Crying murder when C-section refused
Disturbing implications of a Utah prosecution
By Sherry F. Colb
Special to CNN.com
(FindLaw) -- Last week, Utah prosecutors charged a woman with murder for failing to undergo a Caesarean section ("C-section") delivery, a failure that allegedly resulted in the death of one of her unborn twins. Prosecutors have suggested that the reason the woman, Melissa Ann Rowland, refused the procedure was her desire to avoid an abdominal scar.
Ultimately, this prosecution raises a very simple question: Are we, as a society, prepared to demand more of pregnant women than of anyone else?
The answer to this question must be no, if we are sincerely committed to equality.
To avoid creating the impression that I take the responsibilities of pregnancy lightly, let me be clear in stating that I believe a woman who intends to carry her pregnancy to term has a moral obligation to attempt to avoid situations and activities that will harm her unborn child. Pregnant women who engage in drinking sprees or other high-risk behavior, without considering the impact on their children, are doing something that I consider selfish, reprehensible, and cruel.
The fact that the pregnant woman's child will suffer in the future rather than in the present because of her actions, moreover, does not -- to my mind -- mitigate the harm of those actions.
Further, if an uninvited third party were to inflict upon a pregnant woman the very same exposure to hazards to which she is exposing herself, I would have no hesitation about subjecting the third party to criminal responsibility for the harm caused to the unborn child. Indeed, I have said as much in an earlier column.
To make a principled case for opposing Rowland's prosecution for murder, someone who values fetal life must distinguish what the defendant allegedly did -- failing to obtain a C-section against doctors' orders -- from the actions that a third party might carry out to cause death or serious bodily harm to an unborn baby. And one cannot rely on the fact that the twin whose death Rowland allegedly caused was not yet born.
Pregnant women versus others
Advocates for abortion rights sometimes fall into what I have described in an earlier column as the pro-life trap of arguing about whether a fetus is a person. The only coherent defense of abortion, however, once a pregnancy has progressed beyond the early stages, is that in a free country such as ours, we do not demand that people give their bodies over to others -- even their own children -- in the way that forced pregnancy would entail.
We do not make parents of physically separate children, for example, donate a kidney or bone marrow or even blood to save their children (though many of us hope that parents would love their children enough to make these extreme sacrifices without the force of a legal obligation).
Though for many a welcome and beautiful event, it is nonetheless true that the experience of pregnancy physically taxes a woman's organ systems and health in ways that simply do not admit of analogy in the existing law of ordinarily required sacrifice.
Yes, individuals can be made to pay money to support their children, even when those children are unwanted. But as a matter of common sense, the mandating of financial payments, however burdensome, does not rise to the level of imposition upon bodily integrity implicated by pregnancy.
And once an imposition rises to that level, we no longer see the law making such demands, even of parents.
'So what?,' the reader might be thinking. That's all about abortion. Rowland chose not to have an abortion.
In fact, far from demanding that she remain pregnant, her doctors asked her to stop being pregnant to save the lives of her children, and she was unwilling to do that. Does Rowland really have a right to remain pregnant and thereby to kill her children?
The question is a good one, but the distinction between punishing a woman for abortion, and punishing her for refusing surgery to terminate a pregnancy, is illusory. Just as a pregnancy represents a major physical intrusion, so then does surgery. Indeed, one can readily understand the seriousness of major surgery without even knowing much about how difficult pregnancy can be.
Imagine a law that said that some sector of the population -- defined by race, gender, or national origin -- must undergo a particular surgical procedure, involving all of the risks and painful after-effects of surgery and anesthesia. Such a law would be objectionable and obviously unconstitutional no matter how helpful to others, including children of the targeted group.
An example? It is difficult to invent one, but let us use our imaginations. Say a hypothetical (but devastating) disease -- fabricitis -- is quite common. Say also that the disease can be cured completely with the injection of liver cells from men of Finnish descent. The liver cells must be extracted from the men before they reach the age of 45, though, and the only way to accomplish the extraction is through abdominal surgery.
The criminal law could not demand of Finnish-American young men that they undergo the surgery to save victims of the disease, even those victims who are close relatives of the patients.
Altruistic individuals could choose to make the sacrifice, of their own free will (and some would surely do so). But to incarcerate those who did not as murderers would here represent unconstitutional discrimination on the basis of national origin and would place a grossly unfair demand on the relevant minority.
Targeting a limited population
Why do I focus on a minority rather than saying that the law could not force everyone to undergo abdominal surgery?
The reason is that a nation of enforced altruism would not necessarily be inferior to or less desirable than our own.
It would, of course, be highly burdensome and intrusive if everyone were legally obligated to donate bone marrow and blood routinely, and if people had to undergo surgery to help others. In addition, such a scheme would probably violate existing constitutional liberty and privacy rights.
Nonetheless, if the demand were evenhanded, then we would have some assurance that a majority of the public sincerely felt that the benefits -- in the saving of lives and the prevention of extreme suffering -- outweighed the costs in liberty and autonomy.
In other words, there is no reason why the costs of demanding universal altruism would be systematically undervalued or the benefits systematically overvalued if every member of society were subject to both.
Minimizing costs to others
Consider how different it would be, on the other hand, if a particular portion of the population were legally bound to carry burdens that the rest of us can avoid. The targeted group could be Finnish-American young men or pregnant women (or perhaps pregnant women like Ms. Rowland, who apparently had little money and lacked strong ties to her treating doctors).
In such a situation, it is quite plausible to expect that advocates for imposing this burden would minimize the cost and trivialize the objections while focusing almost exclusively on the real or imagined benefits of the compulsory sacrifice.
We see this in pro-life rhetoric that portrays women as casually having abortions to address "inconvenience." And we see it as well in the prosecutor's attempts to suggest that Ms. Rowland allowed her child to die in utero in order to avoid an unsightly scar -- a claim that conflicts with her own statement that she had already had C-sections (and scars) in the past and thus was not simply trying to preserve a scar-free aesthetic.
Most of us -- that is, men, women who are not pregnant, and many women who are pregnant but who do not have adversarial relationships with their doctors -- will never be in Rowland's position and are well aware of that. It would therefore be quite easy for a majority to tolerate criminal prosecutions, when the prosecutions will cost the majority nothing.
In addition to minimizing costs when they are borne by somebody else, there is also a human tendency to overvalue the benefits to be derived from reducing others' liberties.
This tendency has, for example, been a source of great concern for those who have suffered the effects of racial profiling both before and after the attacks of September 11th.
On top of unfairly distributing liberty, many have claimed, racial profiling also gives us an illusion but not the reality of greater safety. The same could be said of forced C-sections.
Up until now, this column has proceeded on the assumption that a doctor who tells a pregnant patient that she needs to have a C-section is generally providing sound advice that ought to be followed if the woman cares about her unborn children. Even if that assumption is true, I have argued, it is nonetheless unacceptable to require pregnant women to undergo major surgery for their children's sake (and on pain of criminal prosecution) when no one else is forced do so.
As it turns out, though, the premise that an obstetrician's surgical recommendation ought to be followed is itself questionable. In the U.S., approximately one quarter of all babies are delivered by C-section. According to the World Health Organization's Safety Standards, however, there is no justification for a C-section rate of higher than 10 to 15 percent.
That is, roughly one half of the C-sections in the U.S. are performed unnecessarily. Furthermore, as it turns out, the risk of maternal death is between twice and four times greater when a woman has a C-section than when she undergoes a vaginal delivery.
But doesn't the U.S. offer the best obstetrical care in the world? No. If we look at comparative C-section rates across industrialized nations, the U.S. rates -- as of 1995 -- were higher than those of at least ten other countries, including England, France, and Spain, where infant mortality rates were also lower.
C-sections are thus risky not only to pregnant women but to their babies as well -- a fact that certainly has some bearing on whether doctors who recommend surgery are necessarily practicing good medicine.
But what do these surgical rates have to do with the Rowland prosecution? Didn't one of her twins die, just as doctors feared? And doesn't that death show that at least in her situation, it was -- from her babies' perspective -- an obvious mistake for her to refuse a C-section?
In light of C-section rates in the U.S., the death of Ms. Rowland's baby does not necessarily support the conclusion that refusing the surgery was wrong. The alarmingly high rate of C-sections in this country evidences a tendency for doctors here to intervene surgically in many instances in which such intervention is inappropriate and thereby to create unjustified risks to mothers and their babies.
When it comes to recommended C-sections, it is thus difficult to know in advance that a particular doctor's recommendation represents good (never mind the only sound) advice.
Specific court cases bear out this concern about C-section recommendations as well. In three of the first five cases in which providers sought court ordered C-sections in the U.S., for example, the women delivered vaginally without a problem. In two of the three cases, moreover, the doctors predicted that both the woman and her offspring would die, though the women went on to deliver healthy babies without surgery.
Even in the Rowland case itself, doctors said that her twins would likely die without a C-section, but in fact, one of the two survived. This is not to say, of course, that a 50% infant mortality rate is an acceptable result. However, the surviving twin does -- even in hindsight -- point to a serious problem in allowing courts to place unquestioning reliance upon medical judgment when it comes to C-sections.
And unlike court orders, criminal prosecutions can benefit from 20-20 hindsight. They thus allow prosecutors to ignore the many cases in which doctors said the very same things that they said to Ms. Rowland, and outcomes proved the doctors to be very much mistaken.
In favor of Rowland
In short, the arguments against the homicide prosecution of Melissa Ann Rowland for failure to have a C-section are substantial and ultimately decisive.
To undergo surgery to help another person -- even one's own child -- is a decision currently left up to the individual in our society. Moral obligations to risk life and limb for one's children are not enforced by the criminal law.
To select a subgroup -- pregnant women -- to face mandatory surgery is thus patently unfair. And in addition to embracing a double-standard, the advocate of forced C-sections must confront the wealth of data suggesting that the those who decide a C-section is necessary for a child's wellbeing are consistently making errors that risk the lives and wellbeing of women and their babies.
If we wish to become a nation of good Samaritans, a step that this country does not appear poised to take at this time, we must make sure that the obligations of such a choice rest equally upon all of us. Otherwise, we risk subjugating a minority, and we systematically fail to assess the real-life costs and benefits of what we do.
In the interests of justice, the prosecution of Ms. Rowland should be dropped or dismissed.
Sherry F. Colb, a FindLaw columnist, is a professor at Rutgers Law School in Newark, New Jersey.