Cases in New York and Virginia show the troubling effects of the law putting the interests of the fetus above the interests of the pregnant person.

Cases in New York and Virginia show the troubling effects of the law putting the interests of the fetus above the interests of the pregnant person.

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Michelle Mitchell was in active labor in late June 2010 when she claims that she and her certified midwife showed up to deliver her baby at a hospital in Augusta County, Virginia.

Throughout her pregnancy, Mitchell had prepared for a birth free from unnecessary medical intervention. But like an alarming number of patients nationwide, Mitchell says her reluctance to consent to a cesarean section was ultimately ignored by doctors and hospital staff, who instead coerced her into surgery.

Mitchell sued, claiming the surgery was an assault and battery. Her trial, which is scheduled to begin in Augusta County Circuit Court Wednesday, reflects a broader trend of patients across the country who say they, too, have been pressured by doctors into c-section deliveries. And thanks to a recent New York trial court ruling, doctors in some areas may even be able to legally override consent with impunity when it comes to determining patient delivery methods.

According to court documents, Mitchell claims that once she was admitted to the hospital, Dr. Mark Brooks, who is a defendant in the lawsuit, demanded she have a c-section based on an ultrasound image performed a week earlier by Mitchell’s previous doctor and concerns over the baby’s size. Mitchell says that her previous doctor had recommended an induction of labor or c-section, but gave her no indication that vaginal birth was medically not an option or that a c-section was required.

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Mitchell says that she signed a document refusing consent for the c-section, and that over the next four hours, Dr. Brooks and other employees of the hospital threatened her in various ways, including calling Child Protective Services to take her expected child away should she fail to consent. According to the complaint, after hours of this treatment, Mitchell relented.

In addition to the trauma of feeling abused and coerced by her medical providers, Mitchell reports the surgery left her with physical injuries as well. According to the complaint, during her c-section Brooks also operated on Mitchell’s ovary; Brooks has, she claims, refused to explain what was done to that ovary or why. The result has, Mitchell says, left her with scars, numbness, and a complete loss of feeling on the right side of her abdomen.

Brooks generally denies Mitchell’s allegations. Furthermore, his attorneys have not really defended his treatment of Mitchell and her c-section as much as they have advanced claims that Mitchell can’t prove her case. They argue in court documents that Mitchell changed her mind after executing the signed refusal and consented to the surgery. Furthermore, they say, Brooks did not threaten her, but instead simply laid out all the available treatment options and paths.

As seen in cases like Mitchell’s, as the number of births via c-section has grown in this country, the question of patient autonomy has become increasingly important.

Hospitals charge about twice as much for a c-section as a vaginal birth, but it is not clear that profit motive is behind the increase in surgeries. Worries about medical malpractice claims do drive this increased number to an extent, but as National Advocates for Pregnant Women’s Farah Diaz-Tello noted in a previous interview with Rewire, there is no legal or ethical authority that supports addressing malpractice concerns by forcibly performing unwanted c-sections.

The medical community supports Diaz-Tello’s conclusion. The American Congress of Obstetricians and Gynecologists Committee on Ethics “condemns the use of coercion on a pregnant woman, as this threatens the physician-patient relationship and violates the intent of the informed consent process.” Most recently, the committee issued new, relaxed guidelines for attempting a vaginal birth after previous cesarean deliveries, also known as a VBAC. Those guidelines emphasize the importance of respecting patient decision making, which is beneficial to maternal, fetal, and child health, and note that a VBAC avoids major abdominal surgery, lowers a woman’s risk of hemorrhage and infection, and can shorten postpartum recovery time.

The committee also states that in cases where a doctor is recommending surgical delivery and a patient refuses consent, less intervention is better. According to the committee, when “faced with a continuing disagreement with a pregnant woman, a physician should turn to an institutional ethics committee. Resorting to the legal system [for doctors] is almost never justified.”

So long as a patient gives their informed consent to the c-section, the law should reasonably shield the doctor from any claims arising due to surgery complications. That is the purpose of informed consent—to protect patients from unwanted medical procedures and to protect providers from claims that patients did not understand the risks associated with a procedure.

Yet stories like Mitchell’s persist. Oftentimes, as in the case of Jennifer Goodall in Florida, the pressure comes from doctors who do not want to facilitate a patient undergoing a VBAC. Goodall had been told by doctors and hospital administrators that vaginal birth was too risky and should she not consent to a c-section, they would call Child Protective Services on her for endangering her baby.

Or, more recently, Rinat Dray, a mother of three who claims staff at Staten Island University Hospital pressured her to consent to another c-section despite her express wishes to have a VBAC. Dray has also filed a lawsuit against her providers. The accounts are unsettlingly familiar to Mitchell’s.

According to the allegations in Dray’s complaint, after several hours of labor, the attending physician told Dray that he would not examine her unless she agreed to have surgery. When she refused the surgery, the staff then consulted with a hospital attorney, who authorized the doctors to overrule Dray’s refusal to have a c-section. The complaint states that hospital staff made the decision to ignore Dray’s express wishes regarding her care without consultation with the facility’s bioethics department and without engaging the hospital’s patient advocate. According to records in the case, the surgery was approved by the hospital’s legal department over Dray’s explicit objection. A physician noted in her medical records, “The woman has decisional capacity. I have decided to override her refusal to have a c-section.”

During the process of Dray’s c-section doctors perforated her bladder, an injury that continues to cause Dray medical complications and forms the basis of her complaint against the hospital.

Dray’s case is still active. However, a recent trial court ruling regarding it suggests that part of the struggle is a result of anti-choice fetal personhood ideology, and the threat that ideology causes to medical care.

In a ruling on a series of requests to either dismiss or narrow Dray’s case, the trial court ruled that even though a fetus is not recognized as a person until after a live birth under New York law, the state has an interest in protecting viable fetal life, which it advances by outlawing self-abortion and abortions after the 24th week of pregnancy. That state interest, the trial court reasoned, is enough “to override a mother’s objection to medical treatment at least where there is a viable full term fetus and the intervention itself presents no serious risk to the mother.”

In other words, because the State of New York has a certain interest in protecting a viable fetus, doctors in the state can, for now, override pregnant patient consent with impunity. The New York court’s interim order in the Dray case effectively makes doctors agents of the state capable of enforcing the “rights” of a fetus over the rights of their own patient.

“In my client’s case the court … assumed having an interest meant that the doctors get to do what they want based on the fact that the state might have an interest without allowing those interests to be evaluated,” explained Dray’s attorney Michael Bast in an interview with Rewire.

“The doctors are acting as prosecutor, judge, and jury,” Bast continued. “The doctors get to decide if the baby is at risk, how much at risk, is that risk more or less than the risk to the mother, and then make that moral decision—and just go carry out the remedy they deem appropriate.”

With Dray’s case still active and a ruling on the merits of her claims outstanding, there is a chance New York courts will correct the error of this recent decision. Earlier in October, the highest court of appeals in the state ruled a Long Island woman should not have been convicted of second-degree manslaughter for the death of her 6-day-old baby from in-utero injuries sustained in a car accident she caused. There, the court ruled that it was clear the New York legislature did not intend to hold pregnant women criminally responsible for reckless conduct “with respect to themselves and their unborn fetuses.” The New York court made it clear that unless the law specifically states otherwise, prosecuting pregnant women, or even threatening social service intervention and the quasi-criminal family law system, is wrong.

But it is precisely the idea that women like Mitchell, Goodall, and Dray are behaving recklessly by refusing surgical birth that has led doctors in each of these cases to leverage the power of the state and its resources against their own patient, in opposition to medical standards. Patients who are completely competent to consent to medical care have that consent overridden simply because they are pregnant.

If that is not an expression of the danger of the fetal-rights movement to patient autonomy, I don’t know what is.