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On a warm November night, Salia Issa had just begun her shift as an Abilene prison officer when she felt the intense pain of what she believed was a contraction.

Seven months pregnant, Issa said she quickly alerted her supervisors. She told them she needed to go to the hospital but knew prison policy wouldn’t allow her to leave her post until someone could replace her.

No one came for hours.

Issa kept calling for relief, but her supervisor repeatedly refused her, even telling her she was lying, according to a federal lawsuit filed against the Texas Department of Criminal Justice and prison officials.

“You just want to go home,” the supervisor allegedly told her.

Eventually, two and a half hours after the pain started, the expectant mother said she was allowed to leave the Middleton Unit. As quickly as the pain would allow her, Issa drove to a nearby hospital, where doctors rushed her into emergency surgery after being unable to find a fetal heartbeat. The baby was delivered stillborn.

If Issa had gotten to the hospital sooner, medical personnel told her, the baby would have survived, the lawsuit claims.

Nearly a year later, Issa and her husband, Fiston Rukengeza, on behalf of themselves and their unborn child, sued TDCJ and three of Issa’s supervisors — Brandy Hooper, Desmond Thompson and Alonzo Hammond. They argue the state caused the death of their child by violating state and federal laws as well as the U.S. Constitution, and they are seeking money to cover medical costs and funeral expenses and to compensate for pain and suffering.

But the prison agency and the Texas attorney general’s office, which has staked its reputation on “defending the unborn” all the way up to the U.S. Supreme Court, are arguing the agency shouldn’t be held responsible for the stillbirth because staff didn’t break the law. Plus, they said, it’s not clear that Issa’s fetus had rights as a person.

“Just because several statutes define an individual to include an unborn child does not mean that the Fourteenth Amendment does the same,” the Texas attorney general’s office wrote in a March footnote, referring to the constitutional right to life.

For more than two decades, in legislation passed by lawmakers and defended in court by the attorney general’s office, Texas has insisted “unborn children” be recognized as people starting at fertilization. And although it has traditionally referred to all stages of pregnancy, from fertilized egg to birth, as an unborn child, the state repeatedly referred to Issa’s stillborn baby as a fetus in legal briefings.

It’s a stark shift in tone from the state’s self-proclaimed status as “a nationwide leader in the protection of the unborn” in the anti-abortion fight. A few months after Issa lost her unborn child, now-suspended Attorney General Ken Paxton said in a press release that he would “continue to fight tirelessly for the rights of the unborn.” Paxton had not yet been impeached and was still at the helm of the agency when the state’s motions in Issa’s case were filed.

The state’s argument relies largely — but not exclusively — on the timing of the tragedy. Issa lost her unborn child seven months before the Supreme Court overturned Roe v. Wade in the famous Dobbs decision.

“This Court need not weigh into the difficult question of whether, post-Dobbs, an unborn child possesses constitutional rights under the Fourteenth Amendment,” wrote Benjamin Dower, with the attorney general’s special litigation office, in a January filing. “Even if he or she does, that right was not clearly established on November 15, 2021.”

The change in tune when it’s the state accused of wrongdoing is striking, said Mary Ziegler, a legal historian focused on abortion and fetal rights at University of California, Davis. She said she didn’t understand why the state opted to fight the lawsuit instead of taking the opportunity to say, “We don’t treat unborn children like this in the state of Texas.”

“It seems sort of weird for the state to say, ‘We’ve spent decades saying Roe v. Wade was a horrible violation of human rights. But back in 2021, this violation of human rights allowed us not to get this employee relief,’” she said.

In a court response, Issa’s lawyer shot back that the state’s arguments were “nothing more than an attempt to say—without explicitly saying—that an unborn child at seven months gestation is not a person.”

The attorney general’s office did not respond to questions for this story. Issa’s lawyer said he and the family were declining to comment outside of legal filings.

A TDCJ spokesperson said Wednesday that at this early stage in the legal process, the agency hasn’t had an opportunity to present its side of the story. Instead, the state has only argued against the validity of Issa’s legal claims.

In filings so far, state officials haven’t disputed any of the family’s claims. The agency did not answer questions about whether there has been discipline for the supervisors or any actions taken by the agency after the loss, saying it could not comment on pending litigation.

In the months after losing her child, Issa first filed an internal discrimination complaint with TDCJ, according to the lawsuit. But after months without any response from the agency, she and her husband filed a complaint in federal court in October.

Aside from violating the unborn child’s right to life and bodily integrity, the challenge claims TDCJ and the supervisors violated Issa’s basic rights and discriminated against her based on her sex and pregnancy. The lawsuit also argues TDCJ officials violated the provision of the federal Family and Medical Leave Act that entitles employees to take emergency leave to care for their children.

Represented by the attorney general’s office, as is the expectation for all state agencies that find themselves in court, TDCJ and Issa’s supervisors are asking a federal judge in the Western District of Texas to toss the lawsuit.

Despite decisions that “ultimately resulted in tragic consequences” and supervisorial conduct that was “blunt to the point of rudeness,” Dower wrote, the claims don’t prove the agency or its employees broke the law.

Texas prisons are notoriously tough places to work, and the agency is chronically understaffed. Still, the lawsuit claims there were at least three officers available to step in for Issa when her medical emergency began. Issa’s supervisors directed them to stay in the prison office, Issa said, and the on-duty nurse was never called to attend to her.

Last week, in a preliminary court ruling, U.S. Magistrate Judge Susan Hightower recommended that District Judge Alan Albright keep the case alive, at least in part. She suggested the district judge take up the claims involving discriminatory treatment based on Issa’s pregnancy, rejecting TDCJ’s argument that Issa’s request to leave work “immediately” was unreasonable.

“Issa’s request to leave work to go to the hospital while she was seven months pregnant and experiencing a pregnancy-related medical emergency was reasonable,” the magistrate said.

Regarding fetal rights, Hightower said the court should reject the claims related to the unborn child’s right to life and bodily integrity, but without weighing in on whether a fetus is a person. Instead, she said the claim didn’t clear the constitutional bar in showing the state intentionally caused the death of her unborn child.

However, she also urged Albright to allow the argument that TDCJ officials violated the FMLA provision that allows employees to leave to care for their sons or daughters under the age of 18. In that claim, “fetal personhood,” or the idea of a fetus being legally considered a person, is front and center.

Issa and her husband say in court filings that she was seeking to leave work because her unborn child was suffering from a serious health condition, including a lack of oxygen and difficulty breathing during labor.

“Issa’s unborn child was past viability and its heartbeat had previously been detected,” the couple’s filing states. “This overwhelmingly supports finding the unborn child to be a ‘son’ or ‘daughter’ given the significance the State of Texas has attached to such benchmarks.”

Texas argued that the claim is invalid because Issa was only seeking leave to care for herself, not a child. And, they note, she was able to take leave after the stillbirth.

“The sole grievance is a 2.5-hour delay in granting permission to leave work mid-shift,” the state said.

The state later clarified that it was arguing that the family care provision does not apply to an unborn child. Ziegler said the inconsistency as to when Texas considers a fetus a person opens the window to the complexity of fetal personhood claims and motivations.

“Even if the state thought that’s what the FMLA meant, why would you be fighting this to the extent you are, if you really believe this is [about] rights for the unborn child?” she said.

Campaigns by abortion opponents for fetal rights have been happening in the country since the 1960s, and the debate is beginning to set the stage for what the next round of legal fights will look like in a post-Dobbs world.

Although Texas doesn’t have a specific personhood law, fetal rights are already on the books in some ways. Performing an abortion can land you in prison for murder, for example. Georgia has taken the lead by using such rights not only in punitive measures but to provide benefits for pregnant people — like tax credits and child support eligibility.

But the more the idea takes hold, the more complications arise. Some states have criminalized women for child endangerment because of drug use during pregnancy. Dallas County officials tossed up their hands when a pregnant woman argued she should be able to drive in the high-occupancy vehicle lane.

So far, the U.S. Supreme Court has skirted the issue. It refused to take up a related case out of Rhode Island in October, and Justice Samuel Alito wrote in the Dobbs ruling that it “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.”

Now, Ziegler says, we see Texas arguing against fetal rights when it’s being sued for the death of an unborn child.

“If states start to move toward embracing fetal personhood, we’re going to have no idea how they’re actually going to behave,” she said. “There’ll be a possibility that the state will embrace protecting unborn children in ways that don’t help pregnant people carrying them.”

Eleanor Klibanoff contributed to this report.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/08/11/texas-prison-lawsuit-fetal-rights/.

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