slippery slope

Here's a fascinating court case coming up soon.  I'm taking the opportunity to challenge the regular contributors to join in a thoughtful discussion on this one rather than reverting to name calling and canned rhetoric.  How much control should a physician or the state have?  How much control over her life should the woman have?  And who gets to decide?  The author poses other salient questions that you may want to address.  What are the major risks of imposing this type of law? 

Lu

January 12, 2010, 12:50 pm

Is Refusing Bed Rest a Crime?

By LISA BELKIN

Arguments are under way today in the First District Court of Appeals in Tallahassee, Fla., in the case of Samantha Burton, who was confined to her bed by a judge earlier this year because she was at risk for a miscarriage.

Burton was in her 25th week of pregnancy in March 2009 when she started showing signs of miscarrying. Her doctor advised her to go on bed rest, possibly for as long as 15 weeks, but she told him that she had two toddlers to care for and a job to keep. She planned on getting a second opinion, but the doctor alerted the state, which then asked the Circuit Court of Leon County to step in.

She was ordered to stay in bed at Tallahassee Memorial Hospital and to undergo “any and all medical treatments” her doctor, acting in the interests of the fetus, decided were necessary. Burton asked to switch hospitals and the request was denied by the court, which said “such a change is not in the child’s best interest at this time.” After three days of hospitalization, she had to undergo an emergency C-section and the fetus was found dead.

Burton’s pro bono attorney, David H. Abrams, with a lot of help from the American Civil Liberties Union took the case to a higher court, charging that a dangerous precedent had been set. In a brief filed in the case, A.C.L.U. lawyers argue that the original decision unlawfully expanded the court’s right “to order medical treatment for a child over a parent’s” objections and applied it to an unborn fetus. “To ignore this fundamental constitutional distinction between the state interest in protecting fetal life and its interest in the protecting the lives and health of people is to risk virtually unfettered intrusion into the lives of pregnant women.”

The lower court based its decision on the fact that medical intervention is justified in “extraordinary” circumstances. The A.C.L.U. responded that the circumstances Burton found herself in were very ordinary. “It is hard to imagine anything more commonplace than the inability of a mother of two to remain on continuous bed rest,” the brief says, “or the well-documented difficulty in quitting smoking,” which Burton was also ordered to do.

Where then, to draw the line? If a court can confine a pregnant woman to a hospital because she refuses (or is unable) to stay in bed and quit smoking, what about the women who doesn’t eat healthfully? Or who drives above the speed limit? Dahlia Ward, state strategist for the A.C.L.U.’s Reproductive Freedom Project, wrote the following in the Daily Kos a few months ago, when the case was first reported:

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.

Comments

[Kyra]

In speaking to the issue of how much control a doctor/physician should have, I think that most who are anti-abortion such as myself would hope we can reach a place where the medical community views both the fetus and the mother as human lives and provides medical care to both equally. So in the above examples, a doctor would have to think about what is best for BOTH patients. So in the above instance, the doctor would have the right to order bedrest only if there were an immediate threat to the child's health/life by not going on bed rest, and if doing so would pose no threat to the mother's health/life.

Where I think things get screwy is that anti-abortion proponents seem to forget that by law, apparently, a baby is not considered a human being as long as he/she is in his/her mother's uterus. So by law doctors are not required or even legally allowed to act in the manner I described above, nor, it would seem, in the manner outlined in the case. Legally, the health of the mother is always supposed to be placed before the health of the child as long as the child is in the mother's uterus. Correct?

I also think there are too many "baby zealots" (if I may use that term) on the pro-life side of many arguments. What I mean by that is they want to protect the life of the baby at all costs regardless of the health or even the life of the mother. They seem to be so concerned with the baby that they forget the mother is also a human being whose life and mental/emotional/physical health need to be looked after Consider this hypothetical... if doctors treated both the mother and baby as patients and were allowed to force their patients to commit to their "recommendations" then what happens if, for instance, a Catholic couple finds out that carrying the fetus to term could possibly be fatal to the mother, but they decide they want the child to be born even if the mother dies as a result. Couldn't the doctor then essentially order an abortion regardless of the parents' wishes?

[Sarah]

Or will the next step be to force rape victims to carry the progeny of their rapists? Jail them for nine months after they've been raped in order to force them to carry to term a violently forced pregnancy?

And then what -- just start rounding women up, raping them, and locking them up 'til they deliver the babies, because the ProLife Taliban, led by Sarah Palin, believes their god thinks this is best for the state?

Nothing would surprise me at this point.

[Julie]

This wouldn't even be an issue if men could get pregnant. But, since it's women, some people believe they need to "save" her from her decisions.

[OperationCounterstrike]

If the court is gonna order bed-rest, then the court must PAY the patient for her lost work-time and other expenses.

[Ange]

This precedent leads to nasty future abortion scenarios... and also some crazy things to come for pregnant women generally.

And what of the two live kids the mother already had? And her job? And costs of staying in hospital? Did the state ensure those were paid? The kids looked after? The job still something she can go back to? I'll bet not.

[Emma Someone]

Since when did the not-yet-born become a ward of the state? It is scary that well before they have a chance on the outside, their lives are being put above an adults.

[Raissa]

It seems this court would like to yank out the egg as soon as it's been fertilized to save it from it's mother. When will they come in with opinions on what men should do with their sperm? If it's all in the interest of potential future children? Not only scary, but sexist and misogynistic.

[Dianne]

The evidence for bedrest being effective in preventing miscarriage is actually pretty minimal. It's used, but whether it really works is highly questionable. Nor is it harmless. Many women who miscarry frequently have hypercoaguable conditions and are especially vulnerable to thrombosis-which can kill- if they are placed on bedrest. So the court forced this woman to undergo a treatment of unproven value and real risk. Whatever your opinion on abortion, is that a precedent anyone wants to exist?

[placenta sandwich]

THANK YOU for bringing attention to this! It's certainly a dangerous precedent, not just legally sketchy but outright scary too. The hypotheticals that Ward raises are not really far-fetched at all. Women have been forced by courts to have C-sections, women in jail have been shackled to their hospital beds during labor, women have been sentenced to prison for being addicted to drugs when they fell pregnant -- and for failing to get clean during pregnancy, even though the number of facilities that accept pregnant women is very small (because of fears of liability for miscarriage following detox, apparently, which if true really makes the whole thing a terrible Catch-22)! It seems like our reproductive rights are shrinking from all sides at all times.