From Center for Gender and Sexuality Law Sabbatical Visiting Scholar Michele Goodwin, originally published in Slate on January 31st:
In Texas, hospital officials refused for over two months to remove 33-year-old Marlise Muñoz, who was declared brain dead, from life support because of her pregnancy. A court ruling on Friday ordered John Peter Smith Hospital to take Munoz off life support in accordance with the family’s wishes, and her body was disconnected from machines on Sunday, Jan. 26.
The tragedy of Muñoz’s case is that it fits a terrible pattern of state interventions in women’s pregnancies.
In July 2013, Alicia Beltran was arrested, shackled and confined by court order to a drug treatment center for 78 days after she refused a doctor’s orders to take an opiate blocker. Beltran had confided to medical staff at a prenatal checkup that she had battled addiction to opiates in the past, but claimed she had overcome drug dependency and had recently taken a single Vicodin tablet before becoming aware of her pregnancy.
Christine Taylor was arrested in 2010 for falling down a set of stairs in her Iowa home. Hospital staff reported Taylor to police after interpreting the fall to fit within the state statute criminalizing attempted feticide.
Melissa Rowland’s reluctance to submit to an immediate cesarean section prompted medical personnel in Utah to request her arrest. She was subsequently charged with murder for the stillbirth of one of her fetuses.
In Florida, a state court authorized Samantha Burton’s involuntary confinement because she refused bedrest against her physician’s recommendation. Several days after her hospital incarceration, she suffered a miscarriage.
As these examples illustrate, nurses and doctors in these cases often act as interpreters of state law, although most lack any legal training. Increasingly, state statutes are the primary means by which legal norms affecting low-income pregnant women’s autonomy, privacy and liberty are introduced and shaped. Arrests, forced bedrest, compelled cesarean operations, and civil incarcerations imposed against pregnant women in Florida, Iowa, Indiana, Mississippi, South Carolina, Utah, Wisconsin, New Mexico, Alabama, and Texas scratch the surface of a broad attack on the reproductive liberty of pregnant women.
A range of laws, including feticide statutes enacted in 38 states, personhood legislation designating the unborn as persons for purposes of criminal prosecutions, fetal endangerment regulations, and laws that require pregnant women to be kept on life support for fetal benefit place pregnant women in opposition not only to their fetuses, but also to their doctors.
These laws fit a pattern of politically motivated legislation that misuses pregnant women’s medical crises as opportunities to legislate about reproduction. This type of legislation conflicts with pregnant women’s fundamental constitutional interests, including autonomy, liberty and privacy. State legislation forcing a pregnant woman to carry a fetus to term directly conflicts with the constitutional precedent established in Roe v. Wade and interferes with a fundamental constitutional principle that guarantees each individual liberty.
More frequently, hospitals and doctors are called upon to serve as interpreters of state law, as in Muñoz’s case, where hospital officials believed they were required to keep the pregnant woman on life support throughout the remainder of her pregnancy or until the fetus could function on its own, which would have been several months. Instead of preparing to remove Muñoz from life support as requested by her husband and her parents, hospital officials refused, citing a Texas law that prohibits healthcare providers from ending life support to pregnant patients.
Texas is one of more than two dozen states prohibiting removing life support from a pregnant woman. The Texas law is among the strictest in the nation. Other states, including Texas, Kentucky, South Carolina, Utah, and Wisconsin, “automatically invalidate a woman’s advance directive if she is pregnant.” A study published by the Center for Women Policy Studies explains that these laws “are the most restrictive of pregnancy exclusion” legislation, because regardless of fetal viability or the length of pregnancy, the laws require that a pregnant woman must “remain on life sustaining treatment until she gives birth.”
Muñoz’s case is not unfamiliar to legal scholars. Years before, Angela Carder, a pregnant cancer patient in Washington, DC was refused chemotherapy due to her pregnancy. Doctors in that case sought a court order to deny the urgently needed medical treatment, because Carder was pregnant and physicians feared the death of the fetus. In that case, a federal judge permitted doctors to perform a forced cesarean delivery. The fetus died two hours later, and Carder died two days later.
District Court Judge R. H. Wallace Jr.’s order to pronounce Marlise Muñoz dead is a symbolic victory for her family. As long as fetal protection laws exist, medical personnel will inevitably make mistakes causing pregnant women and their families significant pain and anxiety.