By LISA BELKIN
January 12, 2010, 12:50 pm
Arguments are under way today in the First District Court of Appeals in Tallahassee, Fla., in the case of Samantha Burton, who was confined to her bed by a judge earlier this year because she was at risk for a miscarriage.
Burton was in her 25th week of pregnancy in March 2009 when she started showing signs of miscarrying. Her doctor advised her to go on bed rest, possibly for as long as 15 weeks, but she told him that she had two toddlers to care for and a job to keep. She planned on getting a second opinion, but the doctor alerted the state, which then asked the Circuit Court of Leon County to step in.
She was ordered to stay in bed at Tallahassee Memorial Hospital and to undergo “any and all medical treatments” her doctor, acting in the interests of the fetus, decided were necessary. Burton asked to switch hospitals and the request was denied by the court, which said “such a change is not in the child’s best interest at this time.” After three days of hospitalization, she had to undergo an emergency C-section and the fetus was found dead.
Burton’s pro bono attorney, David H. Abrams, with a lot of help from the American Civil Liberties Union took the case to a higher court, charging that a dangerous precedent had been set. In a brief filed in the case, A.C.L.U. lawyers argue that the original decision unlawfully expanded the court’s right “to order medical treatment for a child over a parent’s” objections and applied it to an unborn fetus. “To ignore this fundamental constitutional distinction between the state interest in protecting fetal life and its interest in the protecting the lives and health of people is to risk virtually unfettered intrusion into the lives of pregnant women.”
The lower court based its decision on the fact that medical intervention is justified in “extraordinary” circumstances. The A.C.L.U. responded that the circumstances Burton found herself in were very ordinary. “It is hard to imagine anything more commonplace than the inability of a mother of two to remain on continuous bed rest,” the brief says, “or the well-documented difficulty in quitting smoking,” which Burton was also ordered to do.
Where then, to draw the line? If a court can confine a pregnant woman to a hospital because she refuses (or is unable) to stay in bed and quit smoking, what about the women who doesn’t eat healthfully? Or who drives above the speed limit? Dahlia Ward, state strategist for the A.C.L.U.’s Reproductive Freedom Project, wrote the following in the Daily Kos a few months ago, when the case was first reported:
Don’t get me wrong — of course I want pregnant women to follow their doctor’s advice. But I do not think that pregnant women should be confined against their will if they are unwilling or unable to do so. If we allow the government to confine a pregnant woman for not following orders to remain in bed, what’s next? Will we forcibly hospitalize pregnant women for having a glass of wine with dinner? Or eating too much fast food? What if they don’t take their prenatal vitamins? Or miss their doctor’s appointments? What if a pregnant woman refuses a Cesarean section? While we each may have strong opinions about such behaviors, our government cannot interfere in a woman’s personal private medical decisions. Allowing the government to make medical decisions for pregnant women means that literally every decision and every activity a pregnant woman engages in could be regulated by the state. And certainly the possibility of state-mandated hospitalization for those who have engaged in “unhealthy behaviors” would deter some women from seeking any prenatal care for fear of being punished. In that situation, everybody loses.