A lawsuit that alleges the Vermont Department for Children and Families worked with private service providers to illegally obtain a pregnant woman’s medical information and interfere in the birth of her child can move forward.
But it will do so on much narrower grounds than initially sought by the plaintiff and her attorneys at the American Civil Liberties Union, who tried to use her case to make a larger point about how the state surveils people it believes aren’t cut out for parenthood.
Monica Allard, an ACLU staff attorney, nevertheless called Superior Court judge Benjamin Battles’ decision to allow the case to advance “a win for our client” and “a really big deal.”
“It really puts DCF and service providers in our state on notice that they cannot go ahead and collect confidential medical information without a valid reason,” she said.
The suit was initially filed in January on behalf of a single plaintiff, called “A.V.” It argued the state obtained A.V.’s medical information from providers without her consent — or knowledge — in an effort to interfere in the child’s birth and take custody of the infant.
The lawsuit alleges that, unbeknownst to A.V., staff at Copley Hospital began reporting on her delivery in real-time to social workers at DCF. Hospital staff went so far as to report updates on the dilation of her cervix, according to the suit, and worked with DCF to attempt to get a court order forcing her to receive a cesarean.
A.V. eventually consented to the procedure, and immediately after giving birth to her daughter, hospital staff took possession of the child, who was placed in foster care. The mother won custody back seven months later when a family court rejected DCF’s allegations about her mental state, the suit claims.
More from Vermont Public: ACLU claims DCF illegally surveils pregnant Vermonters considered 'unsuitable' for parenthood
The ACLU claimed A.V.’s experience was representative of a wider pattern, and that DCF maintained a so-called “high-risk pregnancy calendar” to track pregnant Vermonters deemed “unsuitable for parenthood.” It sought a judge’s order declaring such monitoring unlawful.
The state has not admitted any wrongdoing, although it has publicly acknowledged that it does monitor pregnant Vermonters it is concerned about, and that these parents-to-be may not know it. But in his order, Battles wrote that A.V. hadn’t actually established the calendar was to blame for improper actions the state may have committed .
The director of a homeless shelter A.V. had stayed at had contacted DCF with concerns, Battles wrote, and in response DCF contacted Lund, a nonprofit social service provider based out of South Burlington where A.V. sought counseling, and Copley Hospital, where she planned to give birth.
These claims, he wrote, indicated an “individualized response.”
“Such allegations fail to show that DCF’s involvement in plaintiff’s pregnancy was part of a
larger pattern or practice related to a ‘high-risk’ pregnancy calendar,” the judge wrote.
According to the ACLU, this is the first lawsuit brought under the state’s landmark Reproductive Liberty Amendment. The state sought to argue the new law only guaranteed a person’s right to an abortion, while the ACLU argued it extended to someone’s choice of how and when to give birth.
Battles wrote that while he did not agree with DCF’s “cramped reading” of the law, “the plaintiff’s argument goes too far.”
“The Act was intended to safeguard ‘existing rights.’ Plaintiff seeks to establish a new right to exclude the State from any role in a pregnant person’s birthing decisions, regardless of the risks involved to the fetus,” he wrote.
Still, Battles wrote that DCF needed to answer for the claims that it had accessed A.V. 's medical information before even filing a petition with the family court system to intervene in her case.
In a statement, DCF Family Services Division Deputy Commissioner Aryka Radke said she was “pleased” the court had dismissed all but two of the eleven claims made against the state.
“DCF expects it will be fully vindicated when the remaining two claims are reviewed in full. DCF is committed to preserving the confidentiality of the families and individuals with whom we work, and to providing the services Vermonters need to ensure healthy and safe families," Radke wrote.
Copley and Lund are both named as defendants in addition to DCF. A spokesperson for Lund, Sharon Lifschutz, declined to comment on “ongoing litigation.” Representatives for Copley did not respond to a request for comment.
