DOUBLE murder?
Moderator: Available
Found my paper on this matter from 1996 or 1997 (forced obstetrical therapy and maternal-fetal and abortion politics). Posted it here, but only the truly interested should attempt--the original is 23 pages long (20 of text). Also limited by having been written 6 years ago.
Forced Medical Treatment of Pregnant Patients Ian Jenkins
A refusal of treatment evokes some of the greatest fears of a physician who believes the patient to be at risk. When the patient is a full-term pregnant woman and the infant is also at risk, and if the mother refuses treatment out of ignorance, superstition or even as part of an overt plan to injure the child, the case becomes an obstetrician's nightmare. The doctor must either wait for damage to take place, or violate his or her patient's wishes and administer forced therapy, leaving behind the roles of helper and partner for that of enforcer. Despite the obvious importance of a full term fetus, forced treatment of pregnant patients has been criticized for violating patient autonomy, right to bodily integrity, and sometimes religious beliefs, for setting a dangerous precedent and violating the law, and for constituting a extraordinary and irrational demand on women.
The conflict over the two choices arose in the late seventies and continues to the present, where it more often takes the form of punishment for women who use or otherwise act irresponsibly drugs during pregnancy. With few exceptions, ethical and legal analyses of forced treatment conclude it is unjustified and sets a disturbing precedent for state control over private lives. Nancy Rhoden's conclusion, "It is far better that some tragic private wrongs transpire than that state-imposed coercion of pregnant women become part of our legal landscape" is one example (1953.) Yet support for compelling women to act as beneficently as possible has been strikingly popular among obstetricians. In a 1987 report in the New England Journal of Medicine, Kolder et al noted that nearly half—46% percent--of the "heads of fellowship programs in maternal-fetal medicine thought that women who refused medical advice and thereby endangered the life of the fetus should be detained, and 47% supported court orders for forced medical treatment (1192). In fact seventy-six percent of the study's respondents denied at some point that competent pregnant women had a right to refuse medical treatment. In 26 states, obstetricians had sought court orders to override maternal refusals of treatment; in 11 states those court orders mandated cesarean sections (1194).
Although the concept of forced medical treatment began with the drama of a mother refusing treatment during labor, when interventions on behalf of the fetus would be obviously indicated were it not located inside another person, forced medical treatment of pregnant women takes other forms. Drug use during pregnancy conjures up images of forced treatment. In fact, the Medical University of South Carolina's "Interagency Policy on Management of Substance Abuse During Pregnancy" directed that pregnant patients testing positive for drugs receive a letter warning "if you fail to attend Substance Abuse and Pre-Natal care you will be arrested by ... City Police and prosecuted" (Jos 121). Here the drug abuse is the condition that compels treatment. A fetal protectionist regulation of women's employment choices also could result in forced or coerced treatment. Could not Johnson Controls, a battery manufacturer that barred women (unless sterile) from jobs that could have exposed them (and their fetuses) to lead, compromised with rules that mandated either pregnancy tests or blood lead level tests for female workers (see Daniels chap 3)?
Forced treatment has won the approval of a large number of doctors, many judges, and others, despite the exceptional nature of the proposed intervention. Any competent adult has the right to refuse medical treatment, supporters seem to say, except pregnant women, whose objections and often religious rights (See Hastings Center Report Vol 18 #1 pg 18 1988) need to be overridden in the interest of their fetuses. Perhaps the best way to understand the phenomenon of forced medical treatment for pregnant women is to compare it to interventions that are not being suggested by physicians--that is, invasions of bodily integrity that are almost wholly condemned by doctors, the law, and society at large. Cynthia Daniels catalogs these forbidden actions in her book At Women's Expense: robbery suspects may refuse any surgery needed to remove critical evidence from their bodies. Suspected drug dealers may refuse to have their stomachs pumped if they swallow evidence. Suspected rapists may refuse to take an HIV test. Parents may refuse to donate organs to their children, even if the child will die without them, even if the lost tissue will regenerate, as in a bone marrow transplant. And even cadavers may not be violated without their prior consent or that of a family member in most situations. Yet in thirty six cases women have been subjected to forced medical treatment, placing them, on some level, below cadavers (33), and also below involuntarily committed mental patients, who may also refuse medical treatment (Johnsen 37). Lieberman et al write, apparently astounded, "So we have the absurd: that the law consents to the fetus having material rights, at the same time that his right to life is an unsettled question" (516). The unstated assumption, applicable only in the case of maternal fetal conflict: if one has a right to life, one has a right to force others to undergo surgery. The closest analogy to forced medical treatment of pregnant women "would be an organ 'donation' over the explicit refusal of a competent adult, and such an order would be profoundly at odds with our legal tradition," writes Kolder et al (1194). She note that judges who understand this point reject requests to force pregnant women to receive treatment by making the analogy to organ donation precedent. There must be powerful social forces pertaining to birth and women's roles that allow pregnant women's bodies to be violated in the interest of a fetus—rules that do not operate when a woman who refused to be an organ donor when alive would not be similarly violated after death.
The Transparent Mother
The first step in the development of a conception of pregnant women that allows then lesser rights to bodily integrity than other citizens seems innocuous enough--coming to see them as separate and distinct from their fetuses. The early notions of the pregnant woman as single unit, with the fetus as part of her, gave way to the current conceptions of fetus and mother as separate and often in conflict, during the 70's and early 80's. Conception, once invisible, private, became public and observable with the advent of test-tube baby technology. Use of ultrasound and intrauterine photography invited the observer to conceive of a fetus within a woman, rather than a pregnant woman. The rise of abortion rights first in states like New York, and then nationally with Roe v Wade, with the corresponding development of anti-abortion rhetoric, helped transform the matter further, from separate "mother with child" to opposed "mother against child." One recalls a common type of anti-abortion graphic where women are shown speaking on their needs and rights or waving signs--with the cartooned thoughts of their fetuses rising unheard from their wombs: "I want to live!" or "What about my rights?" Thus from the 1884 conception of pregnancy captured in the Dietrich case, where a woman who miscarried after a fall on a defective highway lost all rights to damages because the fetus was "part of the mother at the time of the injury," (Daniels 11), we have now moved to the 1990's conception of cocaine using women who "abuse" and "neglect" their unborn children, who, though quite dependent on their mothers biologically, are quite independent ideologically.
Many of these changes can be placed in the context of 80's antiabortion rhetoric. In the 1983 antiabortion film The Silent Scream, narrator Bernard Nathanson describes his transformation from NARAL (National Abortion Rights Action League) co-founder to staunch anti-abortionist. The most important contributor to his change of heart was the development of the science of "fetology" which Nathanson claims came into existence after he cofounded NARAL and brought him stunning new knowledge about the status of the fetus. He displays as the fruit of fetology a series of models of the fetus at different stages of development, implying that doctors were ignorant of the development of the fetus prior to the 1970s. The most important contributor to his change of heart is the ultrasound machine, which allows him to display on TV real-time images of the fetus (about to be aborted) moving independently of the mother, who has become completely transparent. She is the "maternal environment" and "contains" the fetus, but, like the wood-grained box that surrounds Nathanson's TV screen displaying the fetus, is unnoticed and absent. In some of Nathanson's other rhetoric the fetus floats innocently in the womb, like an astronaut tied loosely to the "'mother ship'" and who feels gravity for the first time during birth. Complains Barbara Rothman, this metaphor transforms the woman into "empty space," the vacuum--a location for the interesting events to take place but in other ways not worth considering at all (The Tentative Pregnancy, NY Viking Press 1986, quoted in Daniels 21). Ultrasound has the effect on bonding the mother to the infant; her obstetrician may also look to the screen and bond to the fetus, to see it as a separate entity. He or she may also generalize this experience to all fetuses. Nathanson's Silent Scream narration claims that the abortionist whose procedure is depicted underwent a stunning change of heart after witnessing the fetus on screen, and never again performed an abortion. Doctors now have two patients where before they had one—the old conception of the fetus of part of the woman has been shattered.
This new conception of the fetus translates directly into forced-treatment ideology. Bowes, for one, quotes from the same passage in William's Obstetrics used to condemn abortions in "The Silent Scream": "'The fetus has rightfully achieved the status of the second patient, a patient who usually faces much greater risks of serious morbidity and mortality than does the mother'" (213).
Along with ultrasound, other advances in obstetrics have separated fetus from mother. Advances in technology have pushed back the point of viability--the point at which the fetus can be regarded as fully separate from the mother if its location is not considered--to the point where premature babies that fit comfortably into one hand have been saved. The popular conception of viability has exceeded even this feat; President Reagan once noted that even three month fetuses has been born prematurely and survived, (Daniels 18) despite the medical consensus that these fetuses would have remained three months short of sufficient lung development (at 24 weeks). Prenatal surgery, despite a low rate of success (4 of the first 17 "tiniest patients" survived (39)), has cemented the status of the fetus as second patient. Such surgeries may involve removing and replacing the fetus from its uterine home. Writes Daniels, "Each of these technological developments was seized upon by the media as a medical marvel as well as by anti-abortion advocates in their own campaign to promote the fetus as a person... they shift the power of procreation and pregnancy away from women toward the social institutions of science and the state" (19). Lastly, brain-dead women have been maintained on life support to save their fetuses—present only as the ultimate fetal containers, mere incubators without wants or needs who serve as powerful symbols of the maternal-fetal dichotomy. In one case reported by Newsweek, one legally brain dead woman was kept on life support for 53 days to save her fetus, and physicians have recommended "vigorous" life support for brain-dead mothers to permit c-sections to be performed, perhaps weeks later (Dillon 1090). The fetus has become treatable, even if housed in a dead mother, and doctors now find that technological barriers no longer stand in the way of successful therapy. Women themselves stand between the doctor and the treatable fetus—when the disease is curable, the problem is resolved except for lack of consent. The woman is the sole remaining "cause" of the problem. According to the one judge in a forced treatment case, the fetus is "'literally captive within it's mother's body'" (Annas "Foreclosing"28).
Rhetorically, the pregnant woman has been separated into mother and child, the mother and the child are often depicted in conflict, and the mother often appears transparent, allowing the viewer to see the fetus directly without dealing with the concerns of the mother. This final step is an important one, as Nathanson's, and Bowes and Selgestad's use of the Williams Obstetrics quote comparing maternal and fetal risks reveals. Just because a famous medical text states that the fetus has serious and pressing medical needs, it does not follow that those needs are secondary to the autonomy and health of the mother. What is the justification for favoring the fetus over the mother, as Bowes and Selgestad claim physicians should (213)?
Many of the reasons are social. There can be no doubt that gender issues enter the debate over forced treatment and medical control of women during pregnancy. Johnson Controls, justifying women's exclusion from a job that could expose them (and their fetuses) to lead referred not to "male and female workers" nor "mothers and fathers," but "male workers" and "mothers" (Daniels 75). Emily Martin's seminal work "The Woman in the Body" discusses social forces and how they relate to women's experiences with gynecology and obstetrics, and suggests a number of ways the pregnant woman could be made a special case, the one not allowed to refuse medical care, by gender assumptions and social forces in the delivery room.
The Doctor Gives Birth
While reading Martin's book one realizes there is an expectation that laboring women will come under the supervision of doctors. There is a further assumption that doctors will monitor and assist birth through a variety of interventions like hormone administration, forceps delivery, c-section, episiotomy, breaking the membranes, and so on. The routine medicalization of birth is a force that justifies and even necessitates these actions, and women who refuse them violate rules of behavior.
In a medicalized birth health care professionals, more than laboring women, are in charge of labor. Lieberman et al tellingly use the phrasing "until the woman has been delivered of her child" rather than "until she has given birth" (516) and Martin points out the growing trend to view the physician mediated c-section birth as superior to the mother-mediated vaginal birth (64) as well as to remove the woman from the process rhetorically by attributing effort to "the uterus" rather than her (62), and separating her body from her mind (58, 62-3). Labor is timed and evaluated frequently; any number of signs or long labors within normal limits can lead to c-sections (60,63). Overall, the process cannot seem to be at a standstill or beyond the control of the supervising medical staff [Bowes and Selgestad describe a "devastating sense helplessness as nurses and physicians stood by observing the ominous FHR (fetal heart rate) patterns hour after hour while administrative and legal procedures took place to resolve the situation" (211)]. In many cases women feel that they lose control over normal births; when labor goes awry, the pressures to intervene despite the patient’s objections are many.
The Heroine Mother
Women are praised for sacrifice in the name of the fetus, though most public conceptions of maternal rights, however, praise these sacrifices but mandate that they remain voluntary—see, for example, the majority opinion in Planned Parenthood v Casey. Popular media examples of the mother who dies for her baby include the plays Les Miserables and Miss Saigon, in which a mother saves a child by working herself to death or by coercing a father to take the child after she kills herself. The Seventh Seal, a motion picture starring Demi Moore, involves a woman whose heroic decision to die for her baby in childbirth redeems the sins of the world and saves it from the destruction of the Revelation. "I will die for my baby!" she says several times at the climax of the film. E.R., a popular television show, featured a cancer stricken mother who forgoes aggressive therapy since it would doom her fetus; she claims the decision was simple: "My life is ending. Hers has barely begun." In the case of Angela Carder, a real-life cancer patient who, near death, refused a risky c-section to attempt to salvage her fetus, this attitude was (perhaps sensibly) lacking, because the fetus was too young for a realistic chance of success; it had already been starved of oxygen by her mother's illness, and the operation would almost surely hasten her death. But despite these rational reasons for refusing the operation, Carder underwent an involuntary c-section. Had she done what her doctors had expected, she might have entered the popular media, in death, as a martyred heroine. Heroics were expected of this dying woman.
Bowes and Selgestad establish that there are two patients in the delivery room, then asks which of the two must have priority in a conflict. The authors never get around to stating so explicitly, but they favor the fetus, claiming that "Roe v Wade allows the state to assert an interest in the protection of potential life in the fetus once it has reached a stage of viability... health professionals [should] assert the same interest" (213). In fact, in a discussion of risk they note: usually "the mother is willing to accept added risks of morbidity and mortality in the interest of her unborn infant. However when [she refuses], the physician is faced with the dilemma of making decisions with regard to one patient that are inimical to the health of the other" (214). It is standard for the mother to bear risks for the fetus and the authors have no problem subordinating her to the fetus; when the mother claims to have priority, suddenly an unacceptable tradeoff is made. The natural role of the mother is to accept risk for the fetus.
Women who violate this role appear fairly unintelligent to advocates of compulsory medical treatment. To Lieberman et al, it is clear that sometimes obstetricians simply must override the objections of a stupid patient: it is absurd to have to comply with the wishes of a patient whose "refusal resulted from the mother's ignorance and prejudice, which prevented her from arriving at an intelligent decision (516). Notes Elvoy Raines: "if the patient refuses care in the face of a pressing [fetal] need for it, this may be evidence of incompetence" (598). Here, apparently, a woman is free to choose her doctor’s suggested course of action. If she disagrees, she is incompetent and her doctors should take over for her. In contrast, patients who refuse care necessary to save their own lives have capacity to make their own decisions even if their values are at odds with their doctors.
This conception of consent places a burden of proof on women, whose freedom to choose for themselves is remarkably constrained: "The burden will be on the [woman]...to prove by a preponderance of the evidence that a reasonably prudent person in the patient's circumstances would have refused to undergo the proposed procedure" (599). Competent women consent; only incompetent women refuse, but their consent is irrelevant. Bowes and Selgestad insist that a court who authorized the removal of a kidney from an incompetent person to save a sibling has implicitly authorized forced medical treatment of women (213). Therefore women who do not consent to treatment advised by doctors are incompetent?
Anti-Moms: Innocent Babies, Vindictive Mothers
There is another connection to antiabortion literature in the innocence of the fetus: the obstetrician must choose between the innocent fetus and a mother who is far from angelic, unwilling to undertake risks and make sacrifices the physician believes a reasonable mother should. The woman is quite often sinful, possessing downright murderous attitudes toward the fetus and indicating that her selfishness takes precedence over the very life of her baby. Jurow notes that his patient "stated that if the fetus would die, it would solve her already complicated life situation" (597). The situation presented involved a woman who was living with a boyfriend--not the father of the child. With a mother in labor refusing treatment, after "fear of surgery, difficulty with the language, and inadequate rapport between doctor and patient," as well as "prejudice [and] ignorance," have been conquered, then only "an occult [or hidden] reason" can explain the refusal, writes Leiberman et al (515). One patient who "stubbornly refused" to submit to a c-section told a nurse "she was not disappointed and that the death of the fetus solved complicated personal problems"—this despite the claim that no mother with an occult desire for the fetus to die would "share her secret thoughts." In fact, Lieberman's second case of an occult reason lists the cause of the refusal for surgery to be "fear of dying"--the only proof that she actually intended malice to her child is the force of the author's speculation that her alibi was "almost perfect" but false.
The same conception was seen in the policy discussions the organized responses to drug-using mothers, during which "outrage at the behavior of the pregnant women was expressed" (Jos 122) despite the fact that "ability to make informed choices is precisely what cocaine so often destroys" (124). The problem is the same: the norm of the maternal fetal relationship is utterly violated. "Ingesting illegal drugs while pregnant is a potent symbol of selfishness and irresponsibility. Compromising the health of one's yet to be born child to satisfy physical desires is anathema to the common expectation that mothers should protect their children" (124). One outcome of policy makers' increasing use of the "moral norm" model (with mothers as "victimizers of innocent babies") for the "coke baby" problem, as opposed to a disease model (addict as patient, drug use as disease) was a shift toward a more punitive based, rather than treatment based, policy (124). Pragmatism gave way to punishment when resources to help mothers use therapy (child care, transportation) were turned down: allowing these expenditures would "'[blame] society'" for individual responsibility, claimed crafters of the policy who explicitly rejected them (126). Some advocates of limiting maternal drug use make their contempt for pregnant drug abusers explicit: "In very simple language, [they] should be jailed... forced sterilization for some of these people" (Daniels 121).
Daniels believes the conception of the anti-mom is the greatest contributor to pregnant women's loss of rights. There must be a principle that makes the case for violating women more compelling to some doctors than the case for violating cadavers, that makes some lower courts abandon their commitment to bodily integrity and fourth amendment rights against "unreasonable searches and seizures" of the citizens' "persons" (33). It is a "social climate which pictured women as either vindictive, ignorant, or irrational. While a man's refusal to submit to a medical procedure could be defended as rational, a woman's ... could not" (35).
Legal Standing
The picture is not complete, but it is illuminating. The fetus is a separate, independent entity, contained within the mother, and now treatable, should the mother permit the treatment. The problem then, is not the organic cause of fetal distress but the mother who forbids doctors to treat it. And this mother is not only an obstacle to treatment but a "bad mother," who harbors malice toward the child and is unwilling to live up to her societies motherly standard of self-sacrifice.
Socially, a convincing argument to some. But what are the legal justifications for forced treatment? They begin with a transformation in the law from that 1884 Dietrich case, where a mother was afforded no compensation for her lost fetus because the fetus was "part of her." That ruling failed to recognize the very real loss—even in a country where abortion is legal (though restrictable) up to viability for any and for no reason, and legal thereafter for health concerns—that prospective parents feel on the loss of a child. Later legal action tried to compensate the parents for fetal harm. The 1946 Bonbrest v. Kotz ruling allowed a father (not a fetus) to be compensated for harm before birth caused by a doctor; other cases extended this right to accident victims and the like (Daniels 11). Kolder et al note that in these cases fetal death applies to wrongful death statutes only as an effort to "compensate prospective parents for their loss" and not to indicate that the fetus was a person whose rights were violated (1194). By 1960 the fetus itself collected damages. In Brennan v. Smith a pre-viable fetus earned the right to compensation because after birth, it would suffer the same harm as a viable fetus (12). Though one's ability to collect damages for actions that occur before birth, and even before conception, is increasing (Shriner 518, Daniels 12), most states recognize such rights as contingent upon a live birth (Daniels 13, Kolder 1194).
Laws were also passed to allow women to collect damages for fatal fetal injuries. Beginning in 1984, states began to recognize the fetus as a person in feticide laws, with at least ten doing so through 1993 (Daniels 15). However, none of these changes obligated anyone to unusual duties to the fetus like those said to be required of pregnant women. They merely restrained people from acting to harm it, or in the case of physicians negligently failing to perform an indicated procedure desired by the mother. This not-so-subtle distinction is ignored by many discussions on the topic written by compulsory treatment advocates, and laws acknowledging the value of the fetus or even its right to inherit are said to indicate that the fetus has a right to life, a life protectable through the forced surgery of others (see Bowes and Selgestad 213, Lieberman et al 516).
There are three major cases cited by most advocates of forced treatment: Raleigh Fitkin v Anderson (1964), in which a pregnant Jehovah's Witness was ordered to undergo a intrauterine transfusion to save her unborn child, over her express wishes and religious beliefs; the 1981 Jefferson v Griffin Spalding; and Roe v Wade. [Another, the Georgetown case, is cited by Bowes and Selgestad, and Jurow and Paul, but involves the transfusion of an incapacitated Jehovah's Witness, not an awake, competent, pregnant patient (Nelson 231)]. The first two are the only reported appellate cases supporting forced treatment and neither "rests on a strong legal foundation" (Nelson 231).
Raleigh, said to justify compulsory medical treatment, was decided in 1964, before Roe v Wade and its accompanying emphasis on the right to privacy and self-determination in issues of medical procedures like abortion (Kolder 1194-5). It also mandated a minimally invasive procedure (intrauterine transfusion), as opposed to a c-section, it was a moot case and was never enforced, since the mother left the hospital before it was rendered, and it mandated a procedure it believed the mother actually desired to save her child (though she could not choose it herself as a Jehovah's Witness, she was presumed to accept it being forced upon her (see Annas, "Forced"). Further, the opinion was "brief and devoid of policy discussion" (Nelson 232). Nevertheless Bowes et al claim that the case "squarely addressed the issue that treatment of the mother can be ordered to safeguard the rights and life of the unborn fetus (212)."
Jefferson's flaws involved misinterpretation of Roe (see below). Even a concurring judge wrote that the juvenile courts had no jurisdiction unless the child had been born (Nelson 232), and there was little justification for breaking from this precedent, or policy discussion, in the two sentence opinion of the parent's appeal of a lower court's order (Annas, "Forced" 16, Daniels 25).
Lastly, Roe v Wade and its progeny have also been offered as support for compulsory medical treatment, since it mentions a "compelling interest" in fetal life (Kolder 1194). The reasoning is that if the state has a compelling interest in a fetus after viability, one that allows it to ban certain abortions in the third trimester, it can compel women to surgery in order to further that interest. Commentators who have used this line of reasoning include Bowes and Selgestad (1981), Bross and Meredyth (1979), Robertson (1982), and Landwirth (1987); the reasoning was also followed by the Georgia court that decided the 1981 case Jefferson vs Griffin Spalding County Hospital Authority. However, Nelson (228) calls this reasoning erroneous and the "most common and serious oversight made" in the maternal-fetal conflict debate, since the Roe ruling does not grant unlimited fetal protection power to the state after viability. Women may always obtain abortions in the interest of their lives and health. In fact it only permits and does not mandate the state to protect the fetus, whenever such efforts do not compromise the health of the mother (and anesthesia and surgery are clearly health risks). It makes absolutely no comment on forced treatment of any kind. A judge contributing to the reversal of Angela Carder's forced c-section noted the Roe never gives the fetus equal status with, much less priority over, the mother in any point in pregnancy (Curran 492).
The progeny of Roe provide even more pointed counterpoints to the "compelling interest" logic above. "Standing Supreme Court decisions have rejected claims that maternal rights can be overwhelmed by fetal rights... the Court has refused to accept that [Roe v Wade's 'compelling state interest'] in protecting viable fetuses allows or sanctions compulsory treatment of the mother" (Jos 122). For instance, the 1979 Coluatti v Franklin decision defeated a statute that allowed a fetal interest to take precedence over maternal health; as Kolder et al point out, the 1986 Thornburgh vs American College of Obstetricians and Gynecologists decision establish that a woman's health and safety takes precedence over fetal rights at any point in pregnancy (1194).
Thus the bulk of judicial holdings guarantees maternal rights immunity from fetal claims. Some lower courts have favored fetal health over maternal rights in the case of maternal substance abuse (Jos 122) but none of these rulings have been upheld in higher courts (123). In fact most of the legal cases concerning forced medical treatment contain little legal analysis and frequently fail to recognize the unique relationship between mother and fetus—and act instead as if they were simply ordering the treatment of a child over the parents wishes, rather than mandating therapy for the woman as well (Johnsen 34).
Liability: NonAction
To many doctors writing about the issue, the moral and legal justifications for forced treatment are only part of the debate—they are strongly interested in remaining immune to legal action after a child dies because they failed to treat a non-consenting woman, or after a woman is subjected to that treatment. In either case the physician feels threatened. Bowes and Selgestad loudly proclaim that "Potential Liability of physicians requires [the] proper court action" of enforcing medical advice over the patients objections (213). Their solution, which "protects all parties from ...potential liabilities" is court-ordered medical intervention (which obviously does not protect the mother from unwanted surgery). They fear not just charges of negligence or malpractice but murder: "There was concern that the patient's family would bring charges of professional or institutional negligence in the event the infant or the mother died or was seriously injured as a result of inaction" (211). The authors point out that if a fetus is born alive and dies as a result of injury before birth, it may be a victim of murder, and "physicians might run the risk of prosecution for homicide in the performance of their duties." Yet they fail to discuss the enormous gaps between intentional harm and failure to treat, or between failure to perform an indicated operation and inability to do so despite the best efforts of the doctors. Their entire discussion equates failure to perform a needed procedure with failure to strap a woman to a table and perform surgery on her against her wishes and/or religious beliefs, as if her desires were completely irrelevant to the entire debate. Would the authors honestly believe that a physician could be held liable for failing to forcibly perform surgery?
Jurow also reported that a child in the process of birth should be considered a "human being within the meaning of a homicide statute." He suggests that non-action might actually be murder, without bothering to discuss the distinction between the established wrongness of killing a child minutes before birth and the proposed rightness of forcibly treating another person to save the child from a death from natural causes (598). And Lieberman et al assure the reader that failure to consent to an emergency c-section is "a felony" (515, 517) and any doctor who does not override a patient's wishes and perform surgery is "a passive accomplice" to that felony (516). Would either author support a forced organ transplantation from a mother for a child of nine, obviously a person within the meaning of a homicide statute?
Despite these worries, "there is no affirmative legal duty on the part of the clinician to seek a court order in these circumstances...there is no reported case of a court imposing civil damages on any physician for failing to seek judicial review of any competent adult's refusal of treatment" (Nelson 227, citing Kolder et al (1987) and Nelson et al (1986); see Nelson 232). In fact, seeking court orders may prove counter productive for obstetricians seeking to avoid liability. Kolder (1196) points out that seeking court orders may ironically give rise to a higher standard of care and greater liability. Once such dramatic interventions become the norm, the reasoning goes, physicians will be required to seek them in certain cases, and may be liable if a condition they deemed not serious enough to merit forced treatment is found otherwise by a jury. Currently physicians are not required to seek court orders and cannot be found liable for failing to force treatment on a mother.
Liability: Action
On the other hand, there is a significant issue of liability for doctors who do forced treatment on women, who would be guilty of batter, whatever their motivations or competence at performing the procedure. Forced surgery would constitute a grave insult to personal autonomy and bodily integrity, even if it did not involve additional risks to the mother, which it of course does. C-sections are major surgery and in many of the forced treatment cases are performed under general anesthesia--they are no small incident in a woman's life. To make matters worse, the doctor's malpractice insurance might not cover the intentional, rather than negligent, act, and the doctor could also be responsible for breaching confidentiality, invading privacy, or inflicting emotional distress. Saving the life of the fetus may be a positive outcome of the battery, but one a jury never hears of since it is irrelevant to the criminal charge and the harm faced by the woman (Nelson 233).
The Issue of Error
Inevitable uncertainty in a diagnosis can make the liability of physicians all the greater. Rothman (25) pointed out in a critique of forced treatment that the past advice of obstetricians regarding DES treatment, diuretics, limiting weight gain, and x rays is now considered incorrect. The clearest candidate for a more modern over-prescribed treatment is the c-section, with some doctors advising vaginal birth with "selected patients only" (Martin 60). Doctors seeking court orders to treat non-consenting pregnant patients are forcing a major burden on them, potentially without reason.
In many cases where doctors cite the need for immediate action to save the fetus, the predicted damage does not occur: Kolder reports that the predicted fetal harm did not occur in six of the 16 cases where outcome was reported (1195). In 1981, Jessie Mae Jefferson, said to be facing a 99% chance of fetal death, and 50% chance of own death without a Caesarean section, gave birth vaginally before the surgery could be performed (Daniels 45). In 1982, a woman told she would be forcibly taken to the hospital for a cesarean section went into hiding, then gave birth to a healthy baby two weeks later (Daniels 34). And in the case reported by Bowes et al, the child born after the compulsory c-section has a "prompt response to resuscitation" and "normal growth and development." The authors conclude: "That a more asphyxiated infant with poor neonatal outcome did not result after so long a duration of apparent fetal distress simply underscores the limitations of continuous fetal heart monitoring as a means of predicting neonatal outcome" (211). The outcome of the infant could have made a court case for assault difficult for the doctors to win, given that their prediction of dire harm used to justify the operation turned out to be largely incorrect. The matter would have turned out even worse for them since their patient, labeled both "morbidly obese" and "angry and uncooperative" (209) might have resisted the administration of the anesthesia: after the judge's order, the patient's attitude "fortunately... became one of reluctant acceptance and compliance. Had [she] steadfastly refused, it might not have been...safe...to administer anesthesia to a struggling, resistant woman how weighed in excess of 157.5 kg." Their obese patient faced greater than usual risks for surgery--"mortality, aspiration, hemorrhage, wound infection, wound hernia, and... thromboembolism" (211); how would this list of complications sound to a jury contemplating punitive damages? As it turned out, their patient did have a delayed healing of her incision (210) because of her weight and resulting depth of the wound.
Uncertainty increases the risk of liability for the doctor, since the particular fetus in question may turn out to be in no danger and the particular woman subjected to invasion needlessly, or since the reliability of such diagnoses in general could be shown to be unreliable and thus an insufficient justification for forced surgery. Uncertainty also results in an affront to the woman. As Kolder et al pointed out, "physicians are quick to embrace uncertainty as a justification for their errors, [but] they are less quick to recognize its effect on patient self-determination"—that is, women unlike doctors, are not allowed to err. Thus the court-appointed lawyer for cancer patient Angela Carder's fetus claims that parental objections to therapy are irrelevant, as if doctors have an unconstrained right to administer whatever therapy they see fit: "neither parent is a trained physician" (Annas, "Foreclosing" 28). Robertson writes that c-sections are often performed unnecessarily but nevertheless recommends criminal charges for women who refuse them ("Children" 187,190; "PKU" 28). This despite Elias and Annas' point that "it seems wrong to say that patients have the right to be wrong in all cases except pregnancy" (both at Nelson 234). However, recall that Lieberman et al it is sometimes necessary to simply override the wishes of a patient who is "ignoran[t] and prejudice[d]" and could not make an "intelligent decision" (516).
This is not to say that even a certain diagnosis of impending fetal death could protect physicians from liability. In one case where the physician's diagnosis justifying forced treatment turns out to be correct, Jurow reports that "the preoperative diagnosis was definitive and was substantiated by the acid-base status and Apgar scores of the newborn." Liability, for this group of health care providers, would not turned on the health or illness of the fetus they may have rescued, but their performance of an involuntary procedure with no time for reflection, no court order, and no court consultation. Clearly they ignored their own call to act under "well-thought-out guidelines that safeguard and protect both the rights of the fetus and the mother" (598).
Forced Treatment As Unsound Policy:
If the legal justification of forced treatment stands on shaky ground, so does its actual enforcement. The adversarial hearing emphasizes argument over conflict resolution (Obade "Compelling" 87) and the limited time frame for court ordered interventions places tremendous pressure on judges called upon to evaluate mothers who refuse to consent to treatment (Annas, "Forced" 17, "She's" 25) just as it limits the precedent value of such cases, since the judge had little time to make a good decision. Daniels points out that in none of the 21 cases in Kolder's study was the woman's competence properly assessed; in 90% of the court ordered treatments, orders were received in less than six hours—with likely effects being poor judgment, improper attention to the facts, inadequate representation for the woman (1195). In the Angela Carder case, the judge was rushed to hospital by police escort (Annas "She's" 23) and ended up basing his decision on one clearly distinguishable case, the only one available to him. The Appellate Court noted that Ms. Carder's personal physician was not even notified of the hearing and testified later that a c-section was in neither the mother's nor fetus' interests (Annas "Foreclosing" 29) and wrote in its opinion that legal preparations were "so minimal neither the court nor counsel (ever) mentioned the doctrine of substituted judgement" (Obade, "In Re AC,"). Such constraints make enforcement of any future forced surgery laws "immensely impractical...even a minimally adequate judicial proceeding would take more time than a prolapsed umbilical cord would permit" (Shriner 519).
Kolder noted that forced treatments were arbitrary in another way—strongly biased against minorities, whether cultural or racial, as well as against the poor. Doctors have much more authority over the clinic patient than the private patient. Daniels noted that pregnant black women were ten times as likely to have their drug abuse reported than white drug abusers (127), and Martin noted that blacks are more likely to receive c-sections for vague causes--as a form of control over their bodies, she concluded--that predisposes them to forced therapy (151).
Forced treatment measures may be counterproductive as well as arbitrary. The American College of Obstetricians and Gynecologists has warned that "'Clinicians should be aware of the destructive effect of court orders on the pregnant women's autonomy and on the physician patient relationship'" so that "'Resort to the courts is almost never justified'" (Daniels 52). Physician-enforcers would not be attractive to patients, especially ones with the mistrust of medicine that often contributes to refusals of treatment in the first place. How would a doctor recommending forcible restraint and anesthetization of patients recruit the patients whose fetuses he wanted to help (see Hastings Center Report 18:1 pg 18)? "Warnings of felony conjure up the policeman, not the obstetrician," (Shriner 518) and many authors have addressed the potential to drive women away from care, resulting in more fetal injuries (see Nelson 236 for one example). Lastly one has to wonder if fetal benefit or maternal punishment is the aim when examining some of these maternal-fetal conflict cases. Paternal exposure to toxins is rarely regulated but adversely affects fetal health (Daniels 128) and the largest threats to fetal health caused by poor nutrition, but little fetal protectionism rhetoric can be found in support of nutrition programs (125). Fetal protectionism might have had an entirey different history if stories of the anti-mom didn't outrage Americans and warp perceptions of fetal harm.
Forced treatments would become even more threatening as their potential to spread throughout pregnancy (and beyond) was recognized. Many ordinary activities of pregnant women contribute to far greater fetal hazards (globally speaking) than late term treatment refusals, and these habits could be regulated with less invasion that a c-section involves. Expanded surveillance and control of pregnant women could result. Nelson (236) warns, "An effective public policy designed to prevent fetal harm would require extensive monitoring of and possible interference with [eating, drinking, sexual intercourse, physical activity, working]. This would entail an unprecedented social intrusion into the homes and private lives of pregnant women and their families." Writes Kolder et al, "acceptance of forced cesarean sections, hospital detentions, and intrauterine transfusions may trigger demands for ordered prenatal screening, fetal surgery, and restrictions on the diet, work, athletic activity, and sexual activity of pregnant women" (1195). As evidence the authors note that "a 16-year old pregnant girl in Wisconsin has been held in secure detention for the sake of her fetus because she tended to "be on the run" and to "lack motivation or ability to seek prenatal care"--an obvious case of an invasion of the woman's freedom when fetal harm was uncertain and her only crime was failure to be the best possible mother. Forced hospitalization and treatment of a similar woman who would not manage her diabetes in the way that "minimized" the risk to her fetus was supported by Mackenzie and Nagel. Both cases suggest that control of women could spread from acute cases to general prenatal care. Annas ("Fetal Containers") discusses the prosecution of a mother for failure to provide "medical attendance" for ignoring doctor's advice not to take amphetamines or engage in intercourse, actions which resulted in the birth of a brain-damaged son and his subsequent death. He warns that "advice" must not "orders" before the state gets in the habit of treating women as "inert incubators" and invading their lives for their fetuses' sake.
Robertson ("PKU"), who recommends child abuse charges for women who fail to get c-sections on the advice of their physicians (28), reassuringly notes there is no danger of a "slippery slope" whatsoever, but he goes on to suggest that as fetal surgery becomes more effective, it should become mandatory, and recommends instituting child abuse charges for women who fail to get c-sections. After all, parents, "by conceiving children, may have culpably created the unborn child's need and thus may be appropriately assigned the duty to relieve it" (30). He claims that women who choose not to abort children waive certain rights to bodily integrity (see "Children," chap.
that reasonably caring women could be expected to forego. Daniels (47, 53) reminds us to some, women can be expected to die for their children, as justifications for forced treatment of Angela Carder's (explaining that the invasion was minor since she was nearly dead; see Annas, "Foreclosing") and her subsequent death suggest. If some women should die for their babies, it's not unreasonable to ask pregnant women to undergo mandatory observation and a treatment regimen, and Robertson also suggests monitoring drug use and employment choices (Daniels 25). He is aware of the parallel between forced cesareans and forced organ donation, and has recommended both (Children 193). For more information on the c-section organ "donation" link, see Sturgess, "In Re: A.C.: A Court Ordered Cesarean becomes Precedent for Nonconsensual Organ Harvesting." Yet the reader is expected to take Robertson's word that forced treatment of pregnant women would not lead to other invasions.
The Carder Case: The Last Chapter?
Supporters of the pregnant woman's right to autonomy and freedom from unwanted treatment should take heart in the reversal of Angela Carder's court-ordered c-section. Not one of the District of Columbia Court of Appeals dissented from the central holding of the decision, that women should be able to make treatment decisions for themselves without having them weighed against fetal interests (Curran 49). Carder case was groundbreaking, marking the first time a federal court heard full testimony in a pregnancy/forced treatment case, and the decision, in favor of Carder's family, asserted that pregnant women should make decisions for themselves in "virtually all" cases. The AMA, American College of Obstetricians and Gynecologists, and the American Society of Law and Medicine issued statements defending women's right to make those decisions (Daniels 50), and most parties involved seem to have taken note of the laundry list of problems with forced therapy. However, there are reasons for concern. Carder was white, but most interventions are forced on minorities. Her commitment to motherhood was clear (she did want her baby), unlike the anti-mothers who so provoke fetal protectionism in obstetricians, and she was cast as a dying patient rather than a resistant mother. Thus the case did not squarely defeat forced treatment (Daniels 50-52), at least not in its most common incarnation. And while late-term forced treatments have subsided, the issue has by no means been laid to rest. Forced treatment's relative, prosecution of pregnant drug abusers, continues, and just under 75% of states with living will laws restrict the pregnant woman's right to die, 20 of them without exception (Daniels 34) forcing medical treatment on them in the last days of their lives and reiterating their role within the issue of forced c-sections: fetal containers.
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WORKS CITED
Annas, George. "Forced Caesareans: The Most Unkindest Cut of All" Hastings Center Report 1982; June: 16.
Annas, George. "Foreclosing the Use of Force: A.C. Reversed." Hastings Center Report 1990; 20(Jul-Aug): 27-9.
Annas, George. "Pregnant Women as Fetal Containers." Hastings Center Report 1986; 16(6): 13-15.
Annas, George. "Protecting the Liberty of Pregnant Patients." NEJM 1987. 316(19): 1213.
Annas, George. "She's Going to Die: The Case of Angela C." Hastings Center Report 1988. 18(Feb-Mar): 23-5.
Bowes and Selgestad. "Fetal Versus Maternal Rights: Medical and Legal Perspectives." Obstetrics and Gynecology 1981. 58(2): 209-214.
Berg RN: "Georgia Supreme Court Orders Caesarean Section--Mother Nature Reverses on Appeal," J. Med Assoc GA 1981; 70:451-3
Chervenak and McCollough. "Perinatal Ethics." Obstetrics and Gynecology 1985. 66: 442.
Colautti vs Franklin. 439 US 792 (1979).
Curran and Hyg. "Court-Ordered Cesarean Sections Receive Judicial Defeat." NEJM 1990. 323(7): 489-492.
Daniels, Cynthia. At Women's Expense: State Power and the Ploitics of Fetal Rights. Harvard UP. Cambridge, MA, 1993.
Dillon et al. "Life Support and Maternal Brain Death During Pregnancy." JAMA 1982; 248(9): 1089-1091.
In Re A.C. Atlantic reporter, 2d series. 573: 1235-1264 (1990).
Jefferson vs Griffin Spalding County Hospital Authority, 274 SE 2d 457 (GA 1981)
Johnsen, Dawn. "A New Threat to Pregnant Women's Autonomy." Hastings Center Report 1987; 17(4): 33.
Jos, Marshall, and Perlmutter. "The Charleston Policy on Cocaine Use During Pregnancy: A Cautionary Tale." Journal of Law, Medicine and Ethics 1995; 23: 120-128.
Jurow and Paul. "Cesarean Delivery for Fetal Distress Without Maternal Consent." Obstetrics and Gynecology 1984; (63)4: 596-598.
Kolder, Gallagher, and Parsons. "Court Ordered Obstetrical Interventions." NEJM 1987; 316(19): 1192-1196.
Leiberman et al. "The Fetal Right to Live." Obstetrics and Gynecology 1979; 53(4): 515-517.
Mackenzie and Nagel. "When A Pregnant Woman Endangers Her Fetus." Hastings Center Report 1986; 16(1): 24-25.
Martin, Emily. The Woman in the Body: A Cultural Analysis of Reproduction. Beacon Press, Boston, 1992.
Nelson and Milliken. "Compelled Medical Treatment of Pregnant Women." Ethical Issues in the New Reproductive Technologies. Richard Hull, Ed. Wadsworth Publishing Co. Belmont, California, 1990.
Obade, Claire. "Compelling Treatment of the Mother to Protect the Fetus." Journal of Clinical Ethics 1990; 1(1): 85-87.
Obade, Claire. "In Re A.C. reversed: Judicial Recognition of the rights of Pregnant Women." Journal of Clinical Ethics 1990; 1(3): 251.
Planned Parenthood of SE PA v Casey 505 US 833 (1992).
Raines, Elvoy. "Editorial Comment." Obstetrics and Gynecology 1984; 63(4): 598-599.
Raleigh Fitkin-Paul Morgan Memorial Hospital vs Anderson 42 NJ 421, 201A 2d 537 (1964).
Rhoden, Nancy. "The Judge in the Delivery Room: The Emergence of Court Ordered Cesareans," California Law Review 1986; 74: 1951-2030.
Robertson. Children of Choice. Princeton UP, 1994.
Robertson. "Legal Issues in Fetal Therapy." Seminars in Perinatology 1985; 9; 136.
Robertson and Schulman. "Pregnancy and Prenatal Harm to Offspring: The Case of Mothers with PKU." Hastings Center Report 1987; 17(4): 23-33.
Roe vs Wade. 410 US 113 (1973).
Rothman, B.K. When a Pregnant Woman Endangers Her Fetus. Hastings Center Report 1986; 16(1): 25.
Silent Scream, The. Produced and Directed by Jack Duane Dabner. Anaheim, Cal.: Amer. Portrait Films.
Shriner, T.L. "Maternal Rights Versus Fetal Rights--A Clinical Dilemma." Obstetrics and Gynecology 1979; 53(4): 518-519.
Strong, C. "Ethical Conflicts Between Mother and Fetus in Obstetrics. Clinical Perinatology 14(2).
Sturgess, Robert. "In Re: A.C.: A court Ordered Caesarean Becomes Precedent for Nonconsensual Organ Harvesting." NOVA Law Review 1989; 13(2): 649-669.
Thornburgh vs American College of Obstetricians and Gynecologists, 106 S Ct 2101(1986).
Forced Medical Treatment of Pregnant Patients Ian Jenkins
A refusal of treatment evokes some of the greatest fears of a physician who believes the patient to be at risk. When the patient is a full-term pregnant woman and the infant is also at risk, and if the mother refuses treatment out of ignorance, superstition or even as part of an overt plan to injure the child, the case becomes an obstetrician's nightmare. The doctor must either wait for damage to take place, or violate his or her patient's wishes and administer forced therapy, leaving behind the roles of helper and partner for that of enforcer. Despite the obvious importance of a full term fetus, forced treatment of pregnant patients has been criticized for violating patient autonomy, right to bodily integrity, and sometimes religious beliefs, for setting a dangerous precedent and violating the law, and for constituting a extraordinary and irrational demand on women.
The conflict over the two choices arose in the late seventies and continues to the present, where it more often takes the form of punishment for women who use or otherwise act irresponsibly drugs during pregnancy. With few exceptions, ethical and legal analyses of forced treatment conclude it is unjustified and sets a disturbing precedent for state control over private lives. Nancy Rhoden's conclusion, "It is far better that some tragic private wrongs transpire than that state-imposed coercion of pregnant women become part of our legal landscape" is one example (1953.) Yet support for compelling women to act as beneficently as possible has been strikingly popular among obstetricians. In a 1987 report in the New England Journal of Medicine, Kolder et al noted that nearly half—46% percent--of the "heads of fellowship programs in maternal-fetal medicine thought that women who refused medical advice and thereby endangered the life of the fetus should be detained, and 47% supported court orders for forced medical treatment (1192). In fact seventy-six percent of the study's respondents denied at some point that competent pregnant women had a right to refuse medical treatment. In 26 states, obstetricians had sought court orders to override maternal refusals of treatment; in 11 states those court orders mandated cesarean sections (1194).
Although the concept of forced medical treatment began with the drama of a mother refusing treatment during labor, when interventions on behalf of the fetus would be obviously indicated were it not located inside another person, forced medical treatment of pregnant women takes other forms. Drug use during pregnancy conjures up images of forced treatment. In fact, the Medical University of South Carolina's "Interagency Policy on Management of Substance Abuse During Pregnancy" directed that pregnant patients testing positive for drugs receive a letter warning "if you fail to attend Substance Abuse and Pre-Natal care you will be arrested by ... City Police and prosecuted" (Jos 121). Here the drug abuse is the condition that compels treatment. A fetal protectionist regulation of women's employment choices also could result in forced or coerced treatment. Could not Johnson Controls, a battery manufacturer that barred women (unless sterile) from jobs that could have exposed them (and their fetuses) to lead, compromised with rules that mandated either pregnancy tests or blood lead level tests for female workers (see Daniels chap 3)?
Forced treatment has won the approval of a large number of doctors, many judges, and others, despite the exceptional nature of the proposed intervention. Any competent adult has the right to refuse medical treatment, supporters seem to say, except pregnant women, whose objections and often religious rights (See Hastings Center Report Vol 18 #1 pg 18 1988) need to be overridden in the interest of their fetuses. Perhaps the best way to understand the phenomenon of forced medical treatment for pregnant women is to compare it to interventions that are not being suggested by physicians--that is, invasions of bodily integrity that are almost wholly condemned by doctors, the law, and society at large. Cynthia Daniels catalogs these forbidden actions in her book At Women's Expense: robbery suspects may refuse any surgery needed to remove critical evidence from their bodies. Suspected drug dealers may refuse to have their stomachs pumped if they swallow evidence. Suspected rapists may refuse to take an HIV test. Parents may refuse to donate organs to their children, even if the child will die without them, even if the lost tissue will regenerate, as in a bone marrow transplant. And even cadavers may not be violated without their prior consent or that of a family member in most situations. Yet in thirty six cases women have been subjected to forced medical treatment, placing them, on some level, below cadavers (33), and also below involuntarily committed mental patients, who may also refuse medical treatment (Johnsen 37). Lieberman et al write, apparently astounded, "So we have the absurd: that the law consents to the fetus having material rights, at the same time that his right to life is an unsettled question" (516). The unstated assumption, applicable only in the case of maternal fetal conflict: if one has a right to life, one has a right to force others to undergo surgery. The closest analogy to forced medical treatment of pregnant women "would be an organ 'donation' over the explicit refusal of a competent adult, and such an order would be profoundly at odds with our legal tradition," writes Kolder et al (1194). She note that judges who understand this point reject requests to force pregnant women to receive treatment by making the analogy to organ donation precedent. There must be powerful social forces pertaining to birth and women's roles that allow pregnant women's bodies to be violated in the interest of a fetus—rules that do not operate when a woman who refused to be an organ donor when alive would not be similarly violated after death.
The Transparent Mother
The first step in the development of a conception of pregnant women that allows then lesser rights to bodily integrity than other citizens seems innocuous enough--coming to see them as separate and distinct from their fetuses. The early notions of the pregnant woman as single unit, with the fetus as part of her, gave way to the current conceptions of fetus and mother as separate and often in conflict, during the 70's and early 80's. Conception, once invisible, private, became public and observable with the advent of test-tube baby technology. Use of ultrasound and intrauterine photography invited the observer to conceive of a fetus within a woman, rather than a pregnant woman. The rise of abortion rights first in states like New York, and then nationally with Roe v Wade, with the corresponding development of anti-abortion rhetoric, helped transform the matter further, from separate "mother with child" to opposed "mother against child." One recalls a common type of anti-abortion graphic where women are shown speaking on their needs and rights or waving signs--with the cartooned thoughts of their fetuses rising unheard from their wombs: "I want to live!" or "What about my rights?" Thus from the 1884 conception of pregnancy captured in the Dietrich case, where a woman who miscarried after a fall on a defective highway lost all rights to damages because the fetus was "part of the mother at the time of the injury," (Daniels 11), we have now moved to the 1990's conception of cocaine using women who "abuse" and "neglect" their unborn children, who, though quite dependent on their mothers biologically, are quite independent ideologically.
Many of these changes can be placed in the context of 80's antiabortion rhetoric. In the 1983 antiabortion film The Silent Scream, narrator Bernard Nathanson describes his transformation from NARAL (National Abortion Rights Action League) co-founder to staunch anti-abortionist. The most important contributor to his change of heart was the development of the science of "fetology" which Nathanson claims came into existence after he cofounded NARAL and brought him stunning new knowledge about the status of the fetus. He displays as the fruit of fetology a series of models of the fetus at different stages of development, implying that doctors were ignorant of the development of the fetus prior to the 1970s. The most important contributor to his change of heart is the ultrasound machine, which allows him to display on TV real-time images of the fetus (about to be aborted) moving independently of the mother, who has become completely transparent. She is the "maternal environment" and "contains" the fetus, but, like the wood-grained box that surrounds Nathanson's TV screen displaying the fetus, is unnoticed and absent. In some of Nathanson's other rhetoric the fetus floats innocently in the womb, like an astronaut tied loosely to the "'mother ship'" and who feels gravity for the first time during birth. Complains Barbara Rothman, this metaphor transforms the woman into "empty space," the vacuum--a location for the interesting events to take place but in other ways not worth considering at all (The Tentative Pregnancy, NY Viking Press 1986, quoted in Daniels 21). Ultrasound has the effect on bonding the mother to the infant; her obstetrician may also look to the screen and bond to the fetus, to see it as a separate entity. He or she may also generalize this experience to all fetuses. Nathanson's Silent Scream narration claims that the abortionist whose procedure is depicted underwent a stunning change of heart after witnessing the fetus on screen, and never again performed an abortion. Doctors now have two patients where before they had one—the old conception of the fetus of part of the woman has been shattered.
This new conception of the fetus translates directly into forced-treatment ideology. Bowes, for one, quotes from the same passage in William's Obstetrics used to condemn abortions in "The Silent Scream": "'The fetus has rightfully achieved the status of the second patient, a patient who usually faces much greater risks of serious morbidity and mortality than does the mother'" (213).
Along with ultrasound, other advances in obstetrics have separated fetus from mother. Advances in technology have pushed back the point of viability--the point at which the fetus can be regarded as fully separate from the mother if its location is not considered--to the point where premature babies that fit comfortably into one hand have been saved. The popular conception of viability has exceeded even this feat; President Reagan once noted that even three month fetuses has been born prematurely and survived, (Daniels 18) despite the medical consensus that these fetuses would have remained three months short of sufficient lung development (at 24 weeks). Prenatal surgery, despite a low rate of success (4 of the first 17 "tiniest patients" survived (39)), has cemented the status of the fetus as second patient. Such surgeries may involve removing and replacing the fetus from its uterine home. Writes Daniels, "Each of these technological developments was seized upon by the media as a medical marvel as well as by anti-abortion advocates in their own campaign to promote the fetus as a person... they shift the power of procreation and pregnancy away from women toward the social institutions of science and the state" (19). Lastly, brain-dead women have been maintained on life support to save their fetuses—present only as the ultimate fetal containers, mere incubators without wants or needs who serve as powerful symbols of the maternal-fetal dichotomy. In one case reported by Newsweek, one legally brain dead woman was kept on life support for 53 days to save her fetus, and physicians have recommended "vigorous" life support for brain-dead mothers to permit c-sections to be performed, perhaps weeks later (Dillon 1090). The fetus has become treatable, even if housed in a dead mother, and doctors now find that technological barriers no longer stand in the way of successful therapy. Women themselves stand between the doctor and the treatable fetus—when the disease is curable, the problem is resolved except for lack of consent. The woman is the sole remaining "cause" of the problem. According to the one judge in a forced treatment case, the fetus is "'literally captive within it's mother's body'" (Annas "Foreclosing"28).
Rhetorically, the pregnant woman has been separated into mother and child, the mother and the child are often depicted in conflict, and the mother often appears transparent, allowing the viewer to see the fetus directly without dealing with the concerns of the mother. This final step is an important one, as Nathanson's, and Bowes and Selgestad's use of the Williams Obstetrics quote comparing maternal and fetal risks reveals. Just because a famous medical text states that the fetus has serious and pressing medical needs, it does not follow that those needs are secondary to the autonomy and health of the mother. What is the justification for favoring the fetus over the mother, as Bowes and Selgestad claim physicians should (213)?
Many of the reasons are social. There can be no doubt that gender issues enter the debate over forced treatment and medical control of women during pregnancy. Johnson Controls, justifying women's exclusion from a job that could expose them (and their fetuses) to lead referred not to "male and female workers" nor "mothers and fathers," but "male workers" and "mothers" (Daniels 75). Emily Martin's seminal work "The Woman in the Body" discusses social forces and how they relate to women's experiences with gynecology and obstetrics, and suggests a number of ways the pregnant woman could be made a special case, the one not allowed to refuse medical care, by gender assumptions and social forces in the delivery room.
The Doctor Gives Birth
While reading Martin's book one realizes there is an expectation that laboring women will come under the supervision of doctors. There is a further assumption that doctors will monitor and assist birth through a variety of interventions like hormone administration, forceps delivery, c-section, episiotomy, breaking the membranes, and so on. The routine medicalization of birth is a force that justifies and even necessitates these actions, and women who refuse them violate rules of behavior.
In a medicalized birth health care professionals, more than laboring women, are in charge of labor. Lieberman et al tellingly use the phrasing "until the woman has been delivered of her child" rather than "until she has given birth" (516) and Martin points out the growing trend to view the physician mediated c-section birth as superior to the mother-mediated vaginal birth (64) as well as to remove the woman from the process rhetorically by attributing effort to "the uterus" rather than her (62), and separating her body from her mind (58, 62-3). Labor is timed and evaluated frequently; any number of signs or long labors within normal limits can lead to c-sections (60,63). Overall, the process cannot seem to be at a standstill or beyond the control of the supervising medical staff [Bowes and Selgestad describe a "devastating sense helplessness as nurses and physicians stood by observing the ominous FHR (fetal heart rate) patterns hour after hour while administrative and legal procedures took place to resolve the situation" (211)]. In many cases women feel that they lose control over normal births; when labor goes awry, the pressures to intervene despite the patient’s objections are many.
The Heroine Mother
Women are praised for sacrifice in the name of the fetus, though most public conceptions of maternal rights, however, praise these sacrifices but mandate that they remain voluntary—see, for example, the majority opinion in Planned Parenthood v Casey. Popular media examples of the mother who dies for her baby include the plays Les Miserables and Miss Saigon, in which a mother saves a child by working herself to death or by coercing a father to take the child after she kills herself. The Seventh Seal, a motion picture starring Demi Moore, involves a woman whose heroic decision to die for her baby in childbirth redeems the sins of the world and saves it from the destruction of the Revelation. "I will die for my baby!" she says several times at the climax of the film. E.R., a popular television show, featured a cancer stricken mother who forgoes aggressive therapy since it would doom her fetus; she claims the decision was simple: "My life is ending. Hers has barely begun." In the case of Angela Carder, a real-life cancer patient who, near death, refused a risky c-section to attempt to salvage her fetus, this attitude was (perhaps sensibly) lacking, because the fetus was too young for a realistic chance of success; it had already been starved of oxygen by her mother's illness, and the operation would almost surely hasten her death. But despite these rational reasons for refusing the operation, Carder underwent an involuntary c-section. Had she done what her doctors had expected, she might have entered the popular media, in death, as a martyred heroine. Heroics were expected of this dying woman.
Bowes and Selgestad establish that there are two patients in the delivery room, then asks which of the two must have priority in a conflict. The authors never get around to stating so explicitly, but they favor the fetus, claiming that "Roe v Wade allows the state to assert an interest in the protection of potential life in the fetus once it has reached a stage of viability... health professionals [should] assert the same interest" (213). In fact, in a discussion of risk they note: usually "the mother is willing to accept added risks of morbidity and mortality in the interest of her unborn infant. However when [she refuses], the physician is faced with the dilemma of making decisions with regard to one patient that are inimical to the health of the other" (214). It is standard for the mother to bear risks for the fetus and the authors have no problem subordinating her to the fetus; when the mother claims to have priority, suddenly an unacceptable tradeoff is made. The natural role of the mother is to accept risk for the fetus.
Women who violate this role appear fairly unintelligent to advocates of compulsory medical treatment. To Lieberman et al, it is clear that sometimes obstetricians simply must override the objections of a stupid patient: it is absurd to have to comply with the wishes of a patient whose "refusal resulted from the mother's ignorance and prejudice, which prevented her from arriving at an intelligent decision (516). Notes Elvoy Raines: "if the patient refuses care in the face of a pressing [fetal] need for it, this may be evidence of incompetence" (598). Here, apparently, a woman is free to choose her doctor’s suggested course of action. If she disagrees, she is incompetent and her doctors should take over for her. In contrast, patients who refuse care necessary to save their own lives have capacity to make their own decisions even if their values are at odds with their doctors.
This conception of consent places a burden of proof on women, whose freedom to choose for themselves is remarkably constrained: "The burden will be on the [woman]...to prove by a preponderance of the evidence that a reasonably prudent person in the patient's circumstances would have refused to undergo the proposed procedure" (599). Competent women consent; only incompetent women refuse, but their consent is irrelevant. Bowes and Selgestad insist that a court who authorized the removal of a kidney from an incompetent person to save a sibling has implicitly authorized forced medical treatment of women (213). Therefore women who do not consent to treatment advised by doctors are incompetent?
Anti-Moms: Innocent Babies, Vindictive Mothers
There is another connection to antiabortion literature in the innocence of the fetus: the obstetrician must choose between the innocent fetus and a mother who is far from angelic, unwilling to undertake risks and make sacrifices the physician believes a reasonable mother should. The woman is quite often sinful, possessing downright murderous attitudes toward the fetus and indicating that her selfishness takes precedence over the very life of her baby. Jurow notes that his patient "stated that if the fetus would die, it would solve her already complicated life situation" (597). The situation presented involved a woman who was living with a boyfriend--not the father of the child. With a mother in labor refusing treatment, after "fear of surgery, difficulty with the language, and inadequate rapport between doctor and patient," as well as "prejudice [and] ignorance," have been conquered, then only "an occult [or hidden] reason" can explain the refusal, writes Leiberman et al (515). One patient who "stubbornly refused" to submit to a c-section told a nurse "she was not disappointed and that the death of the fetus solved complicated personal problems"—this despite the claim that no mother with an occult desire for the fetus to die would "share her secret thoughts." In fact, Lieberman's second case of an occult reason lists the cause of the refusal for surgery to be "fear of dying"--the only proof that she actually intended malice to her child is the force of the author's speculation that her alibi was "almost perfect" but false.
The same conception was seen in the policy discussions the organized responses to drug-using mothers, during which "outrage at the behavior of the pregnant women was expressed" (Jos 122) despite the fact that "ability to make informed choices is precisely what cocaine so often destroys" (124). The problem is the same: the norm of the maternal fetal relationship is utterly violated. "Ingesting illegal drugs while pregnant is a potent symbol of selfishness and irresponsibility. Compromising the health of one's yet to be born child to satisfy physical desires is anathema to the common expectation that mothers should protect their children" (124). One outcome of policy makers' increasing use of the "moral norm" model (with mothers as "victimizers of innocent babies") for the "coke baby" problem, as opposed to a disease model (addict as patient, drug use as disease) was a shift toward a more punitive based, rather than treatment based, policy (124). Pragmatism gave way to punishment when resources to help mothers use therapy (child care, transportation) were turned down: allowing these expenditures would "'[blame] society'" for individual responsibility, claimed crafters of the policy who explicitly rejected them (126). Some advocates of limiting maternal drug use make their contempt for pregnant drug abusers explicit: "In very simple language, [they] should be jailed... forced sterilization for some of these people" (Daniels 121).
Daniels believes the conception of the anti-mom is the greatest contributor to pregnant women's loss of rights. There must be a principle that makes the case for violating women more compelling to some doctors than the case for violating cadavers, that makes some lower courts abandon their commitment to bodily integrity and fourth amendment rights against "unreasonable searches and seizures" of the citizens' "persons" (33). It is a "social climate which pictured women as either vindictive, ignorant, or irrational. While a man's refusal to submit to a medical procedure could be defended as rational, a woman's ... could not" (35).
Legal Standing
The picture is not complete, but it is illuminating. The fetus is a separate, independent entity, contained within the mother, and now treatable, should the mother permit the treatment. The problem then, is not the organic cause of fetal distress but the mother who forbids doctors to treat it. And this mother is not only an obstacle to treatment but a "bad mother," who harbors malice toward the child and is unwilling to live up to her societies motherly standard of self-sacrifice.
Socially, a convincing argument to some. But what are the legal justifications for forced treatment? They begin with a transformation in the law from that 1884 Dietrich case, where a mother was afforded no compensation for her lost fetus because the fetus was "part of her." That ruling failed to recognize the very real loss—even in a country where abortion is legal (though restrictable) up to viability for any and for no reason, and legal thereafter for health concerns—that prospective parents feel on the loss of a child. Later legal action tried to compensate the parents for fetal harm. The 1946 Bonbrest v. Kotz ruling allowed a father (not a fetus) to be compensated for harm before birth caused by a doctor; other cases extended this right to accident victims and the like (Daniels 11). Kolder et al note that in these cases fetal death applies to wrongful death statutes only as an effort to "compensate prospective parents for their loss" and not to indicate that the fetus was a person whose rights were violated (1194). By 1960 the fetus itself collected damages. In Brennan v. Smith a pre-viable fetus earned the right to compensation because after birth, it would suffer the same harm as a viable fetus (12). Though one's ability to collect damages for actions that occur before birth, and even before conception, is increasing (Shriner 518, Daniels 12), most states recognize such rights as contingent upon a live birth (Daniels 13, Kolder 1194).
Laws were also passed to allow women to collect damages for fatal fetal injuries. Beginning in 1984, states began to recognize the fetus as a person in feticide laws, with at least ten doing so through 1993 (Daniels 15). However, none of these changes obligated anyone to unusual duties to the fetus like those said to be required of pregnant women. They merely restrained people from acting to harm it, or in the case of physicians negligently failing to perform an indicated procedure desired by the mother. This not-so-subtle distinction is ignored by many discussions on the topic written by compulsory treatment advocates, and laws acknowledging the value of the fetus or even its right to inherit are said to indicate that the fetus has a right to life, a life protectable through the forced surgery of others (see Bowes and Selgestad 213, Lieberman et al 516).
There are three major cases cited by most advocates of forced treatment: Raleigh Fitkin v Anderson (1964), in which a pregnant Jehovah's Witness was ordered to undergo a intrauterine transfusion to save her unborn child, over her express wishes and religious beliefs; the 1981 Jefferson v Griffin Spalding; and Roe v Wade. [Another, the Georgetown case, is cited by Bowes and Selgestad, and Jurow and Paul, but involves the transfusion of an incapacitated Jehovah's Witness, not an awake, competent, pregnant patient (Nelson 231)]. The first two are the only reported appellate cases supporting forced treatment and neither "rests on a strong legal foundation" (Nelson 231).
Raleigh, said to justify compulsory medical treatment, was decided in 1964, before Roe v Wade and its accompanying emphasis on the right to privacy and self-determination in issues of medical procedures like abortion (Kolder 1194-5). It also mandated a minimally invasive procedure (intrauterine transfusion), as opposed to a c-section, it was a moot case and was never enforced, since the mother left the hospital before it was rendered, and it mandated a procedure it believed the mother actually desired to save her child (though she could not choose it herself as a Jehovah's Witness, she was presumed to accept it being forced upon her (see Annas, "Forced"). Further, the opinion was "brief and devoid of policy discussion" (Nelson 232). Nevertheless Bowes et al claim that the case "squarely addressed the issue that treatment of the mother can be ordered to safeguard the rights and life of the unborn fetus (212)."
Jefferson's flaws involved misinterpretation of Roe (see below). Even a concurring judge wrote that the juvenile courts had no jurisdiction unless the child had been born (Nelson 232), and there was little justification for breaking from this precedent, or policy discussion, in the two sentence opinion of the parent's appeal of a lower court's order (Annas, "Forced" 16, Daniels 25).
Lastly, Roe v Wade and its progeny have also been offered as support for compulsory medical treatment, since it mentions a "compelling interest" in fetal life (Kolder 1194). The reasoning is that if the state has a compelling interest in a fetus after viability, one that allows it to ban certain abortions in the third trimester, it can compel women to surgery in order to further that interest. Commentators who have used this line of reasoning include Bowes and Selgestad (1981), Bross and Meredyth (1979), Robertson (1982), and Landwirth (1987); the reasoning was also followed by the Georgia court that decided the 1981 case Jefferson vs Griffin Spalding County Hospital Authority. However, Nelson (228) calls this reasoning erroneous and the "most common and serious oversight made" in the maternal-fetal conflict debate, since the Roe ruling does not grant unlimited fetal protection power to the state after viability. Women may always obtain abortions in the interest of their lives and health. In fact it only permits and does not mandate the state to protect the fetus, whenever such efforts do not compromise the health of the mother (and anesthesia and surgery are clearly health risks). It makes absolutely no comment on forced treatment of any kind. A judge contributing to the reversal of Angela Carder's forced c-section noted the Roe never gives the fetus equal status with, much less priority over, the mother in any point in pregnancy (Curran 492).
The progeny of Roe provide even more pointed counterpoints to the "compelling interest" logic above. "Standing Supreme Court decisions have rejected claims that maternal rights can be overwhelmed by fetal rights... the Court has refused to accept that [Roe v Wade's 'compelling state interest'] in protecting viable fetuses allows or sanctions compulsory treatment of the mother" (Jos 122). For instance, the 1979 Coluatti v Franklin decision defeated a statute that allowed a fetal interest to take precedence over maternal health; as Kolder et al point out, the 1986 Thornburgh vs American College of Obstetricians and Gynecologists decision establish that a woman's health and safety takes precedence over fetal rights at any point in pregnancy (1194).
Thus the bulk of judicial holdings guarantees maternal rights immunity from fetal claims. Some lower courts have favored fetal health over maternal rights in the case of maternal substance abuse (Jos 122) but none of these rulings have been upheld in higher courts (123). In fact most of the legal cases concerning forced medical treatment contain little legal analysis and frequently fail to recognize the unique relationship between mother and fetus—and act instead as if they were simply ordering the treatment of a child over the parents wishes, rather than mandating therapy for the woman as well (Johnsen 34).
Liability: NonAction
To many doctors writing about the issue, the moral and legal justifications for forced treatment are only part of the debate—they are strongly interested in remaining immune to legal action after a child dies because they failed to treat a non-consenting woman, or after a woman is subjected to that treatment. In either case the physician feels threatened. Bowes and Selgestad loudly proclaim that "Potential Liability of physicians requires [the] proper court action" of enforcing medical advice over the patients objections (213). Their solution, which "protects all parties from ...potential liabilities" is court-ordered medical intervention (which obviously does not protect the mother from unwanted surgery). They fear not just charges of negligence or malpractice but murder: "There was concern that the patient's family would bring charges of professional or institutional negligence in the event the infant or the mother died or was seriously injured as a result of inaction" (211). The authors point out that if a fetus is born alive and dies as a result of injury before birth, it may be a victim of murder, and "physicians might run the risk of prosecution for homicide in the performance of their duties." Yet they fail to discuss the enormous gaps between intentional harm and failure to treat, or between failure to perform an indicated operation and inability to do so despite the best efforts of the doctors. Their entire discussion equates failure to perform a needed procedure with failure to strap a woman to a table and perform surgery on her against her wishes and/or religious beliefs, as if her desires were completely irrelevant to the entire debate. Would the authors honestly believe that a physician could be held liable for failing to forcibly perform surgery?
Jurow also reported that a child in the process of birth should be considered a "human being within the meaning of a homicide statute." He suggests that non-action might actually be murder, without bothering to discuss the distinction between the established wrongness of killing a child minutes before birth and the proposed rightness of forcibly treating another person to save the child from a death from natural causes (598). And Lieberman et al assure the reader that failure to consent to an emergency c-section is "a felony" (515, 517) and any doctor who does not override a patient's wishes and perform surgery is "a passive accomplice" to that felony (516). Would either author support a forced organ transplantation from a mother for a child of nine, obviously a person within the meaning of a homicide statute?
Despite these worries, "there is no affirmative legal duty on the part of the clinician to seek a court order in these circumstances...there is no reported case of a court imposing civil damages on any physician for failing to seek judicial review of any competent adult's refusal of treatment" (Nelson 227, citing Kolder et al (1987) and Nelson et al (1986); see Nelson 232). In fact, seeking court orders may prove counter productive for obstetricians seeking to avoid liability. Kolder (1196) points out that seeking court orders may ironically give rise to a higher standard of care and greater liability. Once such dramatic interventions become the norm, the reasoning goes, physicians will be required to seek them in certain cases, and may be liable if a condition they deemed not serious enough to merit forced treatment is found otherwise by a jury. Currently physicians are not required to seek court orders and cannot be found liable for failing to force treatment on a mother.
Liability: Action
On the other hand, there is a significant issue of liability for doctors who do forced treatment on women, who would be guilty of batter, whatever their motivations or competence at performing the procedure. Forced surgery would constitute a grave insult to personal autonomy and bodily integrity, even if it did not involve additional risks to the mother, which it of course does. C-sections are major surgery and in many of the forced treatment cases are performed under general anesthesia--they are no small incident in a woman's life. To make matters worse, the doctor's malpractice insurance might not cover the intentional, rather than negligent, act, and the doctor could also be responsible for breaching confidentiality, invading privacy, or inflicting emotional distress. Saving the life of the fetus may be a positive outcome of the battery, but one a jury never hears of since it is irrelevant to the criminal charge and the harm faced by the woman (Nelson 233).
The Issue of Error
Inevitable uncertainty in a diagnosis can make the liability of physicians all the greater. Rothman (25) pointed out in a critique of forced treatment that the past advice of obstetricians regarding DES treatment, diuretics, limiting weight gain, and x rays is now considered incorrect. The clearest candidate for a more modern over-prescribed treatment is the c-section, with some doctors advising vaginal birth with "selected patients only" (Martin 60). Doctors seeking court orders to treat non-consenting pregnant patients are forcing a major burden on them, potentially without reason.
In many cases where doctors cite the need for immediate action to save the fetus, the predicted damage does not occur: Kolder reports that the predicted fetal harm did not occur in six of the 16 cases where outcome was reported (1195). In 1981, Jessie Mae Jefferson, said to be facing a 99% chance of fetal death, and 50% chance of own death without a Caesarean section, gave birth vaginally before the surgery could be performed (Daniels 45). In 1982, a woman told she would be forcibly taken to the hospital for a cesarean section went into hiding, then gave birth to a healthy baby two weeks later (Daniels 34). And in the case reported by Bowes et al, the child born after the compulsory c-section has a "prompt response to resuscitation" and "normal growth and development." The authors conclude: "That a more asphyxiated infant with poor neonatal outcome did not result after so long a duration of apparent fetal distress simply underscores the limitations of continuous fetal heart monitoring as a means of predicting neonatal outcome" (211). The outcome of the infant could have made a court case for assault difficult for the doctors to win, given that their prediction of dire harm used to justify the operation turned out to be largely incorrect. The matter would have turned out even worse for them since their patient, labeled both "morbidly obese" and "angry and uncooperative" (209) might have resisted the administration of the anesthesia: after the judge's order, the patient's attitude "fortunately... became one of reluctant acceptance and compliance. Had [she] steadfastly refused, it might not have been...safe...to administer anesthesia to a struggling, resistant woman how weighed in excess of 157.5 kg." Their obese patient faced greater than usual risks for surgery--"mortality, aspiration, hemorrhage, wound infection, wound hernia, and... thromboembolism" (211); how would this list of complications sound to a jury contemplating punitive damages? As it turned out, their patient did have a delayed healing of her incision (210) because of her weight and resulting depth of the wound.
Uncertainty increases the risk of liability for the doctor, since the particular fetus in question may turn out to be in no danger and the particular woman subjected to invasion needlessly, or since the reliability of such diagnoses in general could be shown to be unreliable and thus an insufficient justification for forced surgery. Uncertainty also results in an affront to the woman. As Kolder et al pointed out, "physicians are quick to embrace uncertainty as a justification for their errors, [but] they are less quick to recognize its effect on patient self-determination"—that is, women unlike doctors, are not allowed to err. Thus the court-appointed lawyer for cancer patient Angela Carder's fetus claims that parental objections to therapy are irrelevant, as if doctors have an unconstrained right to administer whatever therapy they see fit: "neither parent is a trained physician" (Annas, "Foreclosing" 28). Robertson writes that c-sections are often performed unnecessarily but nevertheless recommends criminal charges for women who refuse them ("Children" 187,190; "PKU" 28). This despite Elias and Annas' point that "it seems wrong to say that patients have the right to be wrong in all cases except pregnancy" (both at Nelson 234). However, recall that Lieberman et al it is sometimes necessary to simply override the wishes of a patient who is "ignoran[t] and prejudice[d]" and could not make an "intelligent decision" (516).
This is not to say that even a certain diagnosis of impending fetal death could protect physicians from liability. In one case where the physician's diagnosis justifying forced treatment turns out to be correct, Jurow reports that "the preoperative diagnosis was definitive and was substantiated by the acid-base status and Apgar scores of the newborn." Liability, for this group of health care providers, would not turned on the health or illness of the fetus they may have rescued, but their performance of an involuntary procedure with no time for reflection, no court order, and no court consultation. Clearly they ignored their own call to act under "well-thought-out guidelines that safeguard and protect both the rights of the fetus and the mother" (598).
Forced Treatment As Unsound Policy:
If the legal justification of forced treatment stands on shaky ground, so does its actual enforcement. The adversarial hearing emphasizes argument over conflict resolution (Obade "Compelling" 87) and the limited time frame for court ordered interventions places tremendous pressure on judges called upon to evaluate mothers who refuse to consent to treatment (Annas, "Forced" 17, "She's" 25) just as it limits the precedent value of such cases, since the judge had little time to make a good decision. Daniels points out that in none of the 21 cases in Kolder's study was the woman's competence properly assessed; in 90% of the court ordered treatments, orders were received in less than six hours—with likely effects being poor judgment, improper attention to the facts, inadequate representation for the woman (1195). In the Angela Carder case, the judge was rushed to hospital by police escort (Annas "She's" 23) and ended up basing his decision on one clearly distinguishable case, the only one available to him. The Appellate Court noted that Ms. Carder's personal physician was not even notified of the hearing and testified later that a c-section was in neither the mother's nor fetus' interests (Annas "Foreclosing" 29) and wrote in its opinion that legal preparations were "so minimal neither the court nor counsel (ever) mentioned the doctrine of substituted judgement" (Obade, "In Re AC,"). Such constraints make enforcement of any future forced surgery laws "immensely impractical...even a minimally adequate judicial proceeding would take more time than a prolapsed umbilical cord would permit" (Shriner 519).
Kolder noted that forced treatments were arbitrary in another way—strongly biased against minorities, whether cultural or racial, as well as against the poor. Doctors have much more authority over the clinic patient than the private patient. Daniels noted that pregnant black women were ten times as likely to have their drug abuse reported than white drug abusers (127), and Martin noted that blacks are more likely to receive c-sections for vague causes--as a form of control over their bodies, she concluded--that predisposes them to forced therapy (151).
Forced treatment measures may be counterproductive as well as arbitrary. The American College of Obstetricians and Gynecologists has warned that "'Clinicians should be aware of the destructive effect of court orders on the pregnant women's autonomy and on the physician patient relationship'" so that "'Resort to the courts is almost never justified'" (Daniels 52). Physician-enforcers would not be attractive to patients, especially ones with the mistrust of medicine that often contributes to refusals of treatment in the first place. How would a doctor recommending forcible restraint and anesthetization of patients recruit the patients whose fetuses he wanted to help (see Hastings Center Report 18:1 pg 18)? "Warnings of felony conjure up the policeman, not the obstetrician," (Shriner 518) and many authors have addressed the potential to drive women away from care, resulting in more fetal injuries (see Nelson 236 for one example). Lastly one has to wonder if fetal benefit or maternal punishment is the aim when examining some of these maternal-fetal conflict cases. Paternal exposure to toxins is rarely regulated but adversely affects fetal health (Daniels 128) and the largest threats to fetal health caused by poor nutrition, but little fetal protectionism rhetoric can be found in support of nutrition programs (125). Fetal protectionism might have had an entirey different history if stories of the anti-mom didn't outrage Americans and warp perceptions of fetal harm.
Forced treatments would become even more threatening as their potential to spread throughout pregnancy (and beyond) was recognized. Many ordinary activities of pregnant women contribute to far greater fetal hazards (globally speaking) than late term treatment refusals, and these habits could be regulated with less invasion that a c-section involves. Expanded surveillance and control of pregnant women could result. Nelson (236) warns, "An effective public policy designed to prevent fetal harm would require extensive monitoring of and possible interference with [eating, drinking, sexual intercourse, physical activity, working]. This would entail an unprecedented social intrusion into the homes and private lives of pregnant women and their families." Writes Kolder et al, "acceptance of forced cesarean sections, hospital detentions, and intrauterine transfusions may trigger demands for ordered prenatal screening, fetal surgery, and restrictions on the diet, work, athletic activity, and sexual activity of pregnant women" (1195). As evidence the authors note that "a 16-year old pregnant girl in Wisconsin has been held in secure detention for the sake of her fetus because she tended to "be on the run" and to "lack motivation or ability to seek prenatal care"--an obvious case of an invasion of the woman's freedom when fetal harm was uncertain and her only crime was failure to be the best possible mother. Forced hospitalization and treatment of a similar woman who would not manage her diabetes in the way that "minimized" the risk to her fetus was supported by Mackenzie and Nagel. Both cases suggest that control of women could spread from acute cases to general prenatal care. Annas ("Fetal Containers") discusses the prosecution of a mother for failure to provide "medical attendance" for ignoring doctor's advice not to take amphetamines or engage in intercourse, actions which resulted in the birth of a brain-damaged son and his subsequent death. He warns that "advice" must not "orders" before the state gets in the habit of treating women as "inert incubators" and invading their lives for their fetuses' sake.
Robertson ("PKU"), who recommends child abuse charges for women who fail to get c-sections on the advice of their physicians (28), reassuringly notes there is no danger of a "slippery slope" whatsoever, but he goes on to suggest that as fetal surgery becomes more effective, it should become mandatory, and recommends instituting child abuse charges for women who fail to get c-sections. After all, parents, "by conceiving children, may have culpably created the unborn child's need and thus may be appropriately assigned the duty to relieve it" (30). He claims that women who choose not to abort children waive certain rights to bodily integrity (see "Children," chap.
that reasonably caring women could be expected to forego. Daniels (47, 53) reminds us to some, women can be expected to die for their children, as justifications for forced treatment of Angela Carder's (explaining that the invasion was minor since she was nearly dead; see Annas, "Foreclosing") and her subsequent death suggest. If some women should die for their babies, it's not unreasonable to ask pregnant women to undergo mandatory observation and a treatment regimen, and Robertson also suggests monitoring drug use and employment choices (Daniels 25). He is aware of the parallel between forced cesareans and forced organ donation, and has recommended both (Children 193). For more information on the c-section organ "donation" link, see Sturgess, "In Re: A.C.: A Court Ordered Cesarean becomes Precedent for Nonconsensual Organ Harvesting." Yet the reader is expected to take Robertson's word that forced treatment of pregnant women would not lead to other invasions.The Carder Case: The Last Chapter?
Supporters of the pregnant woman's right to autonomy and freedom from unwanted treatment should take heart in the reversal of Angela Carder's court-ordered c-section. Not one of the District of Columbia Court of Appeals dissented from the central holding of the decision, that women should be able to make treatment decisions for themselves without having them weighed against fetal interests (Curran 49). Carder case was groundbreaking, marking the first time a federal court heard full testimony in a pregnancy/forced treatment case, and the decision, in favor of Carder's family, asserted that pregnant women should make decisions for themselves in "virtually all" cases. The AMA, American College of Obstetricians and Gynecologists, and the American Society of Law and Medicine issued statements defending women's right to make those decisions (Daniels 50), and most parties involved seem to have taken note of the laundry list of problems with forced therapy. However, there are reasons for concern. Carder was white, but most interventions are forced on minorities. Her commitment to motherhood was clear (she did want her baby), unlike the anti-mothers who so provoke fetal protectionism in obstetricians, and she was cast as a dying patient rather than a resistant mother. Thus the case did not squarely defeat forced treatment (Daniels 50-52), at least not in its most common incarnation. And while late-term forced treatments have subsided, the issue has by no means been laid to rest. Forced treatment's relative, prosecution of pregnant drug abusers, continues, and just under 75% of states with living will laws restrict the pregnant woman's right to die, 20 of them without exception (Daniels 34) forcing medical treatment on them in the last days of their lives and reiterating their role within the issue of forced c-sections: fetal containers.
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WORKS CITED
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Annas, George. "Foreclosing the Use of Force: A.C. Reversed." Hastings Center Report 1990; 20(Jul-Aug): 27-9.
Annas, George. "Pregnant Women as Fetal Containers." Hastings Center Report 1986; 16(6): 13-15.
Annas, George. "Protecting the Liberty of Pregnant Patients." NEJM 1987. 316(19): 1213.
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Berg RN: "Georgia Supreme Court Orders Caesarean Section--Mother Nature Reverses on Appeal," J. Med Assoc GA 1981; 70:451-3
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Jurow and Paul. "Cesarean Delivery for Fetal Distress Without Maternal Consent." Obstetrics and Gynecology 1984; (63)4: 596-598.
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Leiberman et al. "The Fetal Right to Live." Obstetrics and Gynecology 1979; 53(4): 515-517.
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Martin, Emily. The Woman in the Body: A Cultural Analysis of Reproduction. Beacon Press, Boston, 1992.
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Obade, Claire. "In Re A.C. reversed: Judicial Recognition of the rights of Pregnant Women." Journal of Clinical Ethics 1990; 1(3): 251.
Planned Parenthood of SE PA v Casey 505 US 833 (1992).
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Raleigh Fitkin-Paul Morgan Memorial Hospital vs Anderson 42 NJ 421, 201A 2d 537 (1964).
Rhoden, Nancy. "The Judge in the Delivery Room: The Emergence of Court Ordered Cesareans," California Law Review 1986; 74: 1951-2030.
Robertson. Children of Choice. Princeton UP, 1994.
Robertson. "Legal Issues in Fetal Therapy." Seminars in Perinatology 1985; 9; 136.
Robertson and Schulman. "Pregnancy and Prenatal Harm to Offspring: The Case of Mothers with PKU." Hastings Center Report 1987; 17(4): 23-33.
Roe vs Wade. 410 US 113 (1973).
Rothman, B.K. When a Pregnant Woman Endangers Her Fetus. Hastings Center Report 1986; 16(1): 25.
Silent Scream, The. Produced and Directed by Jack Duane Dabner. Anaheim, Cal.: Amer. Portrait Films.
Shriner, T.L. "Maternal Rights Versus Fetal Rights--A Clinical Dilemma." Obstetrics and Gynecology 1979; 53(4): 518-519.
Strong, C. "Ethical Conflicts Between Mother and Fetus in Obstetrics. Clinical Perinatology 14(2).
Sturgess, Robert. "In Re: A.C.: A court Ordered Caesarean Becomes Precedent for Nonconsensual Organ Harvesting." NOVA Law Review 1989; 13(2): 649-669.
Thornburgh vs American College of Obstetricians and Gynecologists, 106 S Ct 2101(1986).
--Ian
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Gene DeMambro
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