Bode Miller Changed His Mind And Hurt Pregnant Women's Rights Along With It

Mainstream media has painted Bode Miller as a dedicated father in a brutal custody battle. But where's the focus on his attempt to control the life and restrict the rights of a pregnant woman? Nowhere, says Soraya Chemaly.

Today, a New York family court will decide where the nine-month old baby of "America’s most decorated Alpine skier,” Bode Miller, and ex-Marine, Sara McKenna, will live. In anticipation, and clearly part of the public rehabilitation of Miller, Us Weekly told its millions of readers the “exclusive” story of his “legal struggles” to gain custody of his son. Here are the details the profile and interview provided:

• Miller, a “reformed bad boy,” talks about “love, loss, and fatherhood.”
• Miller is involved in a fraught custody battle for a child born after Miller and McKenna, 27, “had a fling.”
• Miller, 36, has “grown up” and is “ready to be a committed father.”
• Miller just wants to give the child “the opportunity to live a great life.”
• He believes that Nate, of whom he’s “temporarily lost custody,” “deserves every ounce of fight we have.” Nate is the name used by Miller and Us Weekly, even though his legal name is Samuel, and his mother calls him Sam.

Custody and relocation battles are sad, difficult, complicated, frequently acrimonious, and almost inevitably end up damaging parents and children alike. However, this case goes one step further because when Miller sued for “custody,” his paternity was not established, he had no relationship with McKenna and she was still pregnant. The magazine, and many others, didn’t explain or even touch on what the fact of her being pregnant means to all women who are pregnant or might one day be pregnant. Here is what Jennifer Peros, the interviewer, and Bode Miller did not touch on:

• After their “fling,” during which they had unprotected sex twice and Miller told McKenna she “had to have four of my babies,” Miller and McKenna broke up. Almost immediately after, he met professional volleyball player Morgan Beck (now Morgan Miller) and they got married.
• When McKenna found out she was pregnant and asked Miller to accompany her to an ultrasound appointment, he declined. He was clear about his lack of interest, texted her, “U made this choice against my wish,” and went golfing.
• McKenna, then a firefighter, decided she needed to find another career, one better suited to being a single mother. She applied for and was accepted into a special program at Columbia University. 
• When she decided to move from California to New York because, among other things, Columbia offered financial aid, benefits for veterans, and great options for parents attending school, she let Miller know.
• In the meantime, Miller’s new wife also had an unplanned pregnancy and suffered a miscarriage.
• Miller then changed his mind about McKenna’s pregnancy, initiated court proceedings to establish paternity, and sued for custody of a “child not yet born” in California. (He is also involved in a custody case involving a 5-year-old daughter from a previous relationship.)
• McKenna gave birth in New York and immediately filed for custody. Legally, New York has jurisdiction when the state is the “home state” of the child in question. However, the New York judge, in a highly unusual decision, returned the case to California. The judge called McKenna’s decision to move to New York “reprehensible,” and her decision to attend Columbia mercenary. She went further to describe her move as an “appropriation of the child while in utero.” As Slate’s Emily Bazelon explained at the time, the judge, “seemed to have it in for McKenna when he sent the case back to the California courts…The judge/referee also overlooked the fact that 'child' in state custody law does not mean unborn child, as in fetus, which is what the 'child' was when McKenna moved east.”  
• According to this court ruling, in violation of multiple rights, any travel by McKenna would have been prohibited and defined by Miller’s claims. In effect, the precedent meant that a pregnant woman could be legally compelled to stay in her baby daddy’s state against her will.
• The family court in California granted primary custody to Miller, who, with his new wife, came to New York, drove to McKenna’s apartment, "took the baby out of my arms, dropped it in a car seat and drove away."
• After the National Advocates for Pregnant Women, the New York Civil Liberties Union, the NYU School of Reproductive Justice Clinic, and other women's rights organizations filed a brief in support of McKenna, a five-judge appeals court in New York reversed the initial New York ruling, declaring, shocking though it may seem to some: “Putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty." McKenna now has custody until the next court date, which is today (December 9). The court went on to explain that a woman should not be subjected to what are essentially the whims of a person “with whom she had only a brief romantic relationship.” Imagine that.

Media coverage during the past few months has repeatedly included the fact that in the midst of these proceedings, Morgan Miller made the argument, in a now-deleted blog post, that the boy belonged with the Millers because they are able to provide “a loving and balanced family,” in contrast to McKenna, who would have to rely on childcare. Recent stories report that Miller agrees, “For an infant who's in childcare a lot of the time to sit in New York, when his alternative is to be out here…”

Those Bad Pregnant Women and Mothers. Selfish. Poor. Single. Independent. Trying to get an education. Making decisions for their own and their children’s long-term security. Exercising Those Pesky Rights to liberty and equal protection under the law. It would be so much easier if they would just go away.

But we’re not quite there yet and so until men or machines can gestate, the biological reality of women's bodies being important is the bête noire of patriarchy. As the brief filed in McKenna’s support explained, “eggs, embryos, and fetuses are necessarily inside the women that carry and nurture them in their bodies. The distinction is everything...A pregnant woman cannot help but dictate the geographic itinerary of the egg, embryo, or fetus that by biological necessity goes where she goes.” Our bodies, we keep having to remind people, are not public resources or mobile baby production facilities.

The threat that this proceeding poses to women was written off with this cavalier statement: “The case features as many twists as the Olympic slalom course.” It’s important to call bullshit on media, like Us Weekly, for failing to explain even the most basic facts about the McKenna/Miller case and so casually throwing legitimate concerns of women’s rights under the male-athletic-hero-adulation bus.

But it’s not just this entertainment magazine—a place I realize people don’t go to for complex news analysis. With a handful of exceptions, this narrative was repeated in most of the stories I read in mainstream press, from USA Today, FOX, and the The Telegraph to Boston Globe and more.

Virtually nowhere is there mention of the seeming fickleness of Miller’s decisions to be a father (multiple times). If he changes his mind again, are the women and children around him supposed to accommodate this and subsume their lives (and rights, if pregnant) to his ambitions and his needs?

There hasn't been, in any of the coverage I’ve seen, a single mention of the economics and gender issues related to why female parents like McKenna need childcare and male parents like Miller might not. No analysis of the implicit biases in the law or courts or media that McKenna is confronting by trying to keep her baby, get an education, pursue a career, and be a mother at the same time. No consideration of the benefits to Miller that accrue from the gender-skewed monetization of his athletic ability, the free labor of his spouse in creating a “balanced family life,” and a media all too happy to tacitly convey support for traditional, patriarchal family values.

We mainly hear that Miller is an amazing athlete, that he now wants his son nearby, can afford to have him play in a lovely spot on the planet, and is now “100% committed to fatherhood.” There are no concerns about Miller's rights to actually, physically attend the Olympics.

It is possible that today’s hearing will take place in front of the same judge that sent McKenna and Miller back to California. Lynn Paltrow of the National Advocates for Pregnant Women, voices a serious concern: “Once a referee [the Judge] has [wrongly] decided that a pregnant woman did something 'irresponsible' and 'reprehensible' by exercising her fundamental constitutional rights, is possible to then fairly decide the custody issues at stake?”

No one is asking this: If Miller wants to see his son more often, and is committed to what is best for him, which he agrees is to spend equal time with both parents, then why doesn’t he move to New York? Because it would hurt his career, threaten his financial security, and probably just bum him out too much? I realize that sounds snide, but that is what he has been trying to force McKenna to do. The idea that she should sacrifice her own education and ambitions were just fine with him, yet the thought that he would do the same strikes many people as laughable. The first New York court ruling smacked, as Roxanne Gay explained so succinctly earlier this year, of “Men wanting what they want…”

For all I know, Bode Miller is a lovely person and a doting father who has struggled with and overcome substance abuse. That's what we keep hearing, but it's actually irrelevant in terms of jurisprudence. His actions and the willingness of the courts to entertain his claims over McKenna’s pregnant body far exceed the parameters of his personality or his complicated personal life. Articles that frame the “brutal custody fight” as possibly hurting his Olympic chances, that focus on “this San Diego-based dad’s fight for his son,” and remind people of the value of “a balanced home” are all complicit in a system in which pregnant women are expected to sacrifice themselves, serve the needs of others, and lose their constitutional rights—to freedom, movement, privacy, and autonomy.

What happened to McKenna can happen to any girl or woman who is pregnant. In our society, one in which women's rights are constantly at risk of being degraded, the significance of even one legal precedent can’t be underestimated. I realize entirely that Us Weekly is not anyone’s reputable, go-to news source. But it is still a source of information. And its readers, like so many millions of others reading similar media, just got a cloying mainstream dose of patriarchal values and “boys will be boys” hero worship, at the expense of girls and women everywhere.