This article is Part 2 of an edited interview with Michele Goodwin, a professor of law at the University of Minnesota’s Medical School and School of Public Health, about the rise in “fetal protection” laws that have criminalized certain conduct by pregnant women that is deemed to threaten the health of a fetus, including refusal to undergo a cesarean section. Goodwin recently wrote a commentary on this topic for the online news syndicate Alternet. You can read Part 1 of the MinnPost interview here.
MinnPost: I wanted to discuss some of the individual cases you mentioned in your commentary. Can you describe what happened to Melissa Rowland?
Michele Goodwin: Melissa Rowland is a poor white woman [living in Utah]. She was pregnant with twins and sought medical consultation. She thought that she might be in labor. That’s not unusual. Many women when they’re pregnant and near the end of their pregnancy think that they’re in labor, and it turns out that they’re not in labor at all. She consulted with a physician, and the physician recommended that she have an immediate C-section. She did not want to have a C-section. When she delivered [vaginally], one of the twins was stillborn. Murder charges were brought against her for the death of her fetus. This would be shocking for all of us who have the potential to become pregnant that somehow choosing vaginal delivery could result in that type of a criminal prosecution. She ultimately took a plea [bargain] after spending time in jail and being shackled in front of the court, clearly shaken and deeply traumatized by the experience that she had.
MP: What about Samantha Burton?
MG: Like many women in this country today, she was a working mother [in Florida], single, with two kids. She went to her prenatal visit. Her doctor recommended bed rest. She explained that she was a working mom, and that there was nobody else to take care of her kids and pay the bills and do all of that. The doctor quickly spoke to general counsel, who got a court order to keep her in the hospital.
MP: The doctor took that step rather than calling social services to see if she could receive some help?
MG: Exactly. He contacted legal counsel in the hospital, who contacted the prosecutors, who then contacted a judge. And the judge issued an order stating that the life of the fetus had to be protected above the rights of the mother. The judge authorized that the hospital could do whatever it needed by any means necessary to protect the health of the fetus — including a forced C-section against [Samantha Burton’s] will — and that she was to be confined at the hospital if that was what the doctors at the hospital thought was necessary.
In fact, she was kept at the hospital alone in a dark gray room, and the fetus was removed from her body through a forced C-section, and it died. And then she was sent home. At no time was an attorney appointed to represent her interest at all. This is what is so incredibly disturbing in these cases. The [U.S.] Supreme Court has said that the indigent are entitled to representation. Certainly, when someone is being held against their will in a case such as this, when the state is authorizing individuals to physically harm — to cut open — a woman’s body, it is startling in all that it represents.
Later, upon hearing about this [case], the [American Civil Liberties Union] represented her. And in a later hearing, the appellate court noted that, yes, this had been a violation of her rights.
MP: And the case of Angela Carter, the pregnant woman with cancer?
MG: Miss Carter had suffered through cancer during childhood. It went into remission, she married, she became pregnant, and during the time of her pregnancy the cancer resurfaced. She told her doctors [in Washington, D.C.] that she wanted chemotherapy [to prolong her life — her cancer was terminal]. It was a difficult decision for her because she had looked forward to this pregnancy. Her doctors, however, refused the chemotherapy, desiring to protect the fetus’ health. Again, similar to the Burton case, [the doctors] obtained a court order that would allow them to remove the fetus by whatever means necessary and to protect the fetus’ health. In doing so they decided on fetal health over attempting to save the life of the mother. The fetus was removed from her, and it died within two hours. Angela Carter died two days later.
MP: You say in your commentary that some pregnant women are fleeing to other states, or even to other countries, out of fear that similar actions could be taken against them. Is there any way of tracking how often that’s occurring?
MG: The difficult part about tracking this is that these are women who are not trying to bring attention to themselves for fear that they will be prosecuted. But there are instances that are making the news, and there are women who are telling their stories — after they have given birth. Then there are cases like that of Lisa Epstein, who lives in Florida and who was savvy enough to call her lawyer, who then called National Advocates for Pregnant Women. That was how the media got hold of the e-mail that her doctor sent to her that said he would call the police if she didn’t show up immediately to have her C-section.
Many of these women happen to be poor or at the lower end of the socioeconomic spectrum. These are women who do not have legal and social clout in the way that more sophisticated, highly educated, wealthier women have. The concerns that I would raise is that these women are the canaries in the coal mine, and, in fact, the real canaries were the women in the 1980s who were being unjustly prosecuted for their stillbirths and miscarriages under the auspices that they had engaged in crack use during pregnancy. As much as all of us are passionate about health, and as much as we would want children to have the healthiest environment in development, we have to be mindful of civil liberties and civil rights — and also mindful of medicine.
It turns out, prosecutors — and doctors — got it wrong. It was expedient back then [in the late 1980s and early 1990s] to get on the news and talk about “crack babies.” Now, 20 to 30 years later, the Journal of the American Medical Association, the New England Journal of Medicine and all of the top medical journals say that they will not publish any articles that refer to any such thing as a “crack baby” because it does not exist. It was a myth. [Research has shown that the long-term physical and cognitive problems observed in many so-called crack babies are the result of poverty and other socioeconomic factors rather than exposure in utero to cocaine.]
But those women were, as I said, the canaries in the coal mine. What we see now is a deeper and wider encroachment against women and their civil liberties. And it’s not just about pregnancy. It’s even about the potential to become pregnant as we see [in the U.S. Supreme Court’s recent Hobby Lobby decision].
MP: How is Minnesota on protecting the rights of pregnant women? Are we better than other states?
MG: Minnesota is one of four states that passed an incredibly draconian law in the 1980s. Wisconsin passed a similar law. Under [these laws] a woman can be civilly confined against her will to protect the fetus. Just last year, there was the case of Alicia Beltran in Wisconsin, who was civilly confined for more than 70 days because she told medical providers that at another point in her life she had been addicted to prescription medication. She was not provided an attorney, although an attorney was provided for her fetus.
Now at the time it was very clear from her blood analysis that she was not abusing any kind of drugs. She was gainfully employed; she had a lovely apartment; she was very happy about her pregnancy. The police surrounded her house, demanding that she come out. They arrested her, confined her, and when she was released more than 70 days later, she had lost her apartment and lost her job. How is that better for the fetus? She was not suffering from any addiction at the time. She had simply shared information that she thought was confidential. That it was turned over to police and that she was confined is outrageous, but it turns out in Minnesota we have a similar law.
MP: What needs to be done to prevent similar cases from occurring?
MG: We should all be concerned — not just women, but men also. One, it’s an encroachment upon the physician/patient relationship. All people who may see a doctor at any time should be concerned about a breach of medical confidentiality and the compromise of the fiduciary relationship that physicians have with their patients. The Supreme Court has said that there is no relationship that deserves higher protection [or that puts a higher] burden on the fiduciary relationship. What does this mean? This means that doctors must put their patients’ interests first. Within the framework of that fiduciary relationship are things that people commonly believe: that they can speak confidentially and openly with their physician, that they can trust their physician, and that their physician will try to help them. When that dynamic, that relationship, has been compromised — or, in fact, even destroyed, as in the case of pregnant women — then everybody should be concerned.
The other thing is that organizations that advocate for women’s rights, for civil rights and for civil liberties ought to be concerned about these issues. If [the rights under the U.S. Constitution’s] Fourteenth and Ninth Amendments — the rights that relate to autonomy of the body, liberty and privacy — mean nothing for pregnant women, what do they mean for other people? At what point is it no longer just about the pregnant woman, but about the fact that someone is obese or someone is an alcoholic or someone lives in an area that happens to be more toxic to their children’s health? These are real matters. It might have seemed some years ago that we would never be in a society where chemotherapy could be denied to a pregnant woman or where a pregnant woman would be arrested and charged with murder simply because she had a stillbirth. Thirty years ago that might have seemed incredibly fantastic, as if it could never happen. But now we see, in fact, that it can happen, and that it does.
What I believe needs to happen is that we need to be very mindful about the way in which the physician and patient relationship has suffered. Doctors need to advocate just as much as patients and physician organizations [to ensure] that the [patient-doctor] relationship cannot be compromised and that doctors cannot serve as agents of the state to carry out the will of politicians who are simply looking to get reelected and stay in office. In addition, organizations must come to see this as their issue, even though they might say that “pregnancy is not really what we do.” This involves everyone.
And one final thing: Organizations tend to pick “poster children” for their causes, which is understandable. They want to put their best, most sympathetic face forward for the issue. And [in these pregnancy cases], people often find it difficult to have a sense of sympathy for the women because they [and their lives] are so complicated. They’ll say, “Well, if the doctor says that the fetus might be at risk, then why not [make the woman do what the doctor insists upon]?” The women are often just not seen as good “poster children” for doing everything right during pregnancy.
Yet, many of these women are actually doing the right things. They’re getting arrested when they go for prenatal visits. They’re going to their doctors and nurses, seeking prenatal care and saying, “I need help.”
They are trying their very best, and we must understand that.