By R. Rhett Owens
On August 5, 2016, a Jefferson County, Alabama jury awarded $16 million to plaintiffs in a case involving claims arising from injuries that one of the plaintiffs sustained as a result of the birth of her fourth child. Plaintiffs alleged that defendants, a hospital and its employees, engaged in medical negligence and fraud by advertising that the hospital was open to facilitating “natural” births, but in plaintiffs’ case (and against the plaintiff mother’s will), the defendants compelled the mother to give birth in a manner different than she desired, and had planned with her obstetrician.
This verdict raises interesting questions about how medical providers should confront a situation in which an expectant mother’s wishes and medical science diverge. For example, if a woman wants to deliver naturally, but her doctors determine it is medically necessary for her baby to be delivered by Ce-sarean section (“C-section”), are the woman’s doctors obligated to honor her wishes, or are there legal interests that prevail over such wishes, thus authorizing the doctors to deliver the baby via C-section despite the woman’s objections? As might be expected, the answer to this hypothetical is not entirely clear.
The Right to Refuse Treatment
Medical providers are required to obtain informed consent from patients prior to performing a medical procedure, informed consent being defined as “the willing and uncoerced acceptance of a medical intervention by a patient after adequate disclosure by the physician of the nature of the intervention, its risks and benefits, as well as of alternatives with its risks and benefit."
Importantly, a "logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment." Following the lead of the U.S. Supreme Court, a number of state courts have acknowledged a patient's right to refuse medical treatment.3 However, that an individual has the right to refuse medical treatment "does not end the inquiry: whether  constitutional rights have been violated must be determined by balancing  liberty interests against the relevant state interests."4
Predictably, in cases involving a pregnant woman's refusal of treatment, and specifically in cases where a woman refuses to give birth via a medically necessary C-section (a common situation confronted in applicable case law), courts have struggled to consistently balance a woman's constitutional right to refuse treatment and the state's interest in preserving life under circumstances where recommended treatment, including the performance of a C-section, is necessary to preserve either the woman's life or the life of her unborn fetus.
Some Cases Hold State's Interest in Preserving Life Trumps Right to Refuse Treatment
In Pemberton v. Tallahassee Memorial Regional Medical Center, Inc. ,5 the plaintiff (over her objection) was ordered by a Florida state court to submit to a C-section deemed necessary to avoid a "substantial risk" that her baby would die during delivery. Following the successful delivery of her baby, the plaintiff brought suit, claiming that her hospital and its physicians violated her constitutional rights via the compelled C-section. In granting the hospital's motion for summary judgment, the Pemberton court recognized the "important constitutional interests .. .implicated" by the situation, but nonetheless held that "[w]hatever the scope of [plaintiff's] personal constitutional rights.. .they clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child."6 In support, the Pemberton court relied on a principle announced in Roe v. Wade, namely, that "by the point of viability-roughly the third trimester of pregnancy-the state's interest in preserving the life of the fetus outweighs the mother's own constitutional interest in determining whether she will bear a child."7
similar decision was issued by the Supreme Court of Georgia
in Jefferson v. Griffin Spalding Cry. Hosp.
The woman and her husband moved for a stay of the order, which was denied by the Supreme Court of Georgia. Although no majority opinion was issued, the Jefferson Court did issue two concurring opinions. While the first of these concurring opinions recognized that a court’s power to order a competent adult to submit to surgery was “exceedingly limited,” it nonetheless indicated that the “unborn child’s right to live” outweighed the mother’s “right…to practice her religion and to refuse surgery on herself.”12 The second concurring opinion focused on the fact that the compelled C-section was the “least burdensome alternative” for preserving the state’s “compelling interest in preserving the life of [the] fetus.”13
A more recent decision, issued in 2010 by the Florida District Court of Appeals, presents a framework for balancing the interests implicated in a situation in which a pregnant woman refuses medical treatment. In Burton v. State, a pregnant woman initially refused to submit to medically necessary treatment, including anticipated delivery via C-section. Operating under a procedure set forth in a 1994 decision, In re Dubreuil,15 the State of Florida, having received notification of the woman’s refusal of treatment, determined that a sufficient state interest was at stake and obtained an order to compel the woman to submit to the recommended medical treatment. Although the woman’s appeal of the order was mooted by her eventual submission to the treatment, including delivery via C-section, the Burton court decided to exercise jurisdiction over the appeal, as the situation at issue–a medical situation requiring immediate resolution–was “capable of repetition yet evading review.”16
In attempting to sum up Florida law on the issue, the Burton court held that “the test to overcome a woman’s right to refuse medical intervention in her pregnancy is whether the state’s compelling state interest17 is sufficient to override the pregnant woman’s constitutional right to the control of her person, including her right to refuse medical treatment.”18 The Burton court further held that where the state’s “compelling interest” outweighed the woman’s right to refuse treatment, the state had to show “that the method for pursuing that compelling state interest is narrowly tailored in the least intrusive...