The saying goes: Hard cases make bad law. Cases involving birthing women are no exception. A recent commentary in the New England Journal of Medicine examined the phenomenon of court-ordered medical treatment for pregnant women, and the legal reasoning underlying the cases in which this violation of women’s rights has been allowed. Fortunately, a recent decision from Massachusetts upheld the fundamental principle that women enjoy the same Constitutional rights as everyone else. [i]
Two major factors encourage efforts to subject pregnant women to compulsory medical treatment and deny pregnant women their fundamental rights including the right to informed medical decision-making: first, the argument that fertilized eggs, embryos, and fetuses should be treated as completely legally separate from the pregnant women who carry, nurture, and sustain them; and second, the exigencies and emotional tension of cases involving pregnant women who are at term. The belief that lives are at stake, coupled with sham legal processes (including bedside interrogations, emergency telephone “hearings” in which every party but the pregnant woman has a lawyer, and no opportunity to present expert testimony on the woman’s behalf or even to challenge the claims against her), can lead even well-intentioned judges to authorize terrifying acts against pregnant women.
In refusing to order a woman identified as “Mother Doe” to undergo cesarean surgery without consent, the Appellate Court of Illinois considered the potential for state-authorized violence against pregnant women in such situations. In this 1993 case, doctors predicted that her fetus has “close to zero” chance of surviving vaginal birth. The court refused to grant outsiders the power to force Mother Doe to submit to surgery, stating:
“‘Enforcement could be accomplished only through physical force or its equivalent. [The pregnant woman] would have to be fastened with restraints to the operating table, or perhaps rendered unconscious by forcibly injecting her with an anesthetic, and then subjected to unwanted major surgery. Such actions would surely give one pause in a civilized society, especially when [the pregnant woman] had done no wrong.’ … We simply cannot envision issuing an order that, if enforced at all, could be enforced only in this fashion.”[ii]
Roe has collapsed and Texas is in chaos.
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It is a relief, then, when courts manage to look past the emotionally-charged circumstances of birth and uphold women’s status as full persons under our Constitution. Such a decision was announced on Friday by the Supreme Judicial Court of Massachusetts.
On January 2, 2007, Allissa Pugh gave birth alone on her toilet to a baby who arrived in breech (foot-first) position. Even though she had not sought prenatal care, she knew from prior birth experiences that breech birth could be dangerous. When the baby emerged blue and unresponsive, she tried desperately to resuscitate him. Once it became clear that the baby was dead, she disposed of the body in the trash, where it was found by sanitation workers.
Allissa Pugh was charged with involuntary manslaughter based on the argument that she had engaged in a “wanton and reckless act” by failing to summon medical assistance during the birthing process. She was convicted and sentenced to two and a half years in prison. The ruling from the trial court recognized the pregnant woman and fetus are “biologically joined,” but stated nevertheless that pregnant women could be subject to “potential criminal liability for their conduct with respect to their unborn children.” The trial court asserted: “Recognition that a legal duty exists on the part of a pregnant woman to refrain from wanton or reckless acts committed against her own viable fetus does not impermissibly intrude into ‘protected spheres of life.’”[iii]
On appeal, the Supreme Judicial Court had the benefit of extensive briefing, and even publicly sought amicus curiae (friend of the court) briefs. (This is in contrast to the few cases in which courts have upheld forced interventions on pregnant women.) Briefs were filed by the ACLU, the Committee for Public Counsel Services, the Massachusetts Association of Criminal Defense Lawyers, and the Women’s Bar Association of Massachusetts. Citing “grave constitutional concerns,” the court overturned the conviction.
The court rightly recognized that criminalizing a failure to summon medical treatment during childbirth would “result in the effective criminalization of medically unassisted childbirth, such as unattended births [which occur as a matter of circumstance or choice] or home births with a lay midwife.” Creating a duty to refrain from negligence during pregnancy, the court reasoned, would create virtually limitless opportunities for the state to police pregnant women, with serious questions as to when the duty attaches: e.g., at what point in pregnancy? How complicated would the childbirth have to be? What risks would a woman have to be aware of?
The court also addressed the due process nightmare that would ensue from such a duty:
“Drawing the line between what is lawful and what is criminal conduct on the part of pregnant women and women in labor would be left to individual law enforcement officials and judges. Given the socially freighted nature of questions surrounding a pregnant woman’s relationship to her fetus, it is not difficult to foresee a patchwork of unpredictable and conflicting prosecutorial and judicial actions resulting from the newly created duty to summon medical assistance at issue here.”
The work of National Advocates for Pregnant Women’s documents exactly this kind of arbitrary and frightening delegation of authority to local police and prosecutors in cases emerging around the country. Even faced with a set of difficult facts and a bad birth outcome, Massachusetts held that women retain their carefully-guarded right to control of their bodies and lives, “however unwise [her] sense of values may be in the eyes of the medical profession,” on equal footing with all other people under our Constitution. From this tragic case emerged a rule affirming women’s fundamental personhood:
“All births, regardless of venue, carry inherent risks; in the ordinary course, competent women who are pregnant may weigh these risks themselves and make decisions about the course of their own pregnancies and childbirths.”