Commentary
September 9, 2015

A unique category of persons

By Lisa Chalidze

Pregnant women: hardly the stereotypical political image. Yet birth stirs up intense political, moral and even legal controversy. Why?

Maybe it’s really a question of power?

In our society, there is a trade-off between individual liberty, on the one hand, and compliance with social rules, on the other hand. To protect itself society persuades, or coerces, individuals to follow certain rules for the common good.

The ultimate social control, in a democracy, is the law. The law’s coercive power is great. It includes imprisonment and, in some states, death. This is one way in which we give courts the authority to make “the final mortal decision.”

There is another arena in which courts may literally hold the power over life or death: birth.

One judge has called pregnant women “a unique category of persons.” Indeed.

Two months ago in California, 24-year-old Ashley Bridges died of cancer. When diagnosed, she was 11 weeks pregnant. Ms. Bridges refused the chemotherapy that might have saved her life, in order to bear a healthy child: a daughter, Paisley, who is now one and a half years old. A tragic fate, without doubt; yet one Ms. Bridges chose for herself.

The story was quite different for Angela Carder, another young woman diagnosed with cancer while pregnant–or, as the District of Columbia court put it, “in fetal state.” Ms. Carder, too, indicated that she would choose to relinquish her life so that the fetus could survive, should such a choice present itself. However, she objected to undergoing a Caesarean section.

As one observer has noted, “the surgical removal of a baby from the womb of its mother is an act that exudes deep philosophical and cultural conflict.”

Too weak to speak aloud, Ms. Carder mouthed the words, “I don’t want it done.” Her treating physician refused to perform the surgery on her without her consent.

The hospital then went to court and got an order allowing its staff to perform surgery on Ms. Carder against her will. Neither Ms. Carder nor her baby survived the C-section. But wouldn’t that have been the outcome no matter what, given the cancer? Perhaps.

Unlike with Ms. Bridges, though, Ms. Carder’s control over the decision of what was to be done to her body was taken away. It was placed in the hands of others, by court order.

In a rare posthumous review, the appeals court reversed the order allowing the surgery. The appeals court expressly recognized the issue as one of control: “We must determine who has the right to decide.”

The court noted that every person has the right, under the common law and the Constitution, to accept or refuse medical treatment: “It matters not what the quality of a patient’s life may be; the right of bodily integrity is not extinguished simply because someone is ill, or even at death’s door.”

And what of being in “the fetal state”? Does that extinguish “the right of bodily integrity”?

In Illinois at least, the answer is no. There, a pregnant woman rejected a C-section on religious grounds, despite her doctor’s insistence that it was necessary for delivery of a healthy baby. The State sought an order requiring forced surgery.

The Illinois court, too, identified control over decision-making as key. “A woman’s right to refuse invasive medical treatment, derived from her rights to privacy, bodily integrity, and religious liberty, is not diminished during pregnancy.”

The Illinois court refused to order surgery on the pregnant woman against her will. Shortly thereafter, she gave birth in the traditional way to a healthy son.

But wait. Let’s look at the practical side.

How does one even perform surgery on a person who, like Ms. Carder, says, “I don’t want it done”? The D.C. appeals court was troubled by this question.

If it were to order forced surgery, the court pondered, the order could be enforced “only through physical force or its equivalent. [Ms. Carder] 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.”

Another court analyzed whether a baby should be able to sue its mother for conduct during pregnancy that allegedly resulted in a birth defect. The court acknowledged “the firmly held belief of some that a woman should subordinate her right to control her life when she decides to become pregnant or does become pregnant: anything which might possibly harm the developing fetus should be prohibited and all things which might positively affect the developing fetus should be mandated under penalty of law, be it criminal or civil.”

In a controversial move, Tennessee moved strongly in this direction last year, when it became the first state to arrest women immediately after birth if the baby was born with opiates or certain other drugs in its system. The charge: assault.

In a democracy, the trick is where to draw the line in order to maximize liberty, while protecting us all from conduct that we have somehow decided crosses the line of acceptable behavior.

But perhaps there is a bigger question: Who decides?

Lisa Chalidze is a lawyer and chairwoman of the Criminal Justice Division at College of St. Joseph in Rutland. She lives in Benson.

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