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Thursday, August 04, 2005

Nursing Mothers and Jury Duty

Apparently, in some states nursing mothers are exempt from jury duty.  Governor Blagojevich of Illinois says

[W]hen a woman is nursing, her privacy and comfort must come first.

I can think of a much better rationale for the exemption: It simply isn't possible to accommodate a baby during a trial.  Babies cry.  They poop.  They need to be put to sleep on schedules.  They need to play.  If a woman is breastfeeding, her baby needs to be with her.  And we don't want the state telling mothers to stop breastfeeding during trial.

[Hat Tip: Blogging Baby, who adds some thoughts of her own.]

Posted by Hillel Levin on August 4, 2005 at 09:48 AM in Odd World | Permalink


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Um, just a quibble, but it's an Illinois law not a Chicago law. Breastfeeding moms downstate can take advantage of the new rule too. Personaly, I'd like to be called for jury duty, but as a law student and a breastfeeding mother, I doubt I'd get to serve.

Posted by: Rayne of Terror | Aug 15, 2005 11:32:35 AM

Just a couple points to clarify:

Most states have exemptions for people who are caregivers for young children. Texas, for example, exempts those who "[h]ave legal custody of a child younger than 10 years of age and the person's service on the jury requires leaving the child without adequate supervision". So the case where a mom must bring her baby to court or hire a babysitter in order to serve on the jury would not come up in those states - she would be exempt anyway without the new law. The situation covered by the law more often occurs when mom works full time with baby in child care or with a nanny and mom pumps. Sometimes, however, women who have attempted to be excused because of breastfeeding have not been made aware of the existing exemptions. Lots of stories at http://www.familyfriendlyjuryduty.org/

Next, I want to take issue with some of Kate Litvak's statments: "It only takes 15-20 minutes with an electric pump." For many women, yes; for others it could take 30-45 minutes, depending on the age of the baby and the force of the woman's let-down. "It also doesn't have to be done every two hours. Newborns eat every two hours, but an average woman can pump every three hours, make it four or five for women with older babies." That's true, but the baby is always more efficient at draining the breast than a pump. A woman who pumps less often than her baby eats will eventually experience a drop in production. Of course, this will not happen after only a few days of jury duty, but for a mom who has been nursing every 2 hours, skipping more than a feeding or two in a day can cause plugged ducts or mastitis pretty quickly. Trust me.

Anyway, I think it goes beyond mere "inconvenience" or "hardship". We are talking about a person's right to receive nutrution when that person is solely dependent upon the body of another person to provide that nutrition. A baby and his nursing mother, particularly for the first 9 months or so, should be viewed as a biological and sociological unit, much as are a woman and her unborn child.

Posted by: The Mommy Blawger | Aug 4, 2005 11:31:15 PM

Yes, I sensed that. Americans in general are very in-your-face with their bodily functions – public burping, farting, teeth-cleaning, scratching, loud nose-blowing, licking their fingers in restaurants, feet on desks in offices… all as a matter of fundamental right. But notice that public breastfeeding hasn’t yet caught up with this “body liberation” trend, so plenty of people would be unproductively distracted by a breastfeeding woman in a jury box. This last citadel won’t stand for long, I am sure.

Posted by: Kate Litvak | Aug 4, 2005 6:08:04 PM

As for your latter point, you've just explained why I disagree with Blagojevich's (perhaps unintended) message. In my view, women who nurse are nothing like people who have to pee a lot.

Posted by: Hillel Levin | Aug 4, 2005 5:42:39 PM

We do agree on many points, but not all. First, I don’t think that Chicago’s law is a step in the right direction. If the law cannot exempt all equally-inconvenienced (if you prefer, “hardshiped”) people equally, it should not exempt women alone. Laws that give women special perks ensure that women are never perceived as equals. If a woman’s nursing is so detrimental to her ability to serve on the jury, it surely restricts her ability to work elsewhere, right? How can you entrust a company, a tank, or a legislative seat to a person who is biologically incapable of spending a few days in a jury box?

Second, I frankly think Blagojevich’s story of “privacy” isn’t so bad as compared to the alternatives. It basically suggests that lactating women can perform any mental tasks just fine; we are giving them a break simply because don’t want to expose their bodily functions in public. This isn’t any more demeaning than excusing from public exposure other individuals whose bodies temporarily require privacy (say, because of incontinence, bladder control problems, seizures, etc.), but do not otherwise restrict those people’s ability to perform.

Posted by: Kate Litvak | Aug 4, 2005 5:30:28 PM


Your points are well-taken, again. And I mostly agree with you, I guess. Except for two facts in dispute and one policy consideration.

The facts. In my (limited) experience, it isn't difficult at all to establish hardship as a full-time caregiver or small business owner. You show up in court on the appointed day, you give the judge your story when she asks, and she lets you go. Sometimes, you just need an affidavit and don't even need to show up in court. However, it is certainly possible that different judges treat similar circumstances differently, and I may be colored by my own experiences. So that's just a minor disagreement between us.

As for your friends and the OB/GYN, I know of no OB/GYN who works 7 days a week, 24 hours per day. Surely any pregnant woman understands the possibility that "her" OB/GYN will not be on call when she goes into labor. The only exception I can think of is a small-town or boutique OB/GYN who limits her patients to those she can effectively expect to serve. Even there, presumably the OB/GYN gets sick, takes vacation, or whatever else--and has a call group to back her up. Similarly, I know of very few jobs, even those related to customer-service, where the loss of a day from work presents a true problem for the company. Like I said, everyone expects to get sick, to take vacation, and yes, to do jury duty. There may be exceptions, but I think they are few and far between; to the extent they exist, they can effectively be dealt with on an ad hoc basis (as they currently are), unless there are clearly identifiable categories of people for whom service provides a unique hardship. In that category, I'd include various kinds of caregivers and possibly small business owners. Which brings me to what may be the real point of contention between us.

The more substantive disagreement, I think, is on what the policy should be. You and I seem to agree that nursing mothers, caregivers, and small business owners (and perhaps others who have similarly compelling hardship claims) should be treated similarly. I'm not sure which direction you want it to go, but my own preference would be for a relatively easy out from jury service for them, limiting the exemption to a deferment where possible (e.g. for nursing mothers, but likely not for small business owners).

So Chicago's new law is a step in the right direction from that vantage point. Am I disturbed that the legislature hasn't gone the whole way and applied the law to every case in which you and I agree it should be? Only insofar as I would hold legislatures to entirely unrealistic expectations. The fact is that breastfeeding is in the news. Every week I read something about someone getting ticketed (absurdly) for nursing in public; every mall I got to touts its special nursing rooms; businesses too. So it doesn't surprise me that the legislature reacts to the sentiment and gets in on the act. And it hardly disturbs me either. Should we advocate in favor of applying the law to others where appropriate? I guess so. But call me hard-hearted; it just isn't way up there on my list.

My reaction to Blagojevich was that he could be taken as suggesting that nursing is properly done in private, a position with which I strongly disagree. And I suppose I was thinking about my own experience with our newborn when I suggested that the baby has to be with the mother, since my wife chose to do just that for the first three months or so.

Posted by: Hillel Levin | Aug 4, 2005 3:17:50 PM

1. How to pump during trial: during the breaks! It only takes 15-20 minutes with an electric pump (which can be cheaply rented from a hospital). I’ve heard about those invisible things, but they creep me out for some reason. It also doesn’t have to be done every two hours. Newborns eat every two hours, but an average woman can pump every three hours, make it four or five for women with older babies.

2. Even in large organizations, many employees are often irreplaceable. Their absence is particularly harmful when employees are personally involved with customers. Our friend, an OB-GYN at a big hospital, was recently called to a jury duty. Do you think his laboring patients won’t care whether they are given a substitute?

3. My point wasn’t that we should treat nursing women worse than other people. Quite to the opposite, I was arguing that nursing women should be treated exactly like everyone else. If establishing “hardship” is difficult for a small business owner or a person taking care of her disabled spouse (which it is), it should be equally difficult for a nursing woman. Not more or less difficult. Just equally difficult.

4. My bigger point was that people routinely promote policies ostensibly in support of starving babies. When pressed closer, they admit that it’s not about starving babies at all. It’s about convenience or wealth of some social group, and usually there is no reason to increase convenience or wealth of that particular group at the expense of others. Nursing mothers would like to be left alone – but so is everyone else. The rest of us just can’t wave cute little babies over our heads to soften judges’/legislators’ hearts.

Posted by: Kate Litvak | Aug 4, 2005 2:52:39 PM

Perhaps something has been lost in translation here. First, I do wonder how a woman is going to pump breast milk while listening to a trial. I am told that there is a new gizmo that allows it to be done unobtrusively, so perhaps it is possible. And I would certainly support a move towards more accommodating jury systems.

What I am suggesting is a tension between ardent support for public nursing (either through pumping or direct feeding, at work or elsewhere) and the claim that nursing mothers should be exempted because they ought to nurse in private. So I offered a different rationale. You don't like it? Okay.

Your point about emergency room doctors and the like is well-taken, but only to a point. In large companies and organizations, it is understood that there will be days when someone cannot make it to work. There are call groups, extra coverage, temps, and so forth to pick up the slack. Inconvenience? Yes. But the solution is built into the system (at a cost, of course).

A nursing mother who is at home with her child without backup care is much more akin to an owner and proprieter of a small business. Such businesspeople are routinely excused (and sometimes are exempted) from jury service. For them, it isn't an inconvenience, it is a hardship; financial and otherwise. Similarly, people who are caregivers for children and the elderly are routinely excused from service (whether there is a written law for it or not). Again, for them it is a hardship.

You want to argue that it is less of a hardship for nursing mothers than for proprieters of small businesses on the grounds that millions of women have made different arrangements with their lives that allows them to pump at work and have someone else care for the kid? Fine. I'd suggest that such women (my wife among them, by the way) should not be exempt from jury service. I assume that the law is actually aimed at nursing women during their maternity leave or if they are full-time caregivers. But I don't assume that they ought to be exempted because we think they ought to keep their breasts out of Barbara Walters' face.

Oh, and by the way: such exemptions should take the form of deferments rather than complete exemptions.

Posted by: Hillel Levin | Aug 4, 2005 1:57:57 PM


You started with the story of “children will starve if mommy has to serve on the jury.” Then, you’ve moved to the story of “parents will be hugely inconvenienced by the jury duty.”

But how are parents different from all other people who are “hugely inconvenienced” by the jury duty? And how are they different from all those people whose absence at work or at home may cause harm to others? Like emergency room doctors who leave their hospitals understaffed to sit on juries? Like small business owners who have to shut down operations for days, jeopardizing their livelihood, as well as livelihood of their employees? Like people who take care of elderly parents or disabled spouses?

Having to hire a babysitter and figure out the pumping-and-storing routine is awfully inconvenient, but inconvenience alone can’t be enough to excuse people from the jury duty.

(And yes, it *is* possible for a working woman to figure out the pumping routine away from home. Millions of women have done it quite successfully, thank you very much.)

Posted by: Kate Litvak | Aug 4, 2005 1:41:33 PM

You are right, DK. Let me amend. If the mother is breastfeeding, the baby either has to be there, or she has to pump every two-four hours during the day. If she pumps, there must be some place to store the milk. Oh, and if she is a stay-at-home mother or on maternity leave from her job, she has to prepare a bunch of bottles in advance for the baby and find someone to care for it. (Oh, and this is assuming the parents have taught the kid to use a bottle, which some parents do not.) It is impractical during a jury trial for these accommodations (whether it be bringing the kid to trial or making all of the other arrangements for the kid to stay at home) to be made, particularly since the mother can just return to jury duty after the child is weaned.

The reason I chafe at Blagojevich's claim about "privacy" is that it suggests that women should be nursing in the privacy of their own home or in little rooms where no one can see them. Certainly women may choose to do so, but I don't want to send the message that it is only appropriate that they do so.

At the same time, there is a tension here, because we WOULD like the jury system to make accommodations for child care, nursing, and other demands of work and parenthood (for both mothers and fathers).

But you are right: the child doesn't have to be there.

Posted by: Hillel Levin | Aug 4, 2005 12:45:42 PM

I dont get your "if the women is breastfeeding, he baby has to be there" point. Many nursing mothers i know work full time. They pump milk and have the baby bottle fed that milk. If they can go to work, they can go to a jury. The better explenation would be the one they cite which is that these sort of accomodations are difficult to make and planning is hard when you are going to a new place, etc. That more jsutifies the law then "babies need scheduling" - after all, many of these parents may be gone from the house and their baby for that time of day anyways.

Posted by: DK | Aug 4, 2005 12:30:37 PM


I didn't mean to suggest that you were calling the law unreasonable, I am just saying that despite the "underinclusive" arguments that I'd expect Prof. Balkin to make, I think the law is substantially related to several important state interests. Thus, I think it would pass intermediate constitutional scrutiny, even on the Gov.'s rationale.

Judging by Prof. Balkin's arguments re: restricting males from purchasing the "morning after pill", I would assume that he thinks the law is also unconstitutional. I think both laws would/will hold up.

Posted by: MJ | Aug 4, 2005 11:24:18 AM

I certainly didn't mean to suggest that the law was unreasonable. I just thought that Blagojevich's rationale was weaker than an alternative. I am not entirely comfortable with the law, insofar as it sends a signal that nursing mothers ought to be at home in "privacy" and "comfort," but that isn't to say it is unreasonable. Note also that Illinois has a law specifically permitting women to nurse in public.

Posted by: Hillel Levin | Aug 4, 2005 10:06:19 AM

Seems like reasonable law to me, quite possible of passing intermediate scrutiny. Over at Balkinization, Prof Balkin recently opined that a law with a similar aim (singling out one sex for different treatment)was "clearly unconstitutional".

Thoughts from JB or others?


Posted by: MJ | Aug 4, 2005 10:01:27 AM

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