Audra McDonald, the star of Shuffle Along on Broadway, found herself pregnant last May, and, a month later, the show’s producers cancelled the remainder of the run, instead of bringing in another performer to take over her role. The producers had purchased an insurance policy from Lloyds, which reportedly covered them in case Ms. McDonald was unable to perform because of “accident or illness”. Putting aside whether the pregnancy was an “accident” (this will be litigated), is it an “illness”?
While there are laws and cases on this (one report says, “no“), a look back at perhaps the first case on this issue, involving my grandmother, Margaret Sanger, might be instructive.
One hundred years ago, on October 16, 1916, she opened America’s first birth control clinic in Brownsville, Brooklyn. After ten days, the police shuttered the clinic as being in violation of the Comstock Law, which prohibited a person “to sell, or give away, or to advertise or offer for sale, any instrument or article, drug or medicine, for the prevention of conception; or to give information orally, stating when, where or how such an instrument, article or medicine can be purchased or obtained.”
My grandmother freely admitted violating the law, as she dispensed birth control information to the women jamming her clinic, was convicted and was sentenced to 30 days in prison.
She appealed her conviction, an unusual step since she had admitted her guilt, and argued that what she had done was within the exception to the law, which stated: “An article or instrument, used or applied by physicians lawfully practicing, or by their direction or prescription, for the cure or prevention of disease, is not an article of indecent or immoral nature or use, within this article.”
The issue came down to, what is “disease”.
My grandmother argued that pregnancy was a “disease”.
The New York Court of Appeals in 1918 in Sanger v. New York first noted that my grandmother was a nurse and not a physician and thus was not covered by the exception.
Nonetheless, obviously in sympathy with what she was doing, the Court unanimously said:
“This exception in behalf of physicians does not permit advertisements regarding such matters, nor promiscuous advice to patients irrespective of their condition, but it is broad enough to protect the physician who in good faith gives such help or advice to a married person to cure or prevent disease. ‘Disease,’ by Webster’s International Dictionary, is defined to be, ‘an alteration in the state of the body, or of some of its organs, interrupting or disturbing the performance of the vital functions, and causing or threatening pain and sickness; illness; sickness; disorder’.”
My grandmother took this to mean that pregnancy was exactly that – an alteration in the state of the body, and an “illness”. She was thereafter free to open her birth control clinics, mostly unhindered by the law, though raids happened from time to time.
While insurance law and contract law are a world of their own, public policy, and dare I say common sense, can intrude, just as the NY Court of Appeals showed in 1918. Pregnancy is no walk in the park, or on stage. If the Lloyds policy didn’t specifically exclude pregnancy, shouldn’t they be on the hook?