Nine Stories of Baby Ninths: Eight—My Blood, My Business

[This is the eighth in a series of nine posts on nine stories of how Baby Ninth Amendments made a difference in real cases. They’re part of the lead-up to the publication of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters

Maddie Brown was in an impossibly tragic situation. The local district attorney had charged her 20-year-old daughter with murder for killing her father (and Maddie’s husband) with rat poison. And then the daughter shot Maddie herself. The 47-year-old was rushed to the hospital where she received surgery. Her doctors also recommended a blood transfusion, but she refused. Why? According to her faith as a Jehovah’s Witness she objected to receiving the blood of others into her body, invoking verses from the books of Acts (15:20) and Leviticus (17:10).

Perhaps that would have remained her own choice. But the D.A. had a problem. Maddie was the only witness, the D.A. claimed, in either prosecution of her daughter—the murder of the father and the shooting of Maddie herself. Thus, the D.A. feared that if she did not receive a blood transfusion she would die, and let her daughter walk free.

Maddie did not object to testifying. As for the blood that her doctors claimed she needed to live, though, she continued to object. So the D.A. went to state court to force a transfusion. And at first the trial judge agreed, ordering a transfusion that then went forward. Maddie then received further surgery—which she did not object to—but her doctors also recommended another transfusion, which Maddie also refused. This time Maddie’s lawyers were able to go to the Mississippi Supreme Court and ask for emergency relief to prevent the transfusion—which the court rendered with a short order. And then a few weeks later, on October 30, 1985, the court made the relief permanent, explaining its reasoning. The court did so partly on religious liberty grounds under the state constitution. But it also used the state’s Baby Ninth.

For the religious liberty section of the opinion you can read it yourself, In re Brown. This was a few years before the U.S. Supreme Court’s Smith decision which would have made Maddie’s claim much harder if the state had followed the Supreme Court’s reasoning under the First Amendment for its own religious liberty protections. But the court ruled that Maddie’s faith must be accommodated.

That wasn’t where the court stopped, however. It also asked whether the forced blood transfusion violated her right to privacy. How was this right protected? Via Mississippi’s Baby Ninth, Article III, Section 32: “The enumeration of rights in this constitution shall not be construed to deny and impair others retained by, and inherent in, the people.“ The court explained that “[t]his right of privacy, whether perceived as emanating from the common law or natural law, is given constitutional status” by that language.

The court was emphatic that Maddie’s case was fundamental to the freedom that our system protects: “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” It also stated that although Maddie refused her transfusions because of her religion, it didn’t matter why she refused them: “The point, however, is that the right to privacy is so personal that its protection does not require the giving of a reason for its exercise. That one is a person, unique and individual, is enough.”

This was not absolute, and the court noted that the right could be overridden “in cases of great and imminent public danger.” But this wasn’t that, it said. Interestingly from our post-COVID-19 vantagepoint, it distinguished the famous 1905 case Jacobsen v. Massachusetts, where the U.S. Supreme Court said fining a person for refusing a smallpox vaccine was constitutional. saying that this isn’t a situation where a disease could spread, just one where one witness is in jeopardy.

I couldn’t find out what happened to Maddie Brown—or her daughter—after the ruling, but her case had legs. It’s been cited numerous times in right to privacy cases. But it should be remembered for a different reason too: It demonstrates a court taking the actual language of a Baby Ninth Amendment seriously. It means what it says.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.