Preganant woman's rights get short shrift

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By ROBYN E. BLUMNER

© St. Petersburg Times,
published August 12, 2001

Shorstein was proudly describing the length of time it took him to get an order from a local judge to force a Jacksonville woman who was in labor to get a potentially life-saving Caesarean section against her will.

Twenty minutes -- most speeding ticket cases take longer.

Of course, time was of the essence. The woman had been in labor all day on July 20 at Memorial Hospital Jacksonville, when serious complications arose. According to Neil Sager, her obstetrician, she needed an immediate Caesarean section or the child might die. The mother's life was also in danger without the surgery. But she was objecting on religious grounds -- a decision supported by her husband. So the hospital's attorneys contacted Shorstein.

"We didn't have much time for legal research," Shorstein said. "I don't want to sound as though I'm not following the law, but my opinion was that if the child was going to die, I would bring the petition (to force the Caesarean section) and if I was wrong, I was wrong, but it would save the child's life." Twenty minutes later, following a telephone hearing in which the doctor testified by speakerphone to a local circuit court judge, the surgery was authorized to commence.

Twenty minutes, that's how much time it took the court to hear the evidence and mull over the complex legal issues. That's how much consideration was given to the woman's right to make her own medical decisions, her right to personal autonomy, her right of religious freedom and her right of due process. (She wasn't represented nor was she or the child's father on the phone call.)

For many people, this case's happy ending justifies the bad stuff in the middle. Rather than two corpses, both mother and baby survived and have been released from the hospital. While it's hard to argue with this kind of success, I will anyway. Because this case is scary.

At its core, the principle being articulated here is that the state may force someone into unwanted surgery in order to save the life of another.

Yes, this is mother and child and not two strangers. Still, the principle is the same. Imagine if a mother had a 14-year-old son with kidney disease, and she is the only compatible kidney donor. Could the state force her to give up a kidney in order to save her child's life? Of course, most mothers would gladly provide a kidney to their child, but if one chooses not to, should the state be allowed to open her up and take it?

Sound far-fetched? Well, in 1978, a Pennsylvania court was asked to order one cousin to give up bone marrow to another. Robert McFall had a terminal bone marrow disease and needed a transplant. His cousin was the only compatible donor but refused to submit to the needed surgery, so McFall sued. While the Pennsylvania court called the healthy cousin's decision "morally indefensible," it would not order him into surgery to save McFall's life.

"For our law to compel defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual," wrote the court.

Some have argued that the Caesarean section case is different from the kidney scenario because the fetus is wholly dependent on its mother for life, a life its mother chose to bear. This reasoning suggests that pregnant women lose the right to make medical decisions for themselves if those decisions run counter to the interests of the fetus -- a terrifying prospect.

Thankfully, our system recognizes that pregnant women are autonomous and not subservient to their wombs.

Pregnant women have the right to make judgments regarding prenatal care, their diet and exercise regimes and even their intake of alcohol and tobacco, regardless of the impact on the life and health of their viable fetus. And despite attempts by at least 30 states to prosecute women who took illicit drugs during their pregnancy, these prosecutions almost never withstand legal challenge.

In a free society, keeping the state from second-guessing the personal decisions of pregnant women takes priority. That may lead to harsh results in particular circumstances, but to do otherwise is to unleash the pregnancy police and allow the conversion of a woman's body into a state-run incubator.

That's what happened to Angela Carder, who in 1987 was in her third trimester and diagnosed with terminal cancer at George Washington University Medical Center in Washington, D.C. She was denied a cancer treatment she requested and was forced by a court order to have a Caesarean section, all for the benefit of her viable fetus. Both she and the baby died within days of the operation and it wasn't until three years later that a federal appellate court reversed the order.

A little late, wouldn't you say?

Without a bright-line rule giving pregnant women in all circumstances the right to direct their medical care, cases like Carder's will recur. Twenty minutes is not enough time to parse through the legal and ethical implications of overriding a woman's judgment. Twenty minutes is only enough time to get it wrong.

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