June 28, 2012 — Summary of "Court-Ordered Care -- A Complication of Pregnancy to Avoid," Cantor, New England Journal of Medicine, June 14, 2012.
In a commentary, Julie Cantor of the University of California-Los Angeles School of Law discusses cases in which hospitals have sought court orders to force pregnant women to abide by prescribed treatments and procedures against their wishes. She cites various examples from Florida, Georgia and elsewhere in which hospitals successfully petitioned courts to force women to remain on bed rest and undergo blood transfusion, caesarean sections or other procedures because it was deemed necessary to protect the fetus.
Prevalence of Court-Ordered Care
Cantor notes that the frequency of court-ordered care is unclear. She cites a scholar who found that courts in at least 25 states and the District of Columbia between 1973 and 1992 granted doctors permission "to overrule their pregnant patients' refusal to consent to medical treatment." She also references a 2003 survey that found courts granted orders for c- sections or blood transfusions in eight out of nine cases reported by directors of maternal-fetal medicine programs.
Meanwhile, a 2007 survey of obstetricians and health lawyers found that 51% said they were "highly likely to support the use of judicial authority" to force a pregnant woman to receive an unwanted c- section.
Arguments For, Against Court-Ordered Care
Advocates of forced care "argue that the state has strong interests in fetal well-being that must be balanced against the mother's rights, that pregnant women must defer to health care providers who conclude that fetal health or life is at risk, and that women have special obligations to fetuses they choose to carry to term," Cantor explains. Further, some physicians believe that involving the courts will protect them from litigation if a pregnant woman refuses care and the fetus is harmed, she asserts.
Cantor argues that just as "[c]itizens have no legal duty to use their bodies to save one another, ... 'a fetus cannot have rights in this respect superior to those of a person who has already been born,'" as a federal appeals court for the D.C. circuit found in a case involving a forced c-section.
Forced-care cases also raise troubling due-process implications, Cantor continues. Given the emergency nature of the situations, judicial decisions are made hastily, without adequate briefings on medical, legal and policy considerations. Moreover, patients are not guaranteed access to counsel or given time to assemble expert witnesses to support their cases.
Additionally, forced care fails to consider the inherent risks to the woman from pregnancy and procedures such as c-sections. "Forced care also ignores individuals' and families' values, reinforces inequality between the sexes, threatens to drive women from care, and condones a culture of coercion," Cantor states.
Cantor writes that higher courts have reviewed a handful of cases, with various outcomes. "The courts' opinions generally begin with the premise that 'every person of adult years and sound mind has the right to determine what shall be done with his body,'" but "the extent to which pregnant women retain that right has varied."
Some courts have attempted to set a "balancing standard," which Cantor calls "troubling." This "pits doctors against patients, ignores due process, defers to physicians' fallible predictions, and imposes heightened obligations on pregnant women -- including the sweeping and unique duty to submit their bodies to the state," she argues.
Likewise, the "extraordinary circumstances" standard used by some courts is inadequate, as it fails to define what would constitute an "extraordinary" case and "inherently involves balancing," Cantor writes.
In Illinois, courts have held that "the State may not override a pregnant woman's competent decision, including refusal of recommended invasive medical procedures, to potentially save the life of the viable fetus."
Cantor argues that courts, hospitals and physicians should use the Illinois approach, which "respect[s] informed refusals." Although physicians should discuss risks, benefits and alternatives, and document the patient's refusal, they should not seek court intervention, she writes. Additionally, physicians who engage in court intervention should disclose this fact to patients so they have a chance to seek care elsewhere.
"Forced interventions undermine the liberty, privacy, and equality of pregnant women," Cantor states, concluding, "Because they betray foundational legal principles of our free society, they endanger the liberty of us all."
Debra Ness, publisher & president, National Partnership
Andrea Friedman, associate editor & director of reproductive health programs, National Partnership
Melissa Safford, associate editor & policy advocate for reproductive health, National Partnership
Perry Sacks, assistant editor & health program associate, National Partnership
Cindy Romero, assistant editor & communications assistant, National Partnership
Justyn Ware, editor
Amanda Wolfe, editor-in-chief
Heather Drost, Hanna Jaquith, Marcelle Maginnis, Ashley Marchand and Michelle Stuckey, staff writers
Tucker Ball, director of new media, National Partnership