Professor Laura Kessler’s new article, Miscarriage of Justice: Early Pregnancy Loss and the Limits of U.S. Employment Law, forthcoming in the Cornell Law Review, begins with the graphic and powerful retelling of five miscarriages. Her five miscarriages. She does not mince words; she does not, as she writes, believe that the experiences can “sound and look pretty.” (P. 1.) She soon reveals the reason for personal storytelling, which is to challenge the silence that surrounds pregnancy loss and to shine a light on this common yet often hidden experience.
Although there is copious scholarship on pregnancy and work, there is very little in the legal literature on miscarriage, specifically, and employment law. In mapping how the laws governing the workplace make miscarriage invisible, this article asks us both to see miscarriage as part of workers’ lives, demanding accommodation, as well as to think about how workplaces contribute to pregnancy loss. Below, I explore three important theoretical and practical contributions of the article before turning to the difficulty of defining pregnancy, miscarriage, and abortion.
First, Miscarriage of Justice notes that federal legislation—like the Pregnancy Discrimination Act of 1978, the Family and Medical Leave Act of 1993, the Americans with Disabilities Act of 1990, and the Occupational Safety and Health Act of 1970—ostensibly should address miscarriage but, in practice, “courts and agencies often refuse to interpret these statutes in obvious and reasonable ways to provide meaningful equality to workers when they suffer the common experience of miscarriage.” (P. 5.) For example, Professor Kessler invites us to consider miscarriage as an issue of occupational safety. She takes up the risks to a pregnancy for those who are in minimum-wage and physically-demanding jobs, such as warehouse workers, low-paid health workers, and package delivery workers. She notes that courts routinely ignore these workers, and, in so doing, ignore the “low-income women and women of color [who] are more likely to work in sectors of the economy involving taxing physical labor.” (P. 52.) This invisibility an entire lass of pregnant worker vulnerable under existing law.
Professor Kessler urges Congress to pass the Pregnant Workers Fairness Act, a bill that provides reasonable workplace accommodations for pregnancy and related medical conditions, antiretaliation and privacy protection for employees’ health information, a right to paid sick leave, and occupational safety standards that could mitigate the risk of miscarriage. One might question the feasibility of the Act passing, or the efficacy of any new federal legislation, given courts’ stunted interpretations of existing federal legislation. But the broader point should not be missed: federal employment non-discrimination and occupational safety standards, in practice as well as on paper, offer incomplete and inadequate protections for workers experiencing pregnancy loss.
Second, Professor Kessler’s comprehensive treatment of the employment law of miscarriage will appeal to diverse audiences. Professor Kessler marshals sources from several disciplines, including medicine, psychology, and sociology. By examining the mental and physical consequences of miscarriage, the article expands the academic field of work-and-family conflict into the field of health. This opens new lines of thought about what workers who have experienced pregnancy loss should expect of their employers. Scholars and lawyers, as well as courts and agencies, will find the article’s detailed doctrinal and statutory analyses illuminating.
Third, Professor Kessler joins contemporary conversations that relate to miscarriage. The piece de-genders pregnancy by discussing the broad effects that miscarriage has on pregnant people, their partners, intended parents, and even surrogates. It examines the health and emotional impacts of miscarriage well beyond the experience of physical pregnancy loss. For instance, one-fifth of those who experience miscarriage become “symptomatic for depression and/or anxiety, with symptoms typically lasting [ ] years, impacting quality of life and subsequent pregnancies.” (P. 8.) Finally, the article discusses pregnancy loss and the right to a healthy pregnancy without implicitly relying on the rhetoric of abortion regret or fetal personhood. This is difficult territory to navigate, and the article treads this ground thoughtfully.
On the last point – the relationship between miscarriage and abortion – I have a constructive criticism, which by no means takes away from the force of the piece. At times, it is not clear if Professor Kessler’s focus is miscarriage or pregnancy generally. I read Professor Kessler as suggesting that miscarriage could be a lens through which to examine larger questions related to pregnancy. But a tough issue with which the article does not grapple is how we define miscarriage; indeed, Professor Kessler’s analysis provides an opportunity to reconsider the existing distinction between miscarriage and abortion.
As states move to criminalize abortion after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe and Casey and stripped constitutional protection for pre-viability abortion rights, what abortion encompasses is far from clear. Early accounts suggest that providers do not understand when they can provide care during a miscarriage; when can providers intervene when a miscarriage is in process? The federal statute governing emergency care (EMTALA) preempts state law, and most state bans include a medical emergency exception in any case. But the questions prompted by abortion bans post-Dobbs get at the broader issue of how pregnancy, miscarriage, and abortion interrelate and are defined.
In the opening personal narrative, Professor Kessler resists a pregnant/not pregnant binary; she writes “miscarriage is a process, a slow motion train wreck….what does it mean for the person who is miscarrying? It is a surreal experience that is hard to describe, this being pregnant but not pregnant.” (P. 3.) Resisting an understanding of pregnancy as an on-off status could be an important contribution of the article. Miscarriage is not just common. It is also complicated and, as Professor Kessler so aptly demonstrates, our laws do not pay enough attention to that complexity.
