The Washington PostDemocracy Dies in Darkness

If courts recognize fetal personhood, women’s rights are curtailed

If a fetus has more rights than a pregnant person, the outcome will be forced medical interventions.

Abortion rights demonstrators make signs in front of the Supreme Court on May 3. (Afp Contributor#afp/AFP/Getty Images)
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It is clear that the antiabortion movement’s goal of overturning Roe v. Wade is on the verge of succeeding. But it’s not just about returning abortion regulation to the states. As soon as the court handed down the decision in Roe in 1973, antiabortion legislators tried to include a Human Life Amendment in the Constitution that said life begins at conception. If the court overturns Roe this summer, as a leaked draft opinion indicates, antiabortion legislators probably will again try to solidify fetal rights at the federal level.

History shows that such laws would have dangerous, even deadly, consequences. If fetal personhood is recognized, pregnant women and other pregnant people will lose control over decisions related to their pregnancies and be forced to accept medical interventions against their will.

Claims of fetal personhood — the notion that the fetus has rights akin to a child already born — originated in the mid-19th century, when Boston physician Horatio Storer led the first movement to criminalize abortion at the state level. Storer and his supporters referred to fetuses as children, and cast abortion as murder and women who underwent the procedure as butchers in need of strong patriarchal guidance. Around 1900, the next generation of abortion opponents — White, male and Catholic — began to invoke fetuses’ right to life. In the early 1960s, they explicitly connected this claim to the Declaration of Independence. Just a few years later, as they rallied to halt the liberalization of abortion laws in states across the nation, antiabortion activists expanded their movement by reaching out to evangelical Christians to help them secure citizenship for the “unborn.”

Also in the 1960s, state interventions in medicine accelerated in the name of protecting fetuses. In 1964, a court in New Jersey and another in the District of Columbia ordered pregnant Jehovah’s Witnesses carrying viable fetuses to undergo blood transfusions that they refused for religious reasons. Doctors anticipated the New Jersey woman would need a transfusion and obtained a court order in preparation. The pregnant woman in Washington needed multiple transfusions immediately.

One case from 1986 makes the violence embedded within the claim of fetal personhood and court-ordered medical treatment clear. Nineteen years old and pregnant for the first time, Ayesha Madyun entered D.C. General Hospital one day in the summer of 1986 with her husband, Mustafaa. Her water had broken two days earlier, but without health insurance, Ayesha lay in bed at home until substantial contractions began.

At 11 that morning, Ayesha was seven centimeters dilated and vocal in her desire to give birth vaginally. She showed no sign of infection, and her fetus demonstrated no signs of distress. Nine hours later, her labor had stalled. Mustafaa Madyun believed this was because medical staff confined his wife to bed in a prone position, refusing to allow her to walk or even sit up and kept her attached her to a fetal heart rate monitor.

Chief obstetrics and gynecology resident John Cummings started his shift that evening and became responsible for Madyun’s care. Alarmed to learn that her water had broken 65 hours earlier and her temperature was 99 degrees (possibly indicating impending infection), Cummings worried about fetal sepsis and urged her to consent to a Caesarean section. She refused. Without a clear indication that her fetus was at risk, she preferred to continue to labor without intervention.

Insistent that Madyun undergo a Caesarean immediately but unable to persuade her to do so, Cummings and the hospital turned to the courts. The D.C. Superior Court judge on duty that night, Richard A. Levie, rushed to the hospital to hold an emergency hearing. The lawyer assigned to represent the Madyuns had had less than 30 minutes to interview her clients and no time to consult Ayesha Madyun’s medical records before the hearing began at midnight. The court proceedings took place outside of her room, excluding her from participating.

At 1:05 a.m., Levie ordered Ayesha Madyun to undergo an immediate Caesarean section. “It is one thing for an adult to gamble with nature regarding his or her own life; it is quite another when the gamble involves the life or death of an unborn infant,” he declared. Two appellate judges upheld the order via phone an hour later. At 3:30 a.m. Madyun delivered a healthy, six-and-a-half-pound baby, Ishaan, via Caesarean section. She likened the surgery to being raped.

Madyun’s case was not the first of its kind and, like previous ones, it too received minimal public attention. Dozens of American women were compelled to undergo court ordered Caesarean sections at the end of the 20th century. (The practice occasionally still occurs today, too.) An article in the New England Journal of Medicine published in May 1987 identified 21 forced obstetric interventions between 1982 and 1987, 15 of which were Caesarean sections. Physicians and hospitals won 18 of the 21 claims. Not surprisingly, 81 percent of women involved in these struggles were women of color. Twenty-four percent were non-English speakers.

In many forced Caesarean cases, obstetricians, hospital administrators or social workers gained custody of the fetus — while still inside its mother — and used their new authority to compel pregnant women to undergo surgery on behalf of their ward. The court orders expired immediately after birth, at which time mothers gained custody of their newborns.

In the wake of Madyun’s surgery, the American College of Obstetricians and Gynecologists (ACOG) Ethics Committee grew concerned about court-ordered obstetric interventions. It drafted a position paper on maternal-fetal conflict that encouraged doctors to respect patients’ autonomy and avoid bringing disputes between doctors and patients to the courts.

It wasn’t long before another dramatic case sparked headlines around the country and showed the deadly consequences of forced Caesareans. But rather than pit doctor against patient, this time doctors and the ACOG defended pregnant women’s right to refuse treatment.

After surviving two harrowing bouts of cancer, 27-year old Angela Carder had recently married and she and her husband, Rick, were expecting their first child in September 1987. Carder’s cancer was gone, so was her left leg and part of her pelvis, but after six years of uncertainty, the couple finally felt confident in their future. In May, her breathing became labored and her left shoulder began to hurt. Her doctors suspected fluid on her lungs or bronchitis, both treatable ailments. But Carder knew otherwise. Twenty-six weeks pregnant, she underwent tests at George Washington University Medical Center. Two days later, a CT scan confirmed Carder’s intuition: A cancerous tumor covered 80 percent of her right lung.

Carder’s condition deteriorated rapidly. When hospital administrators learned that she was days from death and her family had refused a post-mortem Caesarean section, they contacted their attorney. Aware of Madyun’s forced Caesarean, the hospital attorney worried that the institution had an obligation to save the fetus before Carder died. He called for an emergency hearing.

Eight hours later, over the objections of Carder, her family and her physicians, Judge Emmet Sullivan ordered her to undergo surgery immediately. Carder’s doctor refused to perform the surgery without her consent; the hospital scrambled to find a surgeon willing to cut. Born at 26 and a half weeks gestation with severely underdeveloped lungs, Lindsay Marie Carder lived just two hours. Angie Carder died two days later.

In cases like Carder’s, legal experts weighed pregnant women’s right to reproductive autonomy against a fetus’s right to life — a right no fetus actually legally holds — and judges ruled in favor of the fetus. Sometimes lawyers for hospitals and judges who mandated surgery cited Roe, claiming the landmark decision’s emphasis on viability supported surgical intervention to “rescue” the fetus from its mother: If Roe recognized state interest in the viable fetus, they argued, then courts should insist pregnant women accept medical advice intended to protect their pregnancies.

Angie Carder’s parents successfully appealed the court order for her Caesarean with the assistance of Lynn Paltrow and the American Civil Liberties Union. In Re AC (1990) allowed family members of incapacitated patients to make medical decisions on their behalf and supported a patient’s right “to accept or refuse medical treatment.” It significantly reduced the practice of court-ordered Caesareans, but it won’t be able to hold off efforts to force pregnant women to accept medical interventions, including blood transfusions and Caesarean sections, if fetal personhood becomes a legal reality.

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