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Texas Fights Fetal Rights After Forcing Prison Guard to Stay At Work Until She Delivered Stillborn Baby

by Matt Clarke

On August 18, 2023, the federal court for the Western District of Texas granted defendant officials with the state Department of Criminal Justice (TDCJ) only partial dismissal of a lawsuit brought by a guard who lost her unborn child after being repeatedly denied permission to leave work to go to a hospital with a pregnancy emergency.

Salia Issa was seven months pregnant and working at TDCJ’s Middleton Unit in Abilene on November 15, 2021, when she “felt pain that was similar to a contraction,” as the Court later recalled. Because leaving a post without first being relieved was a firing offense under TDCJ policy, she called her supervisor, Lt. Brandy Hooper, who promised to send relief.

Two minutes later, another supervisor, Lt. Desmond Thompson, called and told Issa that she “‘could not leave’ because ‘the warden said she could not leave.’” According to court documents, he “accused her of ‘fabricating her pregnancy emergency.’” Issa called Thompson repeatedly, complaining of pain and arguing that she needed to go to the hospital, but he refused to allow it.

Finally, two hours after her initial complaint, Issa was relieved. She drove herself to a hospital where she underwent emergency surgery, but her baby was stillborn. A hospital nurse told Issa that the baby could have been saved had she arrived sooner.

Aided by attorney Ross A. Brennan of Cronauer Law LLP in Buda, Issa and her husband filed suit against TDCJ, Thompson, Hooper and Middleton Warden Alanzo Hammond, accusing them of violating the Fourteenth Amendment’s Due Process and Equal Protection Clauses; Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq.; the Rehabilitation Act (RA), 29 U.S.C. § 794; and Chapter 21 of the Texas Labor Code. Defendants filed motions to dismiss which were referred to a magistrate judge, who prepared a report and recommendations on August 1, 2023.

Adopting that in its ruling 17 days later, the Court held that sex and disability discrimination claims under the Texas Labor Code must be dismissed, since the state enjoyed Eleventh Amendment sovereign immunity which it had not unequivocally waived. Likewise, Title VII and RA claims were dismissed because a single incident cannot show a hostile work environment. Due process claims and equal protection claims for violating bodily integrity, the right to be a parent and the right to life also failed.

Amazingly, Texas argued that a fetus was not a person under Roe v. Wade, 410 U.S. 113 (1973), which had not been overturned when Issa’s baby was stillborn—a position strongly at odds with the stance taken by leading elected state officials, who oppose abortion rights, not to mention Tex. Civ. Prac. and Remedies Code, § 71.0001(4), which defines an “Individual” to include “an unborn child at every stage of gestation from fertilization until birth.”

The Court steered clear of that apparent hypocrisy and reached its decision on other grounds, ruling that plaintiffs had shown only negligence, not intent to kill Issa’s fetus. Claims were allowed to proceed against TDCJ for Title VII disparate treatment and disparate impact, as was the RA claim of failure to accommodate, and the claim of interference with the family-care provision of FMLA. Also allowed to proceed was an equal protection claim for sex-based disparate treatment and impact. See: Issa v. Tex. Dep’t of Criminal Justice, 2023 U.S. Dist. LEXIS 132885; and 2023 U.S. Dist. LEXIS 146004 (W.D. Tex.).

The case has returned to the district court, with trial set for December 2024. PLN will update developments as they are available. See: Issa v. Tex. Dep’t of Criminal Justice, USDC (W.D. Tex.), Case No. 1:22-cv-01107.  


Additional source: AP News

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Related legal cases

Issa v. Tex. Dep’t of Criminal Justice

Issa v. Tex. Dep’t of Criminal Justice