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Pregnant Pause

March 22, 2021

Pregnant women are perfectly capable of doing all kinds of stuff — work, pose for Instagram, make objections. So why is the condition delaying trial for Theranos founder Elizabeth Holmes?

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Please bear in mind that I’m not recommending this — but we’ve heard of an effective way to avoid going to trial: pregnancy. If all else fails, get your client pregnant and ask for a delay.

In case you missed it, the trial of Elizabeth Holmes, the entrepreneur accused of selling a fake blood test product, is apparently going to be delayed because the defendant is pregnant. The news stories contain no information about how or why this happened or with whom it happened. You’d think TMZ would be on top of this, but so far no reports. Shouldn’t Oprah be on the case?

This seems pretty suspicious to me but, then, I’m a professional cynic. Tactical pregnancy seems like a reasonable concept to me and it probably shouldn’t.

If this is a tactic that becomes commonplace, I recognize the equal rights issue. If women can get pregnancy delays, why can’t men? OK, I do know the answer to that question, but in the working world, you may be able to get paternity leave. I can envision class actions if there are denials of paternity trial delays.

What if you’re a lawyer representing a client who needs a trial delay? Should you advise pregnancy? If so, how do you get the client (or the client’s brand-new partner) pregnant? Does it matter if the pregnancy results from a timely sperm donation?

If a court finds a pregnancy was intentional for the purpose of delay, does it matter? The defendant is still pregnant. Maybe jail for contempt can be postponed until the kid goes to college.

But all of the above questions are irrelevant because it makes no sense to delay a trial for pregnancy. Pregnant women are perfectly capable of doing all kinds of stuff — work, pose for Instagram, make objections. I’ve seen these things happen. A trial should be no problem.

The real problems come after birth. Think diapers and breastfeeding in court, and a defendant who can barely stay awake.

We’re going to end up with a precedent for really speedy trials for pregnant defendants.

Reading challenge. Those of you who were seriously annoyed by a U.S. senator who insisted that the 628-page Covid relief bill be read in full out loud for no readily apparent reason before it could be voted on should take heart — things could be worse.

You could, for example, have to sit in on the Colorado Legislature where every bill, no matter how long, has to be read at length on two different days in each house unless there is unanimous consent to skip the drama.

I learned this last week because the Colorado Supreme Court had to issue a ruling — presumably not out loud — on the way those bills can be read. “The question before us,” said the ruling, “is whether uploading a bill to multiple computers and using automated software to simultaneously give voice to different portions of the bill at a speed of about 650 words per minute complies with the reading requirement.”

You may now pause to consider the maturity level of people on both sides of this issue.

In case you’re wondering what sparked the lawsuit, it was, naturally one guy, a state senator, deciding he’d enjoy being hated. The bill was 2,023 pages long — a recodification of the state’s “Professions and Occupations” law.

Senate staffers spent about three and a half hours reading the thing before the Senate secretary, probably on the brink of insanity, called in the computers.

The court ruled against the talking computers because, apparently, no one could understand what they were saying. Not everyone is fluent in ones and zeroes. The court declined to decide, however, just exactly how proposed Colorado laws should be read (by humans or otherwise).

Expect a lot of creativity and litigation over this in the years to come. Any judge hearing these cases should require that all briefs be read aloud in court.

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