Chapter 7.C.2 Pregnant Women and Forced Medical Treatment

Notes: Forced Medical Treatment

3. Court-Ordered Medical Interventions. In Burton v. Florida, a Florida Appeals court overturned a lower court order compelling medical treatment of a pregnant woman. 2010 WL 3168124 (Fla. App. 1 Dist), __ So. __. The appeals court noted the state’s interest in fetal life became compelling only at viability and that viability must be proven in each case. Moreover:

The test to overcome a woman's right to refuse medical intervention in her pregnancy is whether the state's compelling state interest is sufficient to override the pregnant woman's constitutional right to the control of her person, including her right to refuse medical treatment. . . . In addition, where the state does establish a compelling state interest and the court has found the state's interest sufficient to override a pregnant patient's right to determine her course of medical treatment, the state must then show that the method for pursuing that compelling state interest is “narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.”

Id. at *2. A concurring judge would also have found a constitutional violation based on the pregnant woman’s lack of legal representation prior to the forced medical treatment. The dissenting judges would have dismissed the case as moot.

Problem: Pregnancy and Living Wills

See Anita J. Catlin & Deborah Volat, When the Fetus is Alive but the Mother is Not: Critical Care Somatic Support as an Accepted Model of Care in the Twenty-First Century?, 21 Crit. Care Nurs. Clin. N. Am. 267 (2009)(ethical analysis).

Problem: Cesarean Deliveries

One of the objections to the specter of forced cesareans is the image of a pregnant woman in restraints undergoing the procedure against her will. An interesting (and distressing) parallel case arose in the context of prison care when a female prisoner alleged a violation of the 8^th amendment after she was forced to give birth while shackled to a bed. Nelson v. Correctional Medical Services, 583 F.3d 522 (8^th Cir. 2009)(en banc).

Problem: Access to Drugs Associated with Birth Defects

For additional discussion see Lars Noah, Too High a Price for Some Drugs? The FDA Burdens Reproductive Choice, 44 San Diego L. Rev. 231 (2007); Toby L. Schonfeld et al., iPledge Allegiance to the Pill: Evaluation of Year 1 of a Birth Defect Prevention and Monitoring System, 37 J.L. Med. & Ethics 104 (2009).