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
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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.
The prevalence of such orders is unclear. One scholar found that “between 1973 and 1992 courts in at least twenty-five states and the District of Columbia granted orders to doctors seeking to overrule their pregnant patients’ refusal to consent to medical treatment.”2 A 2003 survey of directors of fellowship programs in maternal–fetal medicine reported nine forced-care cases, and orders for cesarean section or blood transfusion were obtained in eight.3 A 2007 study of 229 obstetricians and 126 health lawyers showed that 51% “were highly likely to support the use of judicial authority” to force a patient to undergo an unwanted cesarean section.4 In 2004, a Pennsylvania hospital obtained a court order for doctors to do just that (see the Supplementary Appendix, available with the full text of this article at NEJM.org), but the patient had already left that hospital and had an uneventful vaginal delivery at another hospital.
Forced-care advocates 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. Physicians may believe that judicial intervention will protect them from litigation if a pregnant woman refuses care and the fetus is harmed.
But why should pregnancy diminish a competent adult woman’s right to refuse care? Citizens have no legal duty to use their bodies to save one another; even parents have no such legal duty to their children. It follows, then, that “a fetus cannot have rights in this respect superior to those of a person who has already been born” (In re A.C.).
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.
A handful of forced-care orders have been reviewed by higher courts (see table
Published Opinions Reviewing Order, or Request for Order, for Forced Medical Interventions during Pregnancy.). 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” (Schloendorff v. Society of N.Y. Hospital). But the extent to which pregnant women retain that right has varied: in Illinois, “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” (In re Brown); the U.S. Court of Appeals for the District of Columbia Circuit, a federal appellate court, has held that court-ordered care is rarely appropriate and that the pregnant patient’s wishes “must be followed in virtually all cases, unless there are truly extraordinary or compelling reasons to override them” (In re A.C.); in Florida, a state appellate court has determined that the state may override the patient’s right to refuse medical treatment when its interests in a viable fetus’s well-being are compelling and the intervention is narrowly tailored to meet its goal (Burton v. State).A balancing standard is troubling. Among other things, it 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. The “extraordinary” circumstances rule is no better. It, too, inherently involves balancing, and it offers physicians little clinical guidance. What is an exceptional case? Is it the same in all states? Should it be? Although the Committee on Ethics of the American College of Obstetricians and Gynecologists endorses the “extraordinary circumstances” approach, even it “cannot currently imagine” what that scenario could be.5
The Illinois approach — to respect informed refusals — should be the rule for courts, hospitals, and physicians. Physicians should discuss and revisit the risks, benefits, and alternatives of recommended care, and they should adequately document an informed refusal. But they should not involve courts. These cases begin at the bedside, and that is where they should end.
Physicians who seek judicial intervention should disclose that practice so patients can seek care elsewhere. For many, though, alternatives are illusory. In Tallahassee, there may be no safe harbor. In 1996, after laboring at home and becoming dehydrated, Laura Pemberton sought intravenous fluids at TMH, but physicians conditioned her medical care on agreement to a cesarean section. She declined and left. TMH then obtained a court order to retrieve her from her home (she was found laboring in her bedroom) and bring her to TMH by ambulance, where she was forced to undergo an apparently unnecessary cesarean section.
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.
Disclosure forms provided by the author are available with the full text of this article at NEJM.org.
SOURCE INFORMATION
From the UCLA School of Law, Los Angeles.
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