The Handmaids tale arrives in FL

Court-Ordered Care--A Complication of Pregnancy to Avoid

Julie D. Cantor, M.D., J.D.
N Engl J Med 2012; 366:2237-2240 June 14, 2012
 
 Samantha Burton was 25 weeks pregnant when her membranes ruptured. Burton's obstetrician admitted her to Tallahassee Memorial Hospital (TMH) and prescribed continuous inpatient bed rest. But with two young children and a job to consider, Burton found the prospect of a 3-month hospital stay overwhelming. She decided to go home. When she tried to leave, authorities barred her exit.

 Soon, the machinery of court-ordered care started rolling. TMH's outside counsel, deputized by the local state attorney to act on Florida's behalf, petitioned for judicial approval to force Burton to follow doctors' orders. Within hours, the court heard argument from the hospital, state attorney and testimony from the obstetrician, now considered the unborn child's attending physician.1 Burton testified by phone from the hospital, without counsel.

 The next day, the judge gave TMH, any attending health care provider, and members and employees of the original obstetrician's practice permission to administer any care they deemed necessary to preserve the fetus's life and health.1 He ordered Burton to comply and denied her request to change hospitals. Within days, doctors delivered a dead fetus by cesarean section. . . .

Moreover, the due-process considerations are profound. Because these cases are usually heard on an emergency basis, judicial decisions are made without full briefing on relevant law, medicine, and policy. Unlike alleged criminals, patients have no Sixth Amendment right to counsel, and they cannot instantaneously find expert witnesses to testify on their behalf.  And hospital lawyers acting as state attorneys have a clear conflict of interest: as even the Supreme Court of Florida has noted, it is inappropriate for a hospital to argue zealously against the wishes of its own patient, and it cannot act on behalf of the State to assert the state interests when a competent adult refuses care (Matter of Dubreuil).

Coerced care also devalues the inherent risks to maternal health and life. Cesarean sections and blood transfusions are not risk-free, and bed rest is neither benign nor evidence-based. Obstetricians aren't omniscient and may defer to culture over data. 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. And the notion that court-ordered care will insulate providers from litigation seems misguided -- courts should be unsympathetic to patients with refusal remorse, lest they eviscerate the concept of informed consent, and an informed refusal, unaccompanied by malpractice, should be a shield from civil and criminal liability. Of course, subjecting a patient to forced care, even court-ordered care, may lead to a lawsuit for violations of civil and constitutional rights.

Finally, there's the slippery slope. As a Florida Supreme Court justice explained, forced care that is designed to protect the health of the fetus creates its own universe of troubling questions. Should the State have the authority to prohibit a pregnant woman from smoking cigarettes or drinking alcohol, both legal activities with recognized health risks to the unborn? (In re Guardianship of J.D.S.). Should pregnant women be prosecuted for adverse outcomes when they reject medical care? Should they be jailed until delivery? Such cases have already arisen. . . .

In 1976, a man dying of aplastic anemia sued his cousin, asking a court to order the forcible extraction of his potentially matching and lifesaving bone marrow. The court refused and explained, 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 and raise the spectre of the swastika and the Inquisition, reminiscent of the horrors this portends (McFall v. Shimp).
Those horrors are no less salient here. Forced interventions undermine the liberty, privacy, and equality of pregnant women. But they are far more insidious. Because they betray foundational legal principles of our free society, they endanger the liberty of us all.