The ACLU of NJ entered as amicus in a New Jersey family court case regarding the deprivation of a pregnant woman’s substantive due process rights when her husband (with whom divorce proceedings were in process) obtained an order to show cause providing that the Plaintiff “shall not travel more than 100 miles from Morristown during pregnancy, or after the birth of the parties’ child, without the express written consent of [her husband]” and also laying out child visitation protocols for the unborn child.
In its amicus brief, the ACLU-argued that courts have no authority to base any legal order on the best interests of an unborn child in New Jersey, an issue introduced within the larger context of a pregnant woman’s substantive due process rights. Throughout history, New Jersey’s courts have been unambiguous: government interference with a woman’s protected right to control her body during her pregnancy is not permitted and New Jersey courts have no jurisdiction over a fetus, as the court cannot ignore the personhood of the pregnant woman and treat the fetus, not yet born, as a separate legal person.
The ACLU further argued that the order to show cause placed unlawful restrictions on the pregnant woman’s fundamental rights, unconstitutionally limiting her right to travel before the birth, placing unlawful conditions on the manner and place of birth, and unlawfully giving her husband authority to make decisions about her medical care. As the Supreme Court held in Planned Parenthood v. Casey, women’s constitutionally protected liberties do not evaporate in pregnancy; to the contrary, “[a] State may not give to a man the kind of dominion over his wife that parents exercise over their children.”