amicus brief theologians

7/27/2019 Amicus Brief Theologians

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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.



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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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26

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



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Rebecca S. Jones

603 Pontius Ave North

Seattle, WA 98109

Telephone: (425) 830-6211


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.



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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]

[email protected]

[email protected]

[email protected]

Elliott Ozment

1214 Murfreesboro Pike

Nashville, Tennessee

[email protected]

/s/ Eric Schnapper

amicus brief theologians

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