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March 17, 2004

Melissa Rowland Redux - A Woman's Right To Bodily Integrity

Update: Jeanne at Body and Soul linked to two related articles, "Depraved Indifference: Caesareans, Patriarchy, and Women's Health" from ZNet and "Crying Murder When A Woman Refuses A C-Section" from FindLaw.


Melissa Rowland is not the first woman to find her right to bodily integrity superceded by the "potential life of a fetus."

Tom Paine's article Coercive Medicine describes several cases like Rowland's. I provide more detail about those cases (and more) below. He also described the "strategy of distraction" being used by the media in reporting about Rowland to support elevating fetal welfare over the rights and life of the woman. He wrote the following:

"Responding to a chorus of opposition to the arrest, the press and the prosecution are now depicting Melissa Rowland as irrational because they claim she suffered from mental illness, and immoral because she used drugs. In addition to the serious questions these comments raise about violations of patient's rights to medical privacy, it is clear that all adults, even those with mental disabilities, have a right to informed consent. If mental illness had truly been an issue, resorting to civil competency procedures not the criminal law was the proper thing to do. As for the allegations of drug use, Utah has as a matter of statutory law chosen to deal with issue of pregnancy and drug use through the public health and child welfare systems, not the criminal law. This decision comports with 48 other states and the unanimous recommendations of leading medical and child advocacy groups."

Rachel Roth, Ph.D., an assistant professor of political science and of women's studies in Arts & Sciences at Washington University in St. Louis, addressed the drive to create fetal rights that would override women's rights in her book, "Making Women Pay: The Hidden Costs of Fetal Rights," One of many cases she discussed included that of Ayesha Madyun, a nineteen-year-old college student, who "was pregnant with her first child. She was admitted to the District of Columbia General Hospital in the middle of the night, two days after her water broke. Predicting a 50 to 75 percent chance that the fetus would develop a potentially fatal infection if Madyun did not soon deliver, Dr. John Cummings recommended a cesarean. When Madyun refused to have the operation, the doctor sought and gained a court order to perform the operation over her objections. After the baby was delivered without signs of infection, the doctor did not seem troubled: 'You don't know that until it's done.'"

Ayesha Madyun survived, and her baby was delivered without the feared infection. Angela Carder was not so fortunate.

Angela Carder had suffered from cancer since the age of thirteen. During a period of remission when she was also 25 weeks pregnant, she learned that she was critically ill with lung cancer. She, her family (including her husband), and her doctors chose to prolong her life as long as possible. However, the hospital obtained a court-order to perform a c-section, which Carder did not want. Her doctors said the c-section could kill her. The court decided that the fetus had a right to live, and Carder was cut open. The fetus died in two and a half hours. Carder died two days later, with the c-section listed as a contributing factor to her death.

The en banc opinion (made after Carder's death) noted the heavy investment political groups had in this case. Americans United for Life and the United States Catholic Conference wrote amici curiae supporting the hospital and the fetus (the fetus was given a legal guardian). NOW Legal Defense and Education Fund, Concern for Dying, and the Society for the Right to Die provided amici curiae supporting Carder's decision.

The argument in support of the c-section included an assumption that Carder was incompetent in part due to heavy sedation; "apparently incapable of making an informed decision regarding medical care for herself and her fetus." The court decided that "[w]e hold that in virtually all cases the question of what is to be done is to be decided by the patient -- the pregnant woman -- on behalf of herself and the fetus. If the patient is incompetent  [**4]  or otherwise unable to give an informed consent to a proposed course of medical treatment, then her decision must be ascertained through the procedure known as substituted judgment. Because the trial court did not follow that procedure, we vacate its order and remand the case for further proceedings." When doctors told her on June 15 that her condition was terminal, Carder had agreed to treatment designed to extend her life and maintain her own comfort until at least her 28th week of pregnancy, when it would be more likely that her fetus would survive if intervention was necessary. She knew that the treatment presented a risk to her fetus. That night, her condition grew still worse and she consented to intubation to help her breathe. There was no evidence that she had consented to or even contemplated a c-section before her 28th week of pregnancy.

The next morning, the trial court ruled that at 26 1/2 weeks the fetus was viable. Counsel was appointed for both Carder and her fetus. The testimony resulted in the following (please note reliance on the decision to force Ayesha Madyun to undergo an unwanted c-section):

"After hearing this testimony n4 and the arguments of counsel, the trial court made oral findings of fact. It found, first, that A.C. would probably die, according to uncontroverted medical testimony, "within the next twenty-four to forty-eight hours"; second, that A.C. was "pregnant with a twenty-six and a half week viable fetus who, based upon uncontroverted medical testimony, has approximately a fifty to sixty percent chance to survive if a caesarean section is performed as soon as possible"; third, that because the fetus was viable, "the state has [an] important and legitimate interest in protecting the potentiality  [**13]  of human life"; and fourth, that there had been some testimony that the operation "may very well hasten the death of [A.C.]," but that there had also been testimony that delay would greatly increase the risk to the fetus and that "the prognosis is not great for the fetus to be delivered post-mortem. . . ." Most significantly, the court found:

The court is of the view that it does not clearly know what [A.C.'s] present views are with respect to the issue of whether or not the child should live or die. She's presently unconscious. As late as Friday of last week, she wanted the baby to live. As late as yesterday, she did not know for sure.
Having made these findings of fact and conclusions of law, and expressly relying on In re Madyun, 114 Daily Wash. L. Rptr. 2233 (D.C. Super. Ct. July 26, 1986), n5 the court ordered that a caesarean section be performed to deliver A.C.'s child.

Even after doctors had spoken to her after her sedation had worn off enough for her to regain consciousness, it was still unclear whether or not she had consented to the early c-section. Rather than abide by her previous wishes of waiting until her 28th week, if she reached it, the court again ordered that the c-section be performed.

Her fetus died within two and one half hours. Carder died two days later, with the c-section listed as a contributing factor to her death.

Here are several cases cited in Who Gets To Choose? Responses To The Foetal/Maternal Conflict, including the Carder case.

"Jefferson v. Griffin Spalding Country Hospital Authority 1981:[13] In this case, Jessie Jefferson had placenta previa and was 39 weeks pregnant.  She refused to undergo surgery or blood transfusion, due to her religion.  The Supreme Court of Georgia ordered, based on its belief that there was a 99% chance that Ms. Jefferson's baby would not survive vaginal birth, that Ms. Jefferson submit to a caesarean section and blood transfusions, if necessary.  In the final analysis, Ms. Jefferson completely flouted the court order, did not return to hospital and gave birth vaginally to a totally healthy baby."

Taft v. Taft, 1983:[14] In this matter, Mrs. Taft refused, on religious grounds, to undergo a surgical procedure which would enable her to continue her pregnancy rather that suffer a miscarriage.  The trial judge ordered that Mrs. Taft undergo surgery.  This was reversed on appeal - however, the judge in the appellate court stated that the court was able to override a woman's refusal of such an operation, but that such a decision was not required due to the specific facts of this case.

In re AC, Appellant 1987:[15] This is a tragic case in which Angela C. was dying of cancer and was 26 weeks pregnant.  Despite being heavily sedated and only having moments of real lucidity, Angela had mouthed the words "I don't want it done" when asked whether she would agree to a caesarean section being performed in an attempt to save the baby.  Despite her wishes, the District of Columbia Court of Appeals permitted a caesarean section to be performed.  Her baby died immediately and Angela died two days after the operation.  In that matter, it was generally conceded that the operation had probably hastened Angela's death.

From the same article:

Discussing the development of these cases, John Robertson, a Professor of Law at the University of Texas, has suggested that the State has the right to pass laws prohibiting a pregnant woman's ability to drink alcohol, smoke, or take drugs.  Further, he believes that the State should have the ability to legally punish women who act in a way which may cause harm to the foetus, such as not taking necessary medication or refusing to undergo a therapeutic procedure to the foetus in utero.  Further, at the time of actual childbirth, he believes that if the mother's wish for vaginal delivery conflicts with the need to safeguard the foetus' health, the foetus' interests should prevail and the mother should be subjected to civil liability and criminal prosecution if the child is injured as a result of the mother's will prevailing.[16] Robertson apparently sees foetal rights as evolving after the woman makes her decision to forgo abortion.  Thus, he believes that, up to viability, a woman has the right to exercise her autonomy in the decision not to procreate, but having "crossed over" the viability threshold, she then sacrifices her liberty and autonomy to act in a manner which might affect the foetus in a negative way.  This is because, once viable, the foetus acquires the right, not only to be born but to have its mothers actions proscribed by the State in such a way as to ensure it (the foetus) is born as healthy as possible.  Robertson apparently believes that the State then has the right to step in to protect the foetus, presumably because the State has an interest in the foetus being born healthy.

Tom Paine is one who believes that Robertson's line of thinking is detrimental to a woman's right to bodily integrity. He wrote, "Today both the law and medicine agree that coerced medical interventions on pregnant women are an abuse of medical and state authority and that while pregnant women do not always make the right decision, in America, it is the person on whom the surgery is to be performed who gets to decide. In spite of this, Utah prosecutors apparently think that a pregnant woman who exercises her constitutional and common-law right to refuse medical advice can be arrested for murder. This is not only a clear misuse of the law, it is dangerous to children and fundamentally dehumanizing to pregnant women and their families."

Posted on March 17, 2004 at 12:32 PM | Permalink


fyi, Trish, I posted this blog entry to a discussion group about Melissa Rowland at this address: www.gentlespirit.com/margins in the "Feminist Motherhood" forum. You have to register to post, of course, but I'm certain additional input from you would be appreciated! :)

Posted by: flea at Mar 17, 2004 7:52:50 PM

I am absolutely disgusted by this case and any support for a woman who put her "bodily rights" over the rights of a full term BABY's...not fetus'...right at a chance to live the life that this woman, not the baby, chose to bring about. If someone told her that her child might die if she let it play in traffic, it is her responsibilty as a mother...or even as a human...to do whatever...including sacrifising her so-called bodily rights...to get that child she bore out of harm's way. The woman had no right to continue bringing lives into the world that she continued to show no regard for. In my opinion the woman should have lost her "bodily rights"...as well as her uterus...when she punched a baby in the face for eating candy. Instead she was allowed the PRIVELAGE of bearing more children, which she promptly pumped full of cocaine and alcohol and then decided that those children didn't deserve the best chance at a life. How can anyone justify the fact that a child DIED because this monster disregarded what a doctor told her was absolutely necessary for that child's survival. This was not an abortion...this was outright homicide by neglect.

Posted by: Sarah at May 1, 2004 7:03:00 PM