Inconsistent state court rulings concerning pregnancy-related behaviors.

• Author: Hoffman, Lidia

1. INTRODUCTION II. FACTORS INFLUENCING LEGAL RULINGS A. Pregnant Women's Right to Self-Determination and Bodily Integrity B. Pregnant Women's Right to Privacy C. Pregnant Women's Right to Free Exercise of Religion D. Pregnant Women's Right to Protect Their Health and Lives E. Fetal and State Rights III. "BALANCING" THE RIGHTS OF A WOMAN AND THE FETUS IV. THE EFFECTS OF STATE COURT RULINGS V. POLICY RECOMMENDATIONS VI. CONCLUSION I. INTRODUCTION

   Women have the right to terminate their pregnancies, (1) although it is neither absolute nor free from numerous attempts to be abolished or to be significantly limited. (2) Attempts to regulate pregnancy have also affected women's rights to make decisions concerning the refusal of medical procedures. (3) In In re Brown, (4) the Illinois court appointed a guardian to protect the interests of a fetus and ordered a pregnant woman to undergo a blood transfusion against her will. (5) In 2004, Melissa Rowland refused to undergo a cesarean section. Doctors claim that her refusal resulted in the stillbirth of one of her fetuses. (6) She became the first pregnant woman arrested for homicide because of her behavior during pregnancy. (7)

   State courts vary in their willingness to protect pregnant women's rights to self-determination, bodily integrity, privacy, and religious freedom; these rights are sometimes outweighed by fetal rights to live. (8) Different state courts have issued many competing decisions, which emphasizes a lack of unification in this area of law. (9) This inconsistency in the law creates confusion for women concerning the scope of their legal protections and alters women's selection of prenatal care and decision to give birth. Thus, it is important to recognize the prevailing themes and grounds on which courts have rested their opinions.

   An analysis of these state court rulings will expose a lack of unification among states' interests in protecting either women's rights or fetal rights. This article will first identify the factors that courts have used in their rulings; these are the factors that judges most often have used to support or limit pregnant women's constitutional rights. A psycho-legal analysis then examines the effects of inconsistent rulings on women, the medical profession, and the law. The concluding section will provide recommendations for pregnant women and offer policy suggestions.

2. FACTORS INFLUENCING LEGAL RULINGS

   A number of recent court cases emphasize inconsistencies in the law concerning pregnant women's rights and fetal rights. (10) Some courts recognize fetal rights at viability, (11) whereas other courts sustain a mother's overriding right to refuse any medical treatment during the entire pregnancy. (12) Fetal rights are based on the state's compelling interest to protect human life, especially at viability, and on recognition of a fetus as a person under particular state laws. (13) Most state courts reference the provisions of Roe v. Wade (14) that refer to "viability" as the point at which the state has a compelling interest in protecting fetal rights to live and be born healthy. (15) Not all courts, however, have referred to the point of viability as the premise for their rulings. (16) In a few cases, the judges noted the state's compelling interest in protecting the life of a not-yet-viable fetus. (17)

   The prevailing factors on which courts rest their holdings about pregnant women's rights to refuse medical treatment can be grouped into categories based on common themes. Identifying these themes will emphasize the factors on which courts base their opinions and how these opinions affect pregnant women's rights and fetal rights. These factors include self-determination, bodily integrity, privacy, free exercise of religion, and the protection of a woman's health and life. The remainder of this section will focus on each of the major factors that judges have relied on in their rulings.

   1. Pregnant Women's Right to Self-Determination and Bodily Integrity

      A right to control one's body is an issue of one's autonomy, and typically the state is not allowed to interfere in these intimate, personal decisions. (18) The Fourteenth Amendment to the U.S. Constitution protects the right to bodily integrity. (19) A right to self-determination is protected under the common law, (20) and it is supported by the doctrine of informed consent. (21) Individuals have a fight to refuse to subordinate their fights to the rights of others, even in order to save another person's life. (22) This provides a competent adult with the fight to refuse to consent to any medical treatment being performed on him or her. (23)

      Courts that have heard cases concerning the pregnant woman's right to refuse medical treatment have discussed such rights. (24) Several courts established the legal importance of a pregnant woman's rights to self-determination and refusal of an invasive medical treatment based on the "reasonable man" standard. (25) The "reasonable man" standard originated in the development of the common law. (26) This standard concerns the ability of an individual to act sensibly (e.g., making a reasonable decision whether to undergo a medical procedure). (27) Pregnancy does not prevent women from adhering to this standard; thus, pregnant women have the full capacity to make decisions for themselves, including the decision to refuse or consent to any medical treatment.

      This approach is reflected in the court ruling in Mercy Hospital v. Jackson. (28) In this case, the Maryland Court of Special Appeals denied a hospital's request for appointment of a guardian for a pregnant Jehovah's Witness who refused a blood transfusion during a cesarean section. (29) The court's reasoning was based on a competent individual's right to bodily integrity. Similarly, in In re Baby Boy Doe, the judge ruled that a woman's right to refuse an invasive medical procedure, such as a cesarean section, does not diminish during pregnancy; thus it is absolute. (30)

      The right of a pregnant woman to self-determination was the focus of the In re Brown case. (31) In this case, a pregnant woman lost a lot of blood during surgery; the doctors recommended a blood transfusion, but she refused. (32) The trial court ordered the transfusion to be administered, but the appellate court ruled differently, articulating that the state may not overrule a competent woman's decision to refuse medical treatment in order to save the life of her fetus. (33) The judge also stated that a blood transfusion is an invasive medical procedure that interferes with bodily integrity. (34)

      Some courts have even noted that pregnant women do not face civil liabilities for hurting their fetuses. (35) The court in Stallman v. Youngquist enunciated the right of a pregnant woman to reject medical treatment, even if it will result in jeopardizing her health and life, and the life and welfare of her fetus. (36) In this case, the Illinois Supreme Court refused to recognize a mother's liability for prenatal injuries to her fetus. (37) The court reasoned that such claims would expose mothers to unreasonable state scrutiny and would violate the right to bodily integrity. (38)

      In contrast, the Washington, D.C. court in In re A.C. reached the opposite conclusion regarding a pregnant woman's right to refuse invasive medical treatment. (39) There a young woman was pregnant when doctors discovered that her cancer had returned. She became seriously ill before the fetus was born. Although some of the doctors doubted that the child would live and predicted that a cesarean delivery will hasten the mother's death, the court ordered the cesarean surgery in an attempt to save the child. (40) The child died within two hours after the delivery, and the mother died two days later. (41)

      These few examples illustrate the inconsistencies among states. The obligation of a pregnant woman to comply with doctors' advice to undergo a particular medical treatment conflicts with her right to self-determination and bodily integrity. Courts disagree as to whether the pregnant woman's rights or the rights of the fetus should prevail. (42) This is the same situation for women's right to privacy.

   2. Pregnant Women's Right to Privacy

      A pregnant woman has a fundamental right to privacy under Canterbury v. Spence and Stallman v. Youngquist. (43) In some cases of pregnant women rights to privacy, state courts have issued opinions based on the Ninth Amendment. (44) Although the Constitution does not articulate the right to privacy, the U.S. Supreme Court in Griswold v. Connecticut determined that this right is one of the "unenumerated" rights protected by the Ninth Amendment. (45) The Griswold Court emphasized the significance of the right to privacy concerning individuals' decisions to bear a child. (46)

      Some pregnant women have refused medical treatment based on the right to privacy. (47) In Taft v. Taft, (48) the Massachusetts Court of Appeals disregarded a lower court's order that required a woman in her fourth month of pregnancy to undergo an invasive medical procedure. (49) The Court held that there were no compelling circumstances to justify overriding her right to privacy. (50)

      In other cases, judges have overruled pregnant women's rights, declaring that the fetal rights to live and to be born healthy outweigh the mother's rights. (51) For instance, the court in In re A.C chose not to uphold the incompetent woman's right to privacy (against the dissent's objections) and instead determined that the decision could be made by a guardian who could be appointed to make the decision whether the procedure should be performed. (52) As the dissent points out, overruling the mother's wishes...