ABSTRACT: This article presents a case that highlights the issues involved in court-ordered care. A pregnant woman, Samantha Burton, was admitted to a hospital in Florida when her membranes ruptured at 25 weeks of gestation; her obstetrician prescribed continuous inpatient bed rest. However, with 2 young children and a job, she found the prospect of a 3-month hospital stay overwhelming and decided to go home. Immediately, the hospital’s attorney, working with the local state attorney, acting on the state’s behalf, asked a court for judicial intervention to force Burton to follow doctors’ orders and submit to continued care. Within hours, the court heard testimony from both attorneys and the obstetrician acting as the unborn child’s attending physician. The patient testified by telephone without counsel. The judge gave permission the next day to the hospital, any attending health care provider, and the obstetrician’s practice to administer any care deemed necessary to preserve the fetus’ life and health. He denied Burton’s request to change hospitals and ordered her to comply. In a few days, her dead fetus was delivered by cesarean.
Coerced care places maternal health at risk because continued care, bed rest, other interventions, and subsequent cesarean delivery all carry inherent risks. Subjecting a patient after informed refusal to forced care, even if court-ordered, may result in a lawsuit for violations of civil and constitutional rights. Judicial intervention is not likely to protect a health provider from litigation, whatever the outcome of the pregnancy. The concept of forced care of pregnant women leads to a number of troubling questions. Should the state prosecute pregnant women who reject medical care for adverse outcomes? Can the fetus have rights superior to those of a pregnant woman, a person who has already been born? Should the state prohibit a pregnant woman from legal activities, such as smoking cigarettes or drinking alcohol, that also endanger fetal health?
There has been no uniformity among state and federal courts on the issue of court-ordered care. Over 2 decades from 1973 to1992, courts in at least 25 states have ruled in favor of providers asking for forced care of their pregnant patients who refused consent to medical care The Florida court in the Burton case held that the rights of the fetus were superior to the rights of a pregnant woman. A federal appellate court in the District of Columbia Circuit ruled that a pregnant patient’s wishes “must be followed in virtually all cases, unless there are truly extraordinary or compelling reasons to override them.” It is unclear, however, as to what is an extraordinary or exceptional case, and this ruling offers physcians little clinical guidance. A state court in Illinois ruled that “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.” The author believes that the Illinois approach, which respects informed refusals, should be the rule for courts, hospitals, and physicians.
Physicians should discuss all aspects of recommended care with their patients who have high-risk pregnancy issues and adequately document an informed refusal. Forced intervention endangers the liberty, privacy, and equality of not just pregnant women. It threatens the liberty of all individuals in a free society.
UCLA School of Law, Los Angeles.