb. 2005)

Wacky Patent of the Month

It's the Wacky Patent of the Month, Apparatus for Facilitating the Birth of a Child by Centrifugal Force, U.S. Patent 3,216,423.

Blawg Review #18

Blawg Review #18 is up at The Common Scold. It's baseball themed. Enjoy!

4 women arrested in breast-feeding protest

This is rich: "Four women were arrested while protesting a hospital's policies on breast-feeding, which the demonstrators said undermines efforts of mothers who want to nurse their babies." They were charged with trespassing. The hosptial has a policy of removing newborns to the hospital nursery for 4 hours soon after birth. And also giving new moms sample packs of formula, but almost all hospitals do that.

Miscellaneous Items

The Chicago Tribune reports that Illinois has passed a law automatically exempting breastfeeding moms from jury duty. In most states, persons who are the primary caregivers for young children are exempt from jury duty anyway, but this law comes into play in the situation, for example, where a mom works full-time and pumps.
8/5/05 ETA: Don't miss the discussion over on PrawfsBlawg

Speaking of which, this is World Breastfeeding Week. Information on WBW from La Leche League, ProMom, and World Alliance for Breastfeeding Action.

Tom Mayo of the HealthLawProfs blog has some interesting comments on the Susan Torres case.

Blawg Review #17

Blawg Review #17 is up at The Greatest American Lawyer.

Ethan Leib of PrawfsBlawg posts that a federal judge in Nebraska has found that pregnancy is a disease.

Bill aims to limit inmate shackling

If I try to comment on this news item, I'll get really angry. So I'll just quote a little:

In California and across the country, female prisoners are routinely shackled for most of labor and immediately after childbirth -- a longstanding practice opposed by a growing number of legislators and even a spokesman for the conservative guards union. A bill introduced by Assemblywoman Sally Lieber that would ban the practice has moved from the Assembly into the Senate.
...
The practice of shackling laboring inmates is defended by the state Department of Corrections and Rehabilitation, although there is no known record of an escape or assault by a prisoner giving birth. All inmates, male and female, who leave state institutions for community hospitals are shackled and guarded by at least one armed correctional officer. That includes the 185 female prisoners on average who give birth each year in California.
...
In general, the women ride to and from the hospital in handcuffs. Inside, they can be shackled to a bed during early labor, a critical period when walking and changing positions assists the progress and comfort of delivery. Per department policy, after giving birth, they have one leg shackled to the bed for the duration of their stay.

Callahan, a first-time offender from Merced, said the shackles were more than emotionally traumatic -- they made her physical recovery more difficult. "You have to be stuck to a bed even though the doctors say you need to get up and walk because your stomach was cut open," she said. "They uncuffed me because a doctor and a nurse had given direct orders for me to walk around."

Between 1998 and 2004, California prisoners gave birth to 1,300 babies, the majority conceived before their mothers' sentencing. Most of those babies went home with relatives or into foster care.

Pregnant inmates get extra milk with meals and the services of a "doula" -- a trained labor coach who runs weekly childbirth preparation classes and provides bedside support during delivery.

According to prison officials, hospital doctors decide when a patient is in "active labor," and that is when restraints are removed. But that stage is ill-defined.

"Active labor means contractions that are regular, forceful and coordinated, and that can go on for 36 hours," said Corey Weinstein, a correctional medical consultant who serves on the board of the San Francisco-based California Prison Focus. Women interviewed by advocacy groups report being restrained until the pushing stage, the last part of active labor, a practice Weinstein described as "barbaric."

Legal Guide for Bloggers

Oh, and how come I'd never come across the Electronic Frontier Foundation's Legal Guide for Bloggers? I didn't read very deep, but looks like a great resource. Aside from the FAQs, check out the link to "Cases" at the top of the page.

BlogHer 2005

The BlogHer 2005 convention was this weekend. Lawyers Denise Howell, Carolyn Elefant, Jill Fallon, Cathy Kirkman, and others attended. Kevin O'Keefe ("Real Lawyers Have Blogs") comments.

Tons and tons of live blogging, of course. There were a couple sessions on legal issues and one on mommy blogging. Reading the pre-conference posts from the mommy bloggers, the main concern seemed to be "what do I wear to the conference since everything in my closet is one size too small for my postpartum body and I haven't shopped anywhere but Target for the last 3 years so what's in style these days, anyway?" I can sympathise completely.

Sounds like it was fun and productive. Maybe next year.

Woman Ticketed for Nursing at Park

Rocky Mountain News reports that a woman visiting Carter Lake in Colorado was ticketed by a park ranger for (discretely, in fact) nursing her baby, allegedly violating a local ordinance against "knowingly (exposing) one's genitals in a public place". The citation violates Colorado's year-old statute protecting a woman's right to breastfeed in public. Though the ticket was dismissed, it apears she is still awaiting an appology. Thanks to Natural Family News for the article.

Story from Denver Channel 7.

Unwed dads would pay for births under plan

Missouri lawmakers have a plan to make unwed fathers reimburse the state for Medicaid costs related to the birth of their children, reports The Lebanon Daily Record (via Blogging Baby). Opponents of the proposal say the plan is unworkable, and may cause women to forgo prenatal care rather than help the state go after their boyfriends, as well as discourage voluntary acknowlegement of paternity by the fathers.

Can't child support be made retroactive to before the baby's birth? Just a thought.

Blawg Review #16

Blawg Review #16 is up at Objective Justice. Sean writes:

When I signed up to host Blawg Review a few months ago I really had no idea if there was going to be anything interesting to discuss the week I would be hosting. Unfortunately, as you all well know, nothing of any consequence happened this week. That is, if you don't think that the first Supreme Court nomination in years is of any import.

I love his sense of humor. From the Ayn Rand quote at the bottom of the page, I take it that "Objective Justice" is a reference to Objectivism. Which reminds me, I want to go back and read The Fountainhead. It's been awhile, and when I read it for the first time in high school, I skipped over the socio-economic discussion. Too boring for me then. Not now.

Happy Birthday, Dear Mommy Blawg

My blog is two years old today. Can't believe I've been blogging so long! My introductory post is here. Never turns out quite the way you expected it to, does it?

When I started this blawg two years ago, I was a relative newcomer to the blogosphere. Really, I had only read a few blogs and most of what I knew about blogging came from print media. Not that I am a newbie by any means; on the contrary. I was using the Internet before the World Wide Web as we know it today even existed. My first emails were sent from a UNIX interface and shortly thereafter I learned about PINE and ELM and used them for several years. I read newsgroups using rn and trn, and searched out information using Archie and Veronica. My first web browser was LYNX, a text-only browser; this was before the days of GUI browsers (and PC operating systems, for that matter) (you Mac, OS/2, and Amiga users can gloat now). Most of you have no idea what I am talking about. But I digress.

So it took me a little while to find my "voice". At one point, I considered re-launching my blog as an information-only, narrow-topic, no-personal-information-included blog. I'm glad I didn't. While I greatly respect blawgs that focus on one practice area, and agree that it can be a great marketing tool, it's just not me. I like to read blogs that have some personal content, though not ones that are all personal content. I just can't stand reading those livejournal and xanga blogs that let you know which Flintstone vitamins they ate this morning. But if I'm going to read a blogger on a regular basis, I like to know a little about their personality and what's going on in their life. A little, but not too much.

Anyhow, that debate became a moot point when I launched The Baby Blawg, my online pregnancy journal. I find that I'm much more comfortable posting personal content over there. And my blogging focus has narrowed considerably without my doing so intentionally, as I become more knowledgeable about and interested in certain things.

Sometimes I look at my hit count and despair, because my daily average is so low. I do have the occasional huge spike, though, like the time The Volokh Conspiracy linked to me. It is tempting to go back and see what I wrote on the days when I got more hits. I want to be read, but I don't want to pander to an audience, or be ratings-driven. I would also like to have more comments and feedback. I wrote what I thought was a great question about Doula Liability and even submitted it to Blawg Review #15, and got no comments. Not a single one.

From the emails and comments I've received, I surmise that The Mommy Blawg has three major types of readers. First are, of course, the lawyers, who are my natural audience despite my occasional utter lack of legal content. I assume most of them have me on RSS feed anyway, so they can pick and choose. The second group is blogging mommies, typically conservative Christian homeschoolers, whose blogs I read also. Don't believe for a minute that the mind of a stay-at-home mom turns to mush; there is some amazing theological and philosophical blogging going on out there. Third are the birth junkies, those who (like me) care about things like access to midwifery care, the politics of birthing, and healthcare policy. They span a broad range of political and religious ideologies.

I want to give some credit. First on the list is Tom Mighell. Surprisingly, I had never heard of inter alia or the Internet Legal Research Weekly until I got an email from someone saying they saw my blog on Tom's site. But it was the articles he wrote in the print media – Texas Bar Journal, Dallas Bar publications, etc. – that actually introduced me to blogging. Recently I went through a file of clippings I had accumulated with useful links, internet resources, etc., and was surprised to see how many of them were written by Tom. I also want to thank Kevin Heller for being supportive, and the blawging mommies such as Mommies at Law and Bag and Baggage's Denise Howell for inspiration.

What does the future hold? Well, on August 22 I'm hosting Blawg Review. I feel the need to spiff up my blog a bit before then, almost like cleaning house before guests arrive. I need to add a blogroll, maybe a tip jar. I’m not happy with the font size. I like the colors, but I'm using a very basic Blogger template – a blog skin or some graphics would be nice and would lend a more professional appearance. I welcome any suggestions.

Also, you would not believe how many blog posts I have either written out on paper or "saved as draft" and never published. I've got some catching up and purging to do.

That about wraps it up. I started this blog when my younger son was seven months old; now he's two and a half and another one is on the way. Maybe a year from now I will have something new; a new life direction, a new inspiration, a new passion. We will see.

Texas unveils unconventional sex offender screening

[Note: the articles linked to are not appropriate for children]

Via Blogging Baby comes a report from KXAN-TV36 that Texas will begin screening sex offenders to determine their level of - er - dangerousness:

The state says these new tests will help them weed out the low-risk sex offenders, like the 19-year-old who has sex with his 16-year-old girlfriend, from the pedophile who seeks sexual pleasure from children on the playground.

Thank goodness. I always feel a little sorry for people in the first category who get lumped in with people in the second category. Not very sorry, but a little bit. You are responsible for the consequences of your actions, but in this case it is a pretty stiff penalty that will follow you the rest of your life.

Hospitals cannot intentionally allow newborns to die

The Wisconson Supreme Court ruled last week against a hospital that refused to treat a premature baby. According to an Alliance Defense Fund story,

The son of Shannon Preston, an indigent pregnant woman, was born prematurely at approximately 23 weeks and three days' gestation. Because hospital policy prevented the employees from providing treatment to any baby born prior to 24 weeks' gestation, hospital staff intentionally refused to treat the baby boy, named Bridon. Two and a half hours after his birth, Bridon died.... The court ruled that the hospital was in violation of federal Emergency Medical Treatment and Active Labor Act (EMTALA), which provides that federally funded hospitals with emergency departments must examine and stabilize any patient who requests treatment.

Court's opinion available in HTML and PDF.

My opinion: Although I do think that hospitals should be able to set some guidelines for refusing to treat patients when it would be futile to do so, a 24-week cut-off seems arbitrary. I personally know a woman who has given birth to two 23-weekers, both of whom survived and are doing great, despite some minor medical issues. The World Health Organization, for example, places the lower limit of viability at 22 weeks and 500 grams, although there have been cases of babies surviving even earlier and smaller. I wonder if the outcome for the hospital would have been different had they adopted the lower standard. The Court's ruling doesn't seem to discuss the hospital policy specifically, though from the ADF article, I surmise it was addressed in the lower courts.

Blawg Review #15

Blawg Review #15 is up at George's Employment Blawg. It's quite creative. Check it out.

A little of this, a little of that

The Austin-American Statesman ran an article last week, Austin Midwives Face Tough Obstacles. Basically, several years ago the two Austin hospitals with nurse-midwifery practices ended the CNM's hospital privileges. This in a city which is known for being "crunchy". Here's my previous post on the subject, with some great links that still work.

WDSU-TV in New Orleans reports that a woman was told by the manager of a Starbucks in Metaire that she could not breastfeed in the restaurant. This despite a Louisiana law which deems it discriminatory for "a person to be denied the 'full and equal enjoyment of the goods and services in a public place on the grounds that the individual is a mother breast-feeding her baby.'" Starbucks continues to have problems with situations such as this, despite several well-publicised cases.

7/18/05 Edited to add this link: nurseatstarbucks.org

There will be a Nurse Out at Grapevine Mills Mall on August 7th in honor of World Breastfeeding Week. This is not a protest, just a public awareness event. Check out ProMom for events in your area.

Greasy Joan of Keel the Pot has some good thoughts on "lactivism" and modesty.

Hurricane Emily

Come on, Emily, bring us more rain!

Doula Liability

This legal question popped up on several of my newsgroups last week: Should doulas carry emergency childbirth kits when providing home labor support?

Factual background: A labor doula is a woman who supports a woman in childbirth. She provides emotional encouragement, coaching, education, and some physical support such as massage, hand-holding, etc. Doulas do not, however, perform any clinical or medical tasks, nor are they trained to deliver babies. They may, however, have had instruction in emergency childbirth and/or infant CPR.

An emergency childbirth kit can be purchased for about $25 on eBay and includes things like a bulb syringe, cord clamps, sterile gloves, disposable pads, etc.

Often, doulas may come to the mother'’s home to provide support during early labor before accompanying her to the hospital or, in the case of a homebirth, before the midwife arrives. It happens very rarely that when a doula arrives at the home, it is apparent that labor has progressed more quickly than expected, and baby is on his way, with no time to go anywhere. Should a doula carry an emergency childbirth kit in order to be prepared for such an event?

The legal issue: Could a doula, by carrying an emergency childbirth kit, be charged with "practicing midwifery without a license"; or, in states where direct-entry midwifery is not entirely legal/regulated, "practicing nurse-midwifery" or "practicing medicine without a license"? What steps could she take to protect herself from liability? Are "Good Samaritan" statutes applicable?

Here are some suggestions made by non-lawyer birth professionals:

• Call 911 right away, and follow the instructions given to you over the phone while you wait for help to arrive. (Nevermind that EMTs typically have less than 5 hours instruction in emergency childbirth, while a certified Doula has 16 hours of classroom instruction and 15 or more hours observing actual births prior to certification. We'’re talking legal liability, not actual ability, here).


• Suggest that the parents themselves keep an emergency childbirth kit just in case. In fact, a doula could sell such a kit to her clients, and then repurchase it after the birth if it was not needed.


• Inform the parents that you are not acting in the role of a Labor Doula anymore, but as a concerned friend. Obtain their permission to assist the birth, or have them formally ask you for help.


• Do not accept payment for the labor support.


• Let Dad do the actual catching. This has the added benefit of keeping the Doula's name off the birth certificate.


• Make sure that parents have a birth plan which would state they were planning to go to a hospital. Preferably this would already be on file with the doctor or hospital.

Non-legal discussion centered around whether or not the items in the birth kit were necessary; i.e. it is not usually necessary to clamp the cord or suction the baby.

Personally, I think that some, if not most, of the above suggestions for reducing liability would be ineffective. So, I was hoping for some additional lawyer brains. Were any significant issues missed? What do you think?

Complete Hypocricy

WCNC News reports that a woman in Mount Pleasant, South Carolina who walked into a Victoria's Secret hoping to breastfeed her infant in a dressing room was told by a clerk "she might be more comfortable" in the restroom of a neaby store. As is par for the course, a nurse-in was staged, and legislation has been proposed. One woman at the protest is quoted as saying, "It's crazy that a national company who sells women's bodies says it's not OK to do with your body what God intended it to do."