I wrote on this blog about the backlash across the country by the government against pregnant women seeking to protect fetuses against pregnant women's behaviors: drug use etc.
And that control got really bad, see my blogs here and here.
Of course, at the background of Roe v Wade, a woman could abort the fetus without asking permission of the government, but obviously if she kept the pregnancy, she was penalized for it by government control over her body during the pregnancy.
In New York, the Family Court Act, Article 10, the statute that gives LIMITED authority to the government to intrude into family lives of people, states that it is designed to protect a "child under 18 years of age".
A child is a "child born alive".
Yet, practices of social services in New York were quite different.
As everywhere else in the country, social services in New York targeted pregnant women, especially those whose newborn were born with drugs in their bloodstream.
Drugs got into their bloodstream obviously before they were "born alive", where it is clear that drugs got into the newborn's bloodstream before birth.
That includes legitimate drug use for pain in labor and in pre-labor surgery, social services persecute pregnant women for use of pain medication for themselves prescribed by physicians, too.
But, whether the drug use was legitimate or illegitimate, it occurred before the child was born alive - and thus is off bounds for Family Courts to pursue specifically as "child neglect", it is "fetal neglect", and fetuses are not included into the protection of the Family Court Act.
Finally, after, as reported, 15 women's rights proponents filed an amicus brief to the appellate court, an intermediate appellate court in New York, Appellate Division 1st Department, has ruled that fetuses are not included into the protection of the Family Court Act.
That happened when a judge in the lower Family Court went out on a limb and, without any tricks that social services use in such situations (they wait until the child is born - and only then bring a child neglect petition, which says a lot about the desire to protect children, waiting until the harm is done) - the judge bluntly stated that he is specifically protecting a fetus, under the Family Court Act.
The 1st Department overruled the lower court that went on and on citing to incorrect decisions of various Family Courts that obviously never came to be reviewed on appeal, as it often happens in such cases (assigned counsel wouldn't appeal, and parents do not have resources or ability to file notices of appeal on their own).
The 1st Department reviewed the case on the merits even though it has become moot because the father by that time was coerced to enter the so-called "adjournment in contemplation of dismissal", and the adjournment period has expired, so the petition was dismissed.
By the way, the appeal that was granted by the 1st Department was, by the way, the father's appeal denying his motion to dismiss the petition even though the women's rights groups filed amicus curiae briefs clearly on behalf of the mother - who did not appeal.)
What bothers me in this whole story is, first, that the mother was made a Respondent in that action at all - because the father strangled HER with the fetus inside her.
So, the government was targeting to punish the victim of a criminal assault for that assault - makes a lot of sense, and such actions were already prohibited by a federal court in Nicholson v Scopetta, which the trial court was aware of and cited in his decision, see description of that case and of the history of social services targeting women, victims of domestic violence, as respondents in child neglect proceedings.
The way to proceed under such circumstances was to charge the man with criminal assault on a woman, not to charge the woman in Family Court for being strangled by a man while being 8-months pregnant.
And, second, the story of social services in New York targeting women for "neglecting fetuses" is not over, even with a court decision that directly stated that fetuses are not included into the protections of the Article 10 of the Family Court Act, from which it logically follows that women in New York cannot be targeted with child neglect and abuse petitions for what occurred before the birth of their child.
Reportedly, social services expressed a resolve to still be able to file petitions for child neglect once the child is born.
With stubbornness even in the face of a declaration that "the child" does not mean the "fetus" within the jurisdictional meaning of the Family Court Act Article 10, somehow social services believe that if the act of neglect occurred when the child was a fetus, stripping them of jurisdiction, jurisdiction can somehow be restored if they word the petition as if they are NOW protecting a child, based on the facts that the child was neglected as a fetus.
So, be prepared to see a lot more of the same cases in New York Family Courts.
