CONTENTS INTRODUCTION I. ADVANCE DIRECTIVES AND THE RIGHT TO REFUSE MEDICAL TREATMENT A. The Development of the Advance Directive Statutory Scheme B. Statutory and Non-Statutory Advance Directives C. Pregnancy Exclusions in Advance Directives II. FORCED MEDICAL PROCEDURES ON PREGNANT WOMEN III. REVISITING THE APPLICATION OF A BALANCING TEST TO FORCED CESAREANS A. Forced Surgery and the State's Interest in Potential Life as Recognized by Roe v. Wade B. State Interests Generally Recognized by Courts in Refusal of Medical Treatment Cases C. Public Policy Concerns D. Second-Class Citizenship for Pregnant Women IV. BIRTH DIRECTIVES CONCLUSION INTRODUCTION
In 2011, a doctor at a New York hospital followed an internal policy to force a patient, Rinat Dray, to have a C-section. (1) Dray had experienced two previous unwanted C-sections and hoped to deliver her third child naturally. After her first C-section, Dray experienced difficulty walking and holding her child for eight months, and Dray, who is a Hasidic Jew, worried that numerous C-sections would impact her ability to have a large family. (2) During her third pregnancy, Dray selected the Staten Island University Hospital because it had lower rates of C-sections than the statewide average, and the hospital supported VBACs, or vaginal births after cesarean (or C-section), which some hospitals have policies prohibiting. (3) The hospital, however, had a private policy providing doctors with instructions for performing procedures and surgeries without a pregnant woman's consent. The policy authorized doctors to override a pregnant woman's decision if the doctors are unable to persuade the woman to consent and multiple doctors agree that the procedure or surgery has a "reasonable possibility of significant benefit" for her fetus that "outweigh[s] the possible risks to the woman." (4) The policy additionally provided that in the case of an emergency that threatens the fetus, a single doctor, without consultation, has the authority to override a pregnant woman's decision. (5) After Dray went into labor, her doctor began pressuring her to have a C-section, and when Dray refused, he threatened that she would be faced with child abuse or neglect proceedings. (6) As Dray begged for more time to deliver naturally, the doctor ordered his staff to wheel Dray into an operating room and delivered her son by C-section. While performing the procedure, the doctor cut into Dray's bladder, causing permanent damage. (7)
After Dray brought a claim against the hospital, its policy became public for the first time. In Dray's medical chart, the doctor wrote: "The probable benefits of a C-section significantly outweigh the possible risk to the woman.... I have decided to override her refusal to have a C-section." (8) While Dray reports no recollection of the doctor explaining to her that her baby was in danger, in legal records, the hospital claims that the C-section likely saved the baby's life by preventing a uterine rupture. (9)
Dray's is far from the first reported case of a forced C-section. Over the past several decades, as fetal rights activism has grown, doctors, hospitals, and judges have compelled women to undergo unwanted C-sections when the procedure is believed to be beneficial to the fetus. Perhaps the most well-known case is that of Angela Carder, which occurred in the late 1980s. (10) Carder, who was twenty-seven years old, had suffered from cancer since the age of thirteen. Against the wishes of Carder, her family, and Carder's doctors, the hospital succeeded in securing a court order to perform a C-section on Carder. Neither Carder nor her daughter survived the surgery. (11) In ordering the C-section, the trial court balanced the state's interest in protecting potential fetal life, as recognized in Roe v. Wade, (12) against Carder's right to refuse unwanted medical treatment. After Carder's death, a D.C. Court of Appeals overturned the court order and found its application of a balancing test improper. (13) But state and lower federal courts remain split on whether a balancing test should be applied in this context and whether forced C-sections violate the constitutional rights of pregnant patients.
In the 1980s, around the same time that In re A.C. was decided, courts and legislatures were giving increased recognition to patient rights and autonomy in the context of end-of-life decision-making. In 1990, the Supreme Court recognized the right to refuse medical treatment in Cruzan v. Missouri Department of Health. (14) Whereas in the context of forced C-sections, some courts--like the trial court in In re A.C.--used Roe to override pregnant women's constitutional rights, Cruzan cited Roe to support patient rights. (15) Cruzan's establishment of the right to refuse medical treatment coincided with states' widespread enactment of advance directive statutes, which are intended to protect patient autonomy by ensuring that doctors follow patients' end-of-life wishes. However, similar to forced C-sections, some states' advance directive statutes reject the autonomy of pregnant patients by providing that if the patient is pregnant, then her advance directive will be disregarded or life-sustaining treatment will be administered regardless of her wishes. (16)
This Comment argues that in the context of compelled C-sections, balancing pregnant patients' constitutional rights against state interests, particularly the state's interest in protecting potential life as recognized in Roe v. Wade, is misguided. Decisions that apply a balancing test misapply Roe, do not reckon with the magnitude of the constitutional right to refuse medical treatment, and ignore important public health concerns, such as the possibility of driving women with high-risk pregnancies away from health care. These policy concerns are particularly relevant given the public's increased attention to the high rates of maternal mortality and morbidity in the U.S., especially among women of color, who are disproportionately impacted by forced C-sections. Finally, decisions finding that forced C-sections do not violate the rights of pregnant patients are explicitly or implicitly based on the premise that pregnant women are a special class of persons with diminished constitutional rights, leaving pregnant women vulnerable to potentially unlimited state surveillance and intervention.
As a safeguard for the constitutional rights of pregnant patients, this Comment proposes a model based on advance directives that allows patients to document their wishes for medical care during childbirth. Similar to advance directive statutes, this model form would be most effective as legislation. Because advance directives, whether statutory or non-statutory, are enforceable through the constitutional right to refuse medical treatment, a non-statutory "birth directive" should likewise be enforceable. However, until the Supreme Court addresses the issue, and without relevant legislation, a "birth directive" would likely only be enforced by courts in certain jurisdictions. The issue is further complicated by pregnancy exclusions contained in many states' advance directives, the constitutionality of which have not been substantively addressed by any court. Despite these potential barriers, this model provides pregnant patients with a way to begin asserting their autonomy in medical settings.
Part I of this Comment examines the history of the advance directive statutory scheme and case law recognizing the right to refuse medical treatment. Part II provides an overview of cases considering the constitutionality of forced medical procedures on pregnant women. Part III reexamines the balancing test that has been applied by some courts in the context of forced C-sections and argues that the use of the balancing test is improper. Finally, Part IV provides a model birth directive form.
ADVANCE DIRECTIVES AND THE RIGHT TO REFUSE MEDICAL TREATMENT
The courts' recognition of the right to refuse medical treatment has been intertwined with the development of the states' advance directive statutory scheme, including the enactment of statutes providing for living wills and health care proxies. (17) As states began to enact advance directive statutes, the most fundamental patients' rights cases were decided, primarily involving end-of-life decision-making.
The Development of the Advance Directive Statutory Scheme
Luis Kutner is credited with first proposing the idea of a "living will" in his 1969 Law Review article. (18) Kutner sought to address the dilemma in our criminal law in which a person seeks to take the life of another in order to end their suffering. His proposal relied on the right to refuse treatment and the right to privacy. (19) Consciousness and concern among the public and the legal community regarding the ability to make end-of-life decisions became prevalent several years later, in 1976, when the influential New Jersey case In re Quinlan (20) sparked growing awareness of the issue. (21) In re Quinlan involved a twenty-one-year-old woman, Karen Quinlan, who was in a state of unresponsive wakefulness. (22) Quinlan's father sought to be appointed as his daughter's guardian in order to discontinue her life support. (23) The court found that Karen Quinlan had a right to decline medical support, asserted by her guardian, under certain circumstances. (24) The court determined that the right stemmed from her right to privacy, similar to "a woman's decision to terminate pregnancy under certain conditions" as recognized in Roe v. Wade. (25) The court, however, found that this was not an absolute right and balanced it against the state's interest in the "preservation and sanctity of human life." (26)
A Time magazine article from 1975 discussing the case noted that some debate surrounding the issues in Quinlan arose because many doctors were "taught to regard death as an enemy and do all they can to defeat it" and viewed...