Aug 5th, 2009
Posted by Dahlia Ward, Reproductive Freedom Project at 2:17pm	Pregnancy

Who Gets to Make Medical Decisions for Pregnant Women?

(Cross-posted to Daily Kos and Feministing.)

Imagine this — you're the busy mother of two small kids with another one on the way. This pregnancy has been fraught with complications. During a medical exam, your doctor orders bed rest for the remainder of your pregnancy. You explain that you can't possibly stay in bed for four months with two small children (!). The doctor insists. You say you want to get a second opinion. The doctor refuses and goes to court and gets a court order mandating your confinement in the hospital for the remainder of your pregnancy.

Sound crazy? Well something along these lines happened to Samantha Burton, a mother of two in Florida who was 25 weeks pregnant when she was hospitalized against her will due to pregnancy complications. When she requested a transfer to another hospital so she could get a second opinion, the state refused because it was not in the fetus' "best interests at the time." After three days in state-mandated confinement, Ms. Burton lost the baby. The ACLU Reproductive Freedom Project and the ACLU of Florida filed a friend-of-the-court brief in support of Burton earlier this week.

Being pregnant does not mean that you lose the basic right to make decisions about your own health care. In a free society, each of us has the liberty to conduct our lives according to what we believe is best for ourselves and our families. Though we may disagree with the health decisions of some, we do not force people into medical care, or in the case of Burton, into confinement in a hospital.

Don't get me wrong — of course I want pregnant women to follow their doctor's advice. But I do not think that pregnant women should be confined against their will if they are unwilling or unable to do so. If we allow the government to confine a pregnant woman for not following orders to remain in bed, what's next? Will we forcibly hospitalize pregnant women for having a glass of wine with dinner? Or eating too much fast food? What if they don't take their prenatal vitamins? Or miss their doctor's appointments? What if a pregnant woman refuses a cesarean section? While we each may have strong opinions about such behaviors, our government cannot interfere in a woman's personal private medical decisions. Allowing the government to make medical decisions for pregnant women means that literally every decision and every activity a pregnant woman engages in could be regulated by the state. And certainly the possibility of state-mandated hospitalization for those who have engaged in "unhealthy behaviors" would deter some women from seeking any prenatal care for fear of being punished. In that situation, everybody loses.

We would all be better off engaging in healthy behaviors. In our society, we motivate people to do so through education and information, not threats of confinement or punishment. Unfortunately, Samantha Burton's case is not unique. We hear of a number of cases in which women are discriminated against, even thrown in jail, simply because they are pregnant. Every pregnant woman should be able to access the health care she needs to have a healthy pregnancy and a healthy baby without fearing forced hospitalization or confinement.

Permalink |	Pregnancy

1. Maggie Says:
   Aug 5th, 2009 at 3:50pm

   No one should be forced into any kind of health care. However, when the new health care reform goes into effect; you will be seeing more and more of this.

2. ymous Says:
   Aug 5th, 2009 at 5:58pm

   "...Ms. Burton lost the baby." Don't you mean "lost the clump of cells that is absolutely not a human"?

3. No Maggie Says:
   Aug 5th, 2009 at 8:56pm

   These kind of stories have nothing to do with health care reform. Don't make inflammatory statements based on absolutely no evidence.

4. Sandy G Says:
   Aug 5th, 2009 at 10:36pm

   I found the following by Louise Marie Roth on the Huffington Post on July 21 .........

   Yet another ruling is providing legal support for the false belief that obstetricians are infallible and stripping pregnant women of basic civil rights that are then accorded to other individuals. In the case, New Jersey Division of Youth and Family Services v. V.M. and B.G., the New Jersey appellate court found that V.M. and B.G. had abused and neglected their child, based on the fact that the mother, V.M., refused to consent to a cesarean section and behaved erratically while in labor. The mother gave birth vaginally without incident, and the baby was "in good medical condition." Then she was never returned to her parents, and the judge in the case approved a plan to terminate their parental rights and give custody of the child to foster parents. What, beyond the obvious, is wrong with this picture?

   First, from a legal perspective, individuals have a right to informed consent and bodily integrity. In obstetrics, informed consent is a blurry concept since many hospitals perform obstetric procedures on laboring women without informing them of the evidence concerning those procedures or their risks. Perhaps this legal case illustrates how paternalistic hospitals can be with respect to pregnant women -- assuming that the hospital staff know best and that informed consent is unnecessary. Never mind that hospitals tend to be run with organizational efficiency, rather than patient interests, in mind. In this specific case, one obstetrician who tried to convince the mother to consent to a c-section concluded that she was not psychotic and had the capacity for informed consent with regard to the c-section. It is clear within the law there is no informed consent without informed refusal, so this obstetrician's conclusion should have made V.M.'s refusal to consent to the c-section her decision alone. If this mother is not legally permitted to refuse major abdominal surgery, then she is clearly stripped of her civil rights to informed consent.

   In fact, individuals are not legally required to consent to invasive procedures even to save other individuals, including fetuses that lack full legal status. But in this case the district and appellate courts subverted a pregnant woman's informed medical decision-making in the name of fetal rights, arguing that her refusal was a form of abuse and neglect of the child that had not yet been born. This is another dangerous precedent, along with other court-ordered cesarean cases, that will allow all pregnant women to lose their rights to bodily integrity and informed consent. It may be understandable, if not excusable, that the courts don't understand medicine or recognize that medical judgment is fallible, but it is hard to understand how they could so fundamentally misinterpret the law, in which performing surgery on an individual without that person's permission can constitute criminal "battery" under common law.

   The court's opinion also suggests that lawmakers have no concept of what it is like to be in labor. Women in labor tend to find themselves on a different mental plane, where they have to focus inward and work with their bodies to give birth. As midwives know, some women become belligerent. Some seek privacy and seclusion. Most women in labor are likely to find the routine and usually unnecessary procedures of hospitals to be invasive and unwelcome. Yet the courts that decided this case didn't seem to be aware that women are unlikely to behave the same way when they are in labor as when they aren't. The decision cites hospital records that describe the mother, V.M., as "combative," "uncooperative," "erratic," "noncompliant," "irrational" and "inappropriate." Also, her husband indicated that the way she was acting was not her "normal manner and that she is not as 'tranquil.'" Why would anyone expect a woman in labor to be compliant, tranquil, or rational? What kinds of expectations does our society have for women undergoing a powerful physiological process, often with an absurd amount of poking, prodding and general interference? This mother was uncooperative with hospital staff, but clearly her uncooperativeness had nothing to do with the well-being of her baby. There is no reason to believe that she did not have the well-being her baby as her top priority, even though she was not a model patient. There is also no reason to believe that everything the hospital staff wanted to do was essential or even beneficial for the well-being of either mother or baby. In fact, typical obstetric care engages in many procedures that are unnecessary and often harmful, more out of habit and for the convenience of hospital staff than in the best interest of patients.

   While the court opinion also focuses on the parents' psychiatric diagnoses (which are fallible medical judgments) and their history of care in determining their fitness as parents and abrogating their parental rights, their psychiatric state would never have been questioned if the mother had not refused invasive abdominal surgery -- which was entirely within her rights. The tragic consequence for this family was separation from their infant daughter from the moment of her otherwise uneventful vaginal birth. That kind of injustice can't have been good for the psyche.

   Follow Louise Marie Roth on Twitter: www.twitter.com/louiseroth

5. Linda Says:
   Aug 6th, 2009 at 8:39am

   What do we think will happen if the government takes over health care?

6. roula Says:
   Aug 6th, 2009 at 9:21am

   Maggie, that's a completely baseless claim. (Plus it contradicts every healthcare opponent's favorite talking point, which is that people will supposedly be forced OUT of having health care.) Can you point me to the part in the proposed legislation where you're seeing this?

7. Maggie Says:
   Aug 6th, 2009 at 4:17pm

   Page 30 Section 123 - There will be a govt committee that decides what treatments/benefits you get.
   Page 253 Line 10-18 Govt. sets value of doctor's time, profession, judgement.
   Page 20 Sec 1151: The govt will penalize hospitals for whatever govt deems preventalbe re-admissions.
   Pge 352 Sec 1177: Govt will restrict enrollment of Special needs people.

   Perhaps to #3 & #6 you might want to read the bill. And if my statements are baseless and inflammatory I would like to know: Do you have a contingency plan in case this one is no good?

8. roald Says:
   Aug 10th, 2009 at 12:40pm

   Maggie - Please read the sections yourself rather than using someone else's interpretation. I have to go back to work in a few minutes, so I won't be able to go through the entire list right now. The first item you noted is section 123, which talks about a commission to recommend what should be covered by the policies. It is not aimed at what services will be provided to individuals and the only differences it has with insurance companies deciding what will be covered are care ranks higher than profit and the scope of people making the decisions. To quote from the bill...

   (5) PARTICIPATION.—The membership of the
   Health Benefits Advisory Committee shall at least reflect providers, consumer representatives, employers, labor, health insurance issuers, experts in health care financing and delivery, experts in racial and ethnic disparities, experts in care for those with disabilities, representatives of relevant governmental agencies and at least one practicing physician or
   other health professional and an expert on children’s health and shall represent a balance among various sectors of the health care system so that no single sector unduly influences the recommendations of such Committee.
   (b) DUTIES.—
   (1) RECOMMENDATIONS ON BENEFIT STANDARDS.—The Health Benefits Advisory Committee
   shall recommend to the Secretary of Health and Human Services (in this subtitle referred to as the
   ‘‘Secretary’’) benefit standards (as defined in paragraph (4)), and periodic updates to such standards.
   In developing such recommendations, the Committee shall take into account innovation in health care and consider how such standards could reduce health disparities.

9. Paen Says:
   Aug 10th, 2009 at 5:08pm

   In Canada absurd claims like Maggies were also made about socialised medicine
   and it took 16 years for one governement is one province to finaly push it through.When it happened however
   the demand for the reform became so strong that it soon became universal accross Canada and is still strongly supported by people across the political spectrum including the hard right.Furthermore Tommy Douglas who started it all is considered by many Canadians as the greatest Canadian ever.
   (Before the right winger start raving about Communists I would like to point out that Mr.was an ordained Baptist minister)

10. roald Says:
    Aug 12th, 2009 at 12:39pm

    Maggie, I have a few minutes free, so I looked at the other sections you mentioned.

    p. 253 talks about validating the codes used for reimbursement to ensure they are accurate. Insurance companies today take an easier route, establishing "usual and customary" fees for services and paying any charges above that.

    S1151 sounds like a great idea to me by working to reduce unnecessary re-admissions. What's wrong with that?

    S1177 is titled "EXTENSION OF AUTHORITY OF SPECIAL NEEDS PLANS TO RESTRICT ENROLLMENT". It has nothing to do with people with special needs.

11. Maggie Says:
    Aug 12th, 2009 at 2:18pm

    Well this is a terrible thing to say; but we will just have to wait and see.

    Why would I care if Mr. Douglas is a Baptist minister?

12. DW Says:
    Aug 12th, 2009 at 5:51pm

    To roald

    I have read the entire healthcare bill and specifically pages 224 to 234 which deals with your "committee". What you are implying is that they would always act in your best interest while it doesn't actually say anything about your best interest. What they can approve, they can also deny. So the healthcare of all senior citizens would be decided by comittee. Who's to say that the committee simply decides that you've lived a good life are are no longer a benefit to society. And don't delude yourself into thinking that it couldn't be done. This very organization the ACLU has fought and is still fighting for more abortions and euthanasia. Read the book "The ACLU vs America" to understand the roots of this organization. The cozy relationship of government and the ACLU makes all such "committee" decisions suspect.

13. Maggie Says:
    Aug 16th, 2009 at 4:32pm

    I just heard on the news that the UK is trying to do away with their health care system and go to a different system. Also Hawaii recently did away with their health system because it got too expensive. Obviously there is a problem just like with regular insurance companies.

14. roald Says:
    Aug 17th, 2009 at 2:08pm

    DW, very interesting assertion. Can you provide a link to the version of the bill you are reading. I looked at p224-234 of the copies of the House and Senate bills I have and cannot see the references you mention.

    The health care of our senior citizens is already in control of committees - Congress for medicare and insurance companies for private care.

    It sounds like you are willing to deny non-emergency medical care to tens of millions of your fellow citizens in order to prevent any possibility that a committee might be formed some day to decide whether an older person will be denied care. You have your priorities wrong.

    How can you say the ACLU and the government have a cozy relationship when the ACLU is constantly suing them? BTW, is the government of which you speak the conservative or the liberal one, not forgetting which has been in power for most of the last quarter century.

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