Thursday, December 24, 2015

Missouri v. Coleman

Opinion handed down June 16, 2015
“I need you to do me a favor. . . .  Put the money in this bag;” these and other words and actions led Gary Leland Coleman to a conviction for second-degree robbery.[1]  On appeal to the Supreme Court of Missouri, Mr. Coleman argued that the evidence was insufficient to support a finding that he forcibly stole money with the use, or threat of use, of force.[2]  The court, on the facts of the case, and because there is an implicit threat of force when money is demanded without right in a bank, affirmed Mr. Coleman's conviction for second-degree robbery.[3]

Saturday, November 7, 2015

Eaton v. CMH Homes, Inc.

Opinion handed down May 26, 2015
        In Eaton v. CMH Homes, Inc. (“CMH”), Mr. Eaton contracted with CMH to purchase a manufactured home.[1]  On or around September 27, 2012, Mr. Eaton sued CMH for alleged defects in the home.[2]  Mr. Eaton’s complaint alleged fraud, negligence, breach of contract, and negligent misrepresentation.[3]
        CMH denied the allegations and moved to dismiss or stay the court action.  Further, CMH moved to enforce the arbitration agreement section of the contract by compelling arbitration between the parties.[4]  Mr. Eaton replied, arguing the arbitration agreement was unconscionable.[5] 
        The trial court overruled CMH’s motion to dismiss or stay the court action and compel arbitration.[6]  On appeal, the Missouri Court of Appeals for the Eastern District affirmed the trial court’s holding.[7]  Upon transfer, the Supreme Court of Missouri held that the trial court erred in refusing to compel arbitration.[8]  The court noted that the anti-waiver clause of the arbitration agreement was unconscionable, but the clause did not render the entire agreement unenforceable.[9]

Friday, November 6, 2015

Gateway Taxi Management v. Division of Employment Security

Opinion handed down May 12, 2015
        A deputy of the Division of Employment Security (“DES”) determined that Gateway Taxi Management, d/b/a Laclede Cab Company (“Laclede”), owed unemployment taxes because Laclede’s drivers had performed services for “wages” and were “employees” of Laclede.[1]  Laclede appealed the DES decision to the appeals tribunal, which reversed the determination.[2]  Thereafter, the DES appealed to the Labor and Industrial Relations Commission (“LIRC”), which reversed the appeals tribunal’s decision on the basis that Laclede’s drivers were employees.[3]  The instant decision followed, after the court of appeals issued an opinion and the Supreme Court of Missouri granted transfer.[4]  The Supreme Court of Missouri affirmed the LIRC’s ruling after finding that competent and substantial evidence supported the LIRC’s holdings that Laclede paid wages to its drivers for their services and that the drivers were employees of Laclede.[5]

Thursday, November 5, 2015

Spalding v. Stewart Title Guar. Co.

Opinion handed down May 12, 2015
Landowner, Randy Spalding, sued titled insurer, Stewart Title Guaranty Company, for breach of contract and vexatious refusal to pay an insurance claim relating to a defective title sold to Spalding.[1]  Spalding purchased 419 acres with plans to construct a lake development within the area.[2]  However, a third party owned the title to one of the 419 acres, preventing the lake development.[3]  In response to the sale of the defective title, Stewart assessed $10,000 of damages pursuant to their title insurance policy, which Spalding alleged was inadequate.[4]  After a jury trial, the trial court entered an amended judgment for Spalding for over $1,100,000.[5] Stewart Title appealed the judgment contending various errors by the trial court.[6]  The Supreme Court of Missouri affirmed the trial court’s judgment, holding that Spalding’s claim was not barred by a five-year statute of limitations, expert testimony from Spalding’s appraiser regarding damages was admissible, and the jury was not confused or misled by jury instructions on damages.[7]  This Summary will address the issue of admitting the appraisers of damages as expert testimony.

Wednesday, November 4, 2015

State ex rel. Hewitt v. Kerr

Opinion handed down April 28, 2015

A former employee of the St. Louis Rams, Todd Hewitt, filed suit alleging age discrimination under the Missouri Human Rights Act.  The Rams then filed a motion to compel arbitration, and the Circuit Court for St. Louis County, under the Honorable Judge Kristine Kerr, granted the motion.  Hewitt then petitioned for a writ of mandamus seeking to prevent the circuit court from requiring arbitration.

Tuesday, November 3, 2015

Ambers-Phillips v. SSM DePaul Health Center

Opinion handed down April 28, 2015
In June of 2013, Shonda Ambers-Phillips was experiencing pain in her side and underwent exploratory surgery.[1]  Doctors discovered pieces of medical equipment that were left in her  abdomen from an operation she underwent in 1999.[2]  A few months later, Ambers-Phillips filed a medical malpractice claim against the medical center that employed the doctors who allegedly left the pieces of medical equipment in her abdomen.[3]  The trial court sustained the defendant’s motion to dismiss, citing the ten-year statute of repose contained in a medical malpractice statute, Missouri Revised Statutes Section 516.105.[4]
The Supreme Court of Missouri affirmed, holding: (1) the statute of repose is not subject to equitable tolling;[5]  (2) the statute of repose in Section 516.105 does not violate the Missouri Constitution’s Equal Protection Clause or Open Courts Provision;[6] and (3) Section 516.105 does not violate due process and is not an invalid special law.[7]  This Summary will focus on the first holding regarding equitable tolling.

Saturday, October 3, 2015

Torres v. Simpatico, Inc.

Opinion handed down March 25, 2015
The issue at the heart of Torres is the enforceability of a compelled arbitration clause contained in a franchise agreement.[1]  After some franchisees joined together in a putative class action against their franchisers and other individuals associated with their franchise system, alleging violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”),[2] the franchisers attempted to assert the individual arbitration clauses in the franchisees’ contracts.[3]  The district court granted the franchisers’ motion to compel arbitration.  The franchisees then appealed from the district court’s ruling, arguing that the arbitration clauses were unconscionable and unenforceable, but the Eighth Circuit affirmed the district court’s decision.[4] 

Friday, October 2, 2015

U.S. v. Robinson

Opinion handed down on March 25, 2015[1]
Fred Robinson opened a non-profit charter school in St. Louis in 2006.[2]  In addition to opening the charter school, Robinson had been employed by the Parking Division of St. Louis Treasurer’s Office (“Parking Division”) to inspect parking meters since 1990.[3]  Following suspicious employment records, the Federal Bureau of Investigation conducted an investigation into his employment in late 2009.[4]  The FBI’s investigation, which consisted of many interviews and GPS tracking, concluded that Robinson did not perform his job for Parking Division.[5]  In addition, Robinson was found to have misappropriated the charter school’s funding.[6]  Robinson was charged with eight counts of federal charges, including one for wire fraud (related to the misappropriation of funds for the charter school), two for federal program theft related to the charter school, and five for federal program theft related to his employment by Parking Division.[7]  Before trial, the district court denied Robinson’s motion to suppress the GPS evidence, Robinsons’ motion to sever counts 1-3 and 4-8, and Robinson’s objection to the jury’s composition under Batson v. Kentucky.[8]  At trial, the district court also rejected Robinson’s challenges to certain testimony and parking-related jury instructions.[9]  After the jury found Robinson guilty on all counts, Robinson appealed.[10]  The United States Court of Appeals for the Eighth Circuit affirmed the district court’s rulings on all issues and charges.[11]

Thursday, October 1, 2015

Lyons v. Vaught

Opinion handed down March 24, 2015[1]
 A former University of Missouri - Kansas City (“UMKC”) part-time lecturer filed a 42 U.S.C. § 1983 action against UMKC administrators for retaliation, alleging that they discontinued the lecturer’s appointment due to his speech regarding student athlete favoritism.[2]  The lecturer claimed his protected speech contributed to this adverse employment action taken against him, which would be unlawful due to the First Amendment concerns of public employees.[3]  The Eighth Circuit held that, because the lecturer failed to allege administrators' awareness of the protected speech, it was not clearly established that the adverse employment action was unlawful, and administrators were therefore to be given qualified immunity.[4]

Wednesday, September 30, 2015

Andra v. Left Gate Property Holding, Inc.

Opinion handed down Feb. 24, 2015
The plaintiff, Issiah Andra, purchased a vehicle through an eBay online auction service on July 15, 2011.  The defendant, Left Gate Property Holding, Inc. (“Left Gate”) was the seller of the vehicle.  Left Gate was a “top-rated” seller on eBay and headquartered at a seventy-acre facility in Stafford, Texas.
Upon taking delivery of the vehicle, Mr. Andra noticed several inconsistencies between the vehicle’s actual state and what the eBay listing had described.  Left Gate agreed to pay for the necessary repairs, but failed to do so.  Mr. Andra ultimately filed suit against Left Gate in the Circuit Court of St. Louis County.  Left Gate argued that the Missouri trial court did not have personal jurisdiction to hear the case.  The trial court agreed with Left Gate and dismissed the action for lack of personal jurisdiction.
The Supreme Court of Missouri[1] reversed the trial court’s decision and remanded the case, holding that because of “Left Gate’s substantial, long-term business transactions in Missouri as well as its alleged fraudulent misrepresentations, telephone and mail correspondence, and continuing warranty obligations directed toward a Missouri resident[,] . . . Missouri may assert personal jurisdiction over Left Gate.”[2]

Friday, September 4, 2015

Labrayere v. Bohr Farms, LLC

Opinion handed down April 14, 2015
Several landowners (“Appellants”) filed suit against Cargill Pork, LLC (“Cargill”) and Bohr Farms, LLC (“Bohr” and, together, “Respondents”) for temporary nuisance, negligence, and conspiracy allegedly arising from Respondents’ large-scale hog operations.[1]  Appellants’ temporary nuisance claim sought an award for damages arising out of the loss of use and enjoyment of their properties.[2]  The trial court entered summary judgment in favor of Respondents.[3]  On appeal, the Supreme Court of Missouri affirmed the trial court’s judgment.[4]  The court determined that Missouri Revised Statutes Section 537.296 was constitutional and only authorized recovery for diminution of rental value or documented medical conditions arising from temporary nuisance – not for damages due to the loss of use or enjoyment of property.[5]  Further, the court found that the trial court did not err in denying Appellants’ damages for negligence and civil conspiracy, because these claims were dependent on the nuisance claim, and Section 537.296.6(1) precludes recovery in such a case.[6] 

Thursday, September 3, 2015

Moore v. State of Missouri

Opinion handed down April 14, 2015
After a conviction of second-degree assault of a probation and parole officer in 2010, Charles K. Moore  was sentenced as a persistent felony offender and received a fifteen-year prison term.[1]  Mr. Moore filed a pro se post-conviction motion appealing his conviction and sentence.[2]  The motion court subsequently appointed counsel to Mr. Moore.[3]  Pursuant to Supreme Court of Missouri Rule 29.15 (“Rule 29.15”), counsel was given sixty days from appointment to file an amended motion.[4]  The appointed counsel failed to file the amended motion within the allotted time period; however, the court ruled against the amended motion anyway.[5]  After an appeal and transfer to the Supreme Court of Missouri, the court remanded the case to the trial court, holding that, in the event an amended motion is untimely filed by an appointed counsel, the trial court shall rule on whether counsel abandoned the movant before ruling on the merit of any post-conviction motions.[6]

Wednesday, September 2, 2015

David P. Oetting v. Green Jacobson, P.C.

Opinion handed down January 8, 2015
A 1998 merger between NationsBank and BankAmerica prompted multiple class actions and resulted in a 490 million dollar global settlement.[1]  After multiple distributions and a decade of litigation, 2.4 million dollars of the fund remained.[2]  In September 2012, counsel for the NationsBank classes moved to terminate the case and make a cy pres distribution of these surplus settlement funds to Legal Services of Eastern Missouri (“LSEM”).[3]  The district court upheld this motion.[4]
The Eighth Circuit Court of Appeals reversed, however, finding that members of the classes had not been fully compensated, members should have been allowed to object or suggest alternatives for the cy pres distribution, and the charity was not the “next best” recipient usually required under cy pres principles.[5]

Monday, July 27, 2015

Survivors Network of Those Abused by Priests, Inc. v. Joyce

Opinion handed down September 8, 2014
Link to the Eighth Circuit Court of Appeals Opinion

Two Missouri nonprofit organizations, Survivors Network of Those Abused by Priests and Call to Action, as well as two of their members, challenged the constitutionality of Missouri’s House of Worship Protection Act.[1] Enacted in 2012, the Act prohibited “intentionally disturbing a ‘house of worship by using rude or indecent behavior . . . either within the house of worship or so near it as to disturb the order and solemnity of the worship services.’”[2] The district court granted summary judgment in favor of the state and city interpreting the statute to be content neutral because it prohibited all picketing and protesting.[3] However, the Eighth Circuit Court of Appeals reversed the district court’s judgment and remanded the case, holding the Act violated the First Amendment because a plain language reading of the statute distinguished acceptable expression based on content and was not narrowly tailored to serve the state’s interest in protecting the free exercise of religion.[4] 

Saturday, July 25, 2015

Argonaut Great Central Insurance Company v. Audrain County Joint Communications

Opinion handed down February 11, 2015
Argonaut Great Central Insurance Company (“Argonaut”) sued Audrain County Joint Communications (“Audrain”), claiming Audrain was negligent by failing to effectively monitor a security alarm panel, and thus caused or contributed to damages sustained to a grocery store building insured by Argonaut during a burglary and subsequent fire.[1]  Audrain filed for summary judgment claiming it was entitled to sovereign immunity because it was a Missouri state entity.[2]  The district court denied summary judgment determining Audrain waived its sovereign immunity when it purchased the insurance from Argonaut.[3]  Audrain then filed an interlocutory appeal challenging this order. The Eighth Circuit Court of Appeals dismissed the action in part for lack of jurisdiction, and affirmed otherwise.[4]

Friday, July 24, 2015

United States v. Gunnell

Opinion handed down January 12, 2015
In 2011, James Gunnell was arrested and eventually convicted of possessing fifty grams or more of methamphetamine with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 851.[1]  Gunnell moved to suppress evidence of approximately one pound of methamphetamine that was seized during a traffic stop, but the district court denied his motion.[2] 

The Eighth Circuit Court of Appeals affirmed, holding: (1) the initial traffic stop was supported by sufficient proximate cause and was not unlawfully pretextual;[3]  (2) the officers did not unlawfully prolong the traffic stop while waiting for the drug sniff dog to arrive;[4]  and (3) the drug sniff dog’s alert was sufficient to support a finding of probable cause to search Gunnell’s motorcycle for contraband.[5]

Tuesday, June 23, 2015

Campbell v. County Commission of Franklin County

Opinion handed down February 3, 2015
Labadie Environmental Organization and several citizens filed a petition for a writ of certiorari with the trial court after the County Commission of Franklin County approved and adopted zoning ordinances allowing Union Electric Company, doing business as Ameren Missouri, to build a coal-ash landfill adjoining the Labadie power plant.[1]  Following a judgment in favor of the County Commission and Ameren, Campbell argued that the court erred by dismissing Count I of their petition as the Commission “failed to conduct a legally sufficient hearing as required by Missouri Revised Statutes Section 64.875 prior to adopting the zoning amendments allowing coal-ash landfills” and that the court erred by ruling in favor of respondents on Count II as the “zoning amendments are invalid for failing to promote public health, safety, and welfare.”[2]  Agreeing with appellants as to Count I, the Supreme Court of Missouri reversed the trial court’s opinion and remanded the case for further proceedings.[3] 

Monday, June 22, 2015

In re Foreclosure Liens v. Realty Acquisition, LLC

Opinion handed down January 13, 2015

Beemer Construction (“Beemer”) and Seal-O-Matic Paving Company (“Seal-O-Matic”) both made improvements to property formerly owned by Sunnypointe, LLC (“Sunnypoint”).  Sunnypointe failed to pay Beemer and Seal-O-Matic for their services, and Beemer and Seal-O-Matic subsequently filed mechanic's liens against the property in 2007.[1]  That same year, Sunnypointe failed to pay its property taxes, and because of this, in 2010 the property was foreclosed on by the Jackson County Director of Collections.[2]  Notice of the tax sale was given by publication and by certified mail to Sunnypointe, but no personal notice was provided to Beemer or Seal-O-Matic.[3] Realty Acquisition, LLC (“Realty”) bought the property formerly owned by Sunnypointe LLC at the tax sale.[4]  Upon entry of appearance by Beemer and Seal-O-Matic in the tax foreclosure action, the trial court nullified the tax sale.[5] Realty ultimately appealed to the Supreme Court of Missouri.[6] The Supreme Court of Missouri affirmed the trial court's nullification of the tax sale.[7] The court held that when a lien has been properly filed as Missouri law requires, the lien-holder's name and address are reasonably ascertainable and therefore personal notice, rather than notice by publication, is required to satisfy due process.[8]

Saturday, June 20, 2015

Ben Hur Steel Worx, LLC. v. Director of Revenue and Fred Weber, Inc., v. Director of Revenue

Missouri Revised Statutes Section 144.054.2 allows tax exemptions for certain industry processes. The following cases involve the construction of this revenue statute in the contexts of building and road construction.

Friday, June 19, 2015

State of Missouri v. Thomas A. Ess

Opinion handed down January 13, 2015
In 2013, the defendant, Thomas A. Ess (“Ess”), was convicted of first-degree statutory sodomy,[1] two counts of second-degree statutory sodomy,[2] and one count of attempted first-degree child molestation[3] in the Circuit Court of Monroe County.[4]  Following his conviction, Ess filed a timely appeal hinged on three arguments – that there were questions of (1) juror misconduct, (2) instructional error, and (3) insufficient evidence to support two of his convictions.[5]  Regarding the question of juror misconduct, “Ess alleged Juror No. 3 committed misconduct by announcing during a lunch recess during voir dire that ‘this is an open and shut case’ after the circuit court instructed the panel members they were not to discuss the case or form an opinion before the case was submitted.”[6] 
The Supreme Court of Missouri reversed the trial court’s judgment and remanded the case, holding that “one juror committed misconduct through the intentional nondisclosure of a material fact related to the lawsuit[,]”[7] and that “there was insufficient evidence to convict Ess of attempted first-degree child molestation.”[8] 

Monday, May 11, 2015

Missouri Law Review Spotlight: David Ferguson

Hello, my name is David Ferguson, and I will be graduating from the University of Missouri School of Law in about five days . . .  is what I say in emails to perspective employers.  But that really is my name, and I really will be graduating this week.  Well, I won’t actually be there for the ceremony, but I’m getting the degree, so that’s the important part.  As a part of my commitment to the Missouri Law Review’s editorial board, in my capacity as an associate editor, I have been asked to write a short expose about myself.  I thought that would be sort of silly because it is unlikely that anybody cares, and if they do, they could take a look at my Linkedin profile.  Instead, I decided to come up with five tips for law school success (which have been presented in a very particular order). 

I don’t know that I am in any better of a position than any other 3L to provide these unsolicited suggestions.  But in my defense I will say that, by the time I am done, I will have (1) spent time at 3 law schools, (2) started out abysmally, but turned it around quickly (as evidenced by the fact that I have been given this assignment), and (3) been pretty successful as a collegiate intramural flag-football coach/player at two Power 5 conference schools.   Regardless, I recognize that this is sort of trite, but I always wanted to take a stab at it.  So here goes. 

1) Grades.  I’m sorry.  It sucks.  But it’s a fact of life for people enrolled in 99% of law schools (I think that’s the actual figure).  Maybe you don’t want to practice in big law.  Maybe you want to help cats (I know someone who is doing this).  But I can tell you for a fact that you are going to want to be in a position at the end of your 3L year where you have options, and the only way to do this is to have grades.   You don’t have to be at the top.  You probably won’t be at the top.  In fact, statistically speaking it is almost certain that you won’t be at the top (I’m looking at you), but you need to do the absolute best that you can.  From my relatively extensive experience at two law schools, law school success appears to have far more to do with diligent work ethic than intuitive cleverness. Of course having some of the latter is helpful (I have far less than I would like), but working your butt off is going to put you where you want to be, because from an aptitude perspective, the playing field is relatively even.

2) Law Review/JESL/JADR.  There's a lot of tedium involved in working on a journal.  However, my experience has been that the most beneficial aspect of working on a journal is learning how citations actually work, like really work, like in the weeds.  So do the Blue Book stuff; diligently.  In my experience it's unlikely that someone will ask you about Law Review/JESL/JADR in an interview.  But it's important.  So do it.  It is a box that must be checked. 

3) Don’t let anybody tell you, ever, not even once, that you can’t do what you want to do (within reason).  A good friend of mine from law school would often (still does) describe law school as a toxic environment.  I think that is an accurate description, to a degree.  Law school is incredibly competitive, especially if you are striving for relatively lofty ambitions: which most people are, that’s why they are in law school.   Of course all the really cool goodies are seemingly reserved for a handful of choice people; and to a degree that’s right.  There are certain things that you just aren’t going to be able to do in certain grade related circumstances (if you are at the bottom of your class you are not going to clerk for the circuit court); but from my experience, that category of unattainable grade related goody type stuff is far narrower than many people will lead you to believe.  If you want to work at a law firm in NYC after you graduate from the University of Missouri, but you finished your first semester in the middle of your class, that doesn’t mean you can’t still do that (although a lot of people will tell you that you can’t), it just means you’re going to have to work your ass off to make it happen.  It’s not going to come easy.  You’re going to have to network and follow every nook and every cranny and take chances and follow roads far less traveled, but at the end of the day, if you want it bad enough, you can do it: I mean you’re at the 59th ranked law school in the nation. 

4)  Surround yourself with people who believe you can do it.  This seems straight forward, but, in conjunction with #3, it is of vital importance.  Of course you’re family believes you can do this (I hope); I think it is the rare outlier law student who doesn’t have the full backing of his family, non-law school friends, and spouse/significant other.  However, outside of that group, finding people in the legal community, professors, advisors, legal professionals, who believe that you can do a thing, especially when that thing has not been done, or not by someone like you, can be far more difficult.  They are out there though, if you are committed, and believe that you can do the thing you set out for, people will recognize that; and those are the people you must gravitate towards if you want to succeed in an incredibly competitive goodie bag.  A touch of pragmatism can be good, you don’t want people who promise you the stars on a foundation of sand, but naysayers are a dime a dozen, counterproductive, and unnecessary.  As they say, haters are, in fact, going to hate.  

5) “It’s a tough galaxy.  If you want to survive, you’ve gotta know . . . where your towel is.”[1]  This advice is doubly important if you are being chased by Vogons. 

Never cared for conclusions.  Please review the preceding for more information. 

[1] The Hitchhiker’s Guide to the Galaxy (Popular Theater Release 2005) (original on file with the author); see Douglas Adams, The Hitchhiker’s Guide to the Galaxy 18 (1979) (“A towel . . . is about the most massively useful thing an interstellar hitchhiker can have.”).

Article Summary: Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation, and the State

Seattle University Associate Professor of Law Deborah Ahrens’ article Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation, and the State,  explores the incidence of pregnant mothers in the penal system and how the intersection of ingrained societal prejudices and the nature of the American penal system work together to perpetuate and exacerbate existing extra-penal constraints on pregnant women; thereby magnifying pregnancy-specific patterns of control in our society that reflect and reinforce societal norms regarding race, class, and gender.  Specifically, Ahrens argues that the unique “constraints imposed on pregnant and laboring prisoners differ in degree rather than in kind from those imposed on non-incarcerated women,” and that the treatment of pregnant mothers in the penal system is simply the most severe extremity of a spectrum of coercion and control imposed upon pregnant women from all sectors of modern American society by the legal and medical communities.[i]  In fact, Ahrens’ animating theme for her article’s methodological approach is that the treatment of incarcerated mothers should not be viewed as an aberration specific to the unique circumstances found in the penal context, but rather, that its place on the coercion spectrum serves an instructive role in highlighting extra-penal abuses, and that the analysis becomes clouded when one analyzes the treatment of pregnant women in the penal context as separate from the treatment of pregnant women outside of the penal context. 

In attempting to illustrate this proposed spectrum of coercion, Professor Ahrens’ article is essentially broken down into three parts: (I) prison-based pregnancy and birthing issues; (II) pregnancy and birthing constraints on non-incarcerated women; and (III) a conclusion which utilizes the finding in (I) and (II) to highlight the interconnected and overlapping nature of the intra- and extra-penal societal controls imposed on pregnant women in making choices regarding their pregnancies.  Additionally, Part (I) is broken down into three parts, (A) a description of the affected population, (B) a five-part analysis of the specific difficulties faced by incarcerated women who are pregnant, and (C) a brief discussion of genesis of correctional indifference to officially promulgated medical guidelines governing pregnant women, and Part (II) is also broken down into three parts, (A) discussing the uneven race and class based resort to legal constraints, (B) discussing the legal constraints on women generally, and (C) a three-part analysis detailing various methods of sub-legal coercion utilized by society to undermine pregnant women’s freedom in choosing their birthing options. 

Professor Ahrens begins Part I by pointing out that over 2,000 babies are born in prison every year and that pregnant mothers represent the fastest growing prison demographic in America.  She then goes on to illustrate the specific issues encountered by pregnant mothers in the penal context, looking first to issues encountered in (1) establishing pregnancy, and then turning to issues related to (2) accessing appropriate prenatal care, (3) dealing with complications and emergent deliveries, (4) establishing autonomy and safety during labor (specifically in the context of (a) the timing and method of delivery, (b) choosing pain relief options, and (c) the limitations placed on the incarcerated woman’s ability to choose who will and will not be in the delivery room), and (5) common difficulties encountered by women who have recently delivered babies while incarcerated.  This portion of her analysis is highlighted by the anecdotal accounts of pregnant prisoners reporting the various difficulties encountered in everything from persuading prison staff that they are pregnant, to persuading correctional staff that they need proper nutritional items or that they may in fact be giving birth.  Here, Ahrens’ authority is, of necessity, often sparse and heavily anecdotal, however, Ahrens points to some of the more severe abuses to ask the reader what these may reveal about the more hidden, less severe, but more common abuses occurring on a daily basis.  Finally, Ahrens concludes Part I by asserting that these endemic failures are not a function of a lack of officially published guidelines on these matters, but rather these failures represent indifference, or potentially ignorance, on the part of correctional bureaucracies regarding officially published guidelines by organization such as the American Public Health Association. 

Professor Ahrens begins Part II of her analysis be reiterating her belief that while the nature of their incarcerated status means that “[m]any of the constraints that incarcerated women face in childbirth are less peculiar . . ., [w]omen who are not incarcerated also experience limits on pregnancy and birthing choices and behaviors,” both through legal and extra-legal coercion.[ii] In supporting this assertion, and her underlying thesis that the treatment of pregnant women in the penal context is simply the manifestation of the most severe uses of societal coercion on a spectrum of control, Ahrens first points to the uneven resort to legal constraint on pregnant women in the extra-penal context.  Specifically Ahrens points out that “[a]ttempts to impose formal legal constraints upon the medical and life-style choices of pregnant women are much more likely to fall on those who live in poverty, belong to marginalized racial groups, or otherwise mark themselves as outside of the mainstream,” and that this focus is demonstrative of the overlap of the extra- and intra-penal societal tools utilized to control these demographic groups.[iii]  Next, Ahrens points to the actual legal constraints imposed on non-incarcerated women, from all walks of life, to illustrate that “the drive to regulate and constrain the pregnancy choices of expectant mother transcends issues of race and class.”[iv]  Here, Ahrens points to a study conducted by the National Advocates for Pregnant Women, that found that there have been 413 documented cases of legal intervention in the medical decisions of pregnant women regarding delivery choices between 1973 and 2005, to emphasize her point regarding the use of legal penalties as a coercive tool outside of the penal context on pregnant women from all demographic groups.  Finally, Ahrens concludes Part II by arguing that more subtle, “sub-legal” coercive techniques are utilized by the American medical and legal communities to motivate almost all women to make certain birth-related decisions, specifically in the context of C-sections and inductions, out of concern not for the wellbeing of the mother, but rather for  either (a) the bottom line or convenience of hospitals, doctors, or medical administrators, or (b) the avoidance of potential medical-malpractice liability by hospital administrators and their legal representatives.  Ahrens’ critique becomes somewhat vitriolic at his point, as she argues that the perverse incentives animating the legal and medical power centers in this relationship and chronic misinformation and under-information regarding pregnancy choices, cabin the ability of large numbers of pregnant American women to make truly enlightened fully informed birth-related decisions.

Professor Ahrens concludes by reiterating her underlying thesis regarding the spectrum of coercion, and the methodological utility of placing the treatment of pregnant inmates on that spectrum as opposed to relegating them to a separate analytical framework; thus, she asserts, enabling future researches to more clearly understand the coercive societal forces working both inside and outside of the penal context to limit the choices available to and the decision making ability of pregnant women in the days and weeks leading to childbirth. 

-          David Ferguson

[i] Deborah Ahrens, Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation and the State 60 (May 2013) (unpublished manuscript) (on file with the Missouri Law Review).
[ii] Id. at 40-41.
[iii] Id. at 42.
[iv] Id. at 44.