The recent D.C. Court of Appeals decision permitting a judge to compel a Cesarean section delivery of a 26-week fetus against the wishes of the pregnant woman and her husband is a legal, a moral and a practical disaster. It violates the principles of personal bodily autonomy to which women as well as men are entitled, and it will prove counterproductive to the goal of fostering the birth of healthy children.
Just last month this newspaper gave front-page coverage to a new study confirming what has been shown many times before: doctors are still performing unnecessary Cesarean sections. Most women agree to these procedures when recommended, bowing to the "expert" opinion of their physicians even if they are well versed in the statistics of the frequency with which these operations are unnecessarily performed. If a woman does not agree, however, it is demeaning and immoral to compel it. There is, after all, a significant probability that the doctor's assessment is wrong. According to the New England Journal of Medicine, in three of the first five cases in which court-compelled Cesareans were sought, the women delivered vaginally without incident.
What are we prepared to order next in the name of fetal health? Shall we arrest all pregnant women who smoke cigarettes? Drink liquor? Drink coffee? Shall we order hospital confinement, as has already been done at least twice, when a woman has been given medical advice and chooses not to follow it? Shall we shackle her to her hospital bed? Shall we compel a woman to submit to surgery to correct fetal defects? Shall the police hold her down while she is injected with anesthesia?
A woman's right to determine her own medical care with informed consent is not lost by her pregnancy. As long as the fetus is within her, medical treatment cannot be provided to that fetus without affecting the woman's health. No one -- not a relative, a doctor or a judge -- should have the legal authority to balance the possible harm to her against possible benefit to the fetus and compel a medical procedure she does not want.
Pregnant women are not vessels, mere conduits for the propagation of the species. They are people like the rest of us, often faced with agonizing decisions, like the decisions that close blood relatives are sometimes called upon to make when a sibling, a child or a parent needs a kidney or bone marrow transplant. Our civilization does not compel donation of that kidney, even if death will otherwise result. These are personal matters; they are not the business of the state.
The American College of Obstetricians and Gynecologists opposes court-ordered treatment of pregnant women. An editorial earlier this year in the New England Journal of Medicine, commenting on a study that showed widespread use of court orders to compel obstetrical treatment, also strongly opposed such use of the judicial system. It aptly stated, "The best chance we have to protect fetuses is through enhancing the status of all women by fostering reasonable pay for the work they do, providing equal employment opportunities and adequate day care, providing a reasonable social safety net, and ensuring all pregnant women access to high-quality prenatal services."
And perhaps most obviously, the editorial pointed out that many women will avoid prenatal care entirely if failure to follow medical advice can result in criminal charges, involuntary hospital confinement or forced surgical procedures. In Detroit in 1982, a judge ordered that a woman admit herself to a hospital on a specific date and submit to whatever treatment the doctors found appropriate, including a Cesarean. The judge further ordered that the police pick her up and take her there if she did not go voluntarily. She went into hiding instead, obviously forgoing any further prenatal care.
In this city, where the infant mortality rate is a disgrace and a tragedy, promoting optimal prenatal care must be a paramount public policy. It is therefore especially shocking that the D.C. corporation counsel intervened in this case and asked the court to compel the Cesarean delivery. Does the District of Columbia really want fewer of its citizens to seek prenatal care? That will be the result, and understandably so, if the D.C. Court of Appeals does not grant a rehearing in this case and reverse its decision. In the haste of the initial hearing, the corporation counsel was wrong. That office, under Mayor Barry's direction if necessary, should change its position and support the petition to rehear the case.
Until this decision is reversed, any pregnant woman who seeks obstetrical care from any doctor or at any hospital in this city has given up control over the course of her medical treatment. If it were my pregnancy, I'd deliver in Maryland. The writer is an assistant professor of law at American University.