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Aug032009

ACLU Files Amicus Brief in Support of Woman Hospitalized Against Will

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The ACLU and the ACLU of Florida filed the following amicus brief in support of a mother of two who was confined at 25 weeks pregnant to a hospital and forced to undergo a cesarean against her will.

 

(Via RH Reality Check)

 

HTML version of the brief:

 

 

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

 

Samantha Burton, Appellant,

 

v.

 

State of Florida, Appellee.

 

CASE NO: ID09-1958

L.T. No.: 2009 CA 1167

 

 

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES

UNION, AMERICAN CIVIL LIBERTIES UNION OF FLORIDA,

AND AMERICAN MEDICAL WOMEN’S ASSOCIATION IN

SUPPORT OF APPELLANT 

 

 

 

[Table of Contents and Table of Authorities Omitted. Full brief on the ACLU Web site.]

 

 

AMICI STATEMENT OF INTEREST

 

The American Civil Liberties Union (“ACLU”), the ACLU of Florida, and the American Medical Women’s Association (“AMWA”) (collectively Amici”), submit this brief in support of Appellant Samantha Burton’s appeal from the Leon County Court order that she be confined to a hospital and submit to medical treatment, all against her will, for the duration of her pregnancy. Each of the Amici is committed to advancing and protecting women’s rights to health, privacy, and autonomy, particularly with respect to a woman’s decisions affecting her pregnancy.

 

The ACLU and its state affiliate, the ACLU of Florida, have long been dedicated to the principles of liberty and equality embodied in the United States and Florida Constitutions and to protecting the constitutional rights of privacy and reproductive choice. AMWA, an organization of women physicians and medical students dedicated to women’s health and the advancement of women in medicine, supports the right of women to make choices, without governmental interference, when it comes to their medical care. Thus, the proper resolution of this case is a matter of substantial concern to Amici. In addition, it is respectfully submitted that Amici’s analysis of the important constitutional question raised by this appeal may assist this Court in resolving this case.

 

SUMMARY OF THE ARGUMENT

 

At stake in this case are two related components of the fundamental constitutional right of privacy guaranteed by the Florida Constitution: the right of every adult person to make an informed decision to refuse medical treatment, and the right of women to continue their pregnancies without fear of state intrusion on their bodily integrity and autonomy. In violation of these rights, in March 2009, the State succeeded in completely depriving Samantha Burton, a mother of two who was suffering pregnancy complications in her 25th week of pregnancy, of her physical liberty and medical decision-making authority for the remainder of her pregnancy.

At the State’s request, the Circuit Court, Leon County, ordered Ms. Burton to be indefinitely confined, which had her pregnancy gone to term would have been up to fifteen weeks, to Tallahassee Memorial Hospital and to submit, against her will, to any and all medical treatments, restrictions to bed rest, and other interventions, including cesarean section delivery, that in the words of the court, “the unborn child’s attending physician,” deemed necessary to “preserve the life and health of Samantha Burton’s unborn child.” (Appellant’s Ex. D, at 1-2.) The court further ordered that “Ms. Burton’s request to change hospitals is denied as such a change is not in the child’s best interest at this time.” (Id. at 3.) The court approved the State’s wholesale control over Ms. Burton’s liberty and medical care during pregnancy on the erroneous legal premise that the “ultimate welfare” of the fetus is the “controlling factor” and was sufficient to override her constitutional rights to liberty, privacy, and autonomy. (Id. at 1.) After at least three days of this state-compelled confinement and management of Ms. Burton’s pregnancy, doctors performed an emergency cesarean section on Ms. Burton and discovered that her fetus had already died in utero. Thereafter, she was released from the hospital. (Appellant’s Ex. E, at 1; Ex. F, at 1.)

As addressed fully below, first, the court erred as a matter of law by failing to give any real consideration to the liberty and privacy rights of Ms. Burton and instead applying what amounted to a “best interest of the fetus” standard. Such an approach turns on its head well-established standards protecting the right of every adult to make private decisions about their own medical care. Second, the court erred in equating the asserted interest in protecting fetal life to the State’s “parens patriae authority to ensure that children receive medical treatment which is necessary for the preservation of their life and health,” (see Appellant’s Ex. D, at 1), and in holding that the interest in fetal life justified confining Ms. Burton to a hospital bed and overriding her right to refuse medical treatment. Finally, applying the correct constitutional analysis, and looking to appropriate medical standards of care, it is evident that the State did not demonstrate the type of compelling interest necessary to justify the extraordinary use of involuntary confinement and forced medical treatment in this case.

 

STANDARD OF REVIEW

 

On this appeal, the threshold issue is whether the court below applied the correct constitutional analysis for determining whether the State carried its burden of demonstrating that absolutely depriving Appellant of her fundamental constitutional rights of privacy, medical autonomy, and liberty, was necessary to achieve a compelling state interest. Because the appropriate constitutional analysis is a question of law, review on appeal is de novo. See Armstrong v. Harris, 773 So.2d 7, 11 (Fla. 2000); see also Davis v. Bruhaspati, Inc., 917 So.2d 350, 351 (Fla. 1st DCA 2005); Wagner v. Wagner, 885 So.2d 488 (Fla. 1st DCA 2004).1

 

ARGUMENT

 

I.  The Constitutional Standard for Authorizing Forced Medical Treatment Requires the State to Prove that its Action is Narrowly Tailored to Advance a Compelling State Interest. 

 

It is firmly established that under the Florida Constitution’s expressly enumerated right of privacy, article I, section 23, “everyone has a fundamental right to the sole control of his or her person,” which includes the “integral … right to make choices pertaining to one’s health, including the right to refuse unwanted medical treatment.” In re Guardianship of Browning, 568 So.2d 4, 10 (Fla. 1990). This “inherent right to make choices about medical treatment … encompasses all medical choices.” Id.2 Thus, the right, which extends to “everyone” and “all medical choices,” of course, necessarily encompasses the right of a pregnant woman to refuse medical treatment recommended to preserve her own health or the health of her fetus.3

The Florida Supreme Court has repeatedly made clear the rigorous standard of review that courts must apply to any infringement of this right:

 

The State has a duty to assure that a person’s wishes regarding medical treatment are respected. That obligation serves to protect the rights of individuals from intrusion by the state unless the state has a compelling interest great enough to override this constitutional right. The means to carry out any such compelling state interest must be narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.

 

Id. at 13-14; see In re Dubreuil, 629 So.2d 819, 822 (Fla. 1993), reh’g denied, 629 So.2d 819 (Fla. Jan. 20, 1994) (No. 80311) (quoting same).

 

There is no “‘bright-line test’” for determining what constitutes a sufficiently compelling interest to override a patient’s refusal of medical treatment. In re Guardianship of Browning, 568 So.2d at 14 (quoting Pub. Health Trust v. Wons, 541 So.2d 96, 97 (Fla. 1989)). Rather, each case “‘demand[s] individual attention.’” In re Dubreuil, 629 So.2d at 827 (quoting Wons, 541 So.2d at 98). However, it is clear that even if a compelling interest is shown, the State must put forth “sufficient evidence” to “satisfy the heavy burden” of demonstrating the necessity of “overrid[ing] the patient’s constitutional right to refuse medical treatment.” Id. at 828.

As discussed below, the trial court wholly failed to apply this strict scrutiny standard, which places the “heavy burden” of proof squarely on the State. Rather, it improperly assumed that the State’s parens patriae authority – which permits the State, in exceptional cases, to order medical treatment for a child over a parent’s religious objections – permitted the State to confine Ms. Burton and force her to undergo medical treatment for the benefit of her fetus. See infra Part II. In so doing, the court overrode Ms. Burton’s fundamental rights without requiring the State to establish a compelling need that justified the extreme deprivation imposed.

 

II.  The State’s Interest in Protecting Fetal Life is not Equivalent to its Interest in Protecting Children and was not Sufficient to Override Appellant’s Liberty and Privacy Rights.

 

The State argued, and the trial court incorrectly found, that this case involved the State’s “parens patriae authority to ensure that children receive medical treatment which is necessary for the preservation of life and health,” and therefore applied the rule that “as between parent and child, the ultimate welfare of the child is the controlling factor.” (Appellant’s Ex. D, at 1.) But cases recognizing the parens patriae authority of the State to, in exceptional circumstances, override a parent’s refusal to allow their children to receive life-saving medical care, see., e.g., M.N. v. Southern Baptist Hosp. of Florida, 648 So.2d 769 (Fla. 1st DCA 1994) (involving parents’ refusal for religious reasons to consent to blood transfusion for minor child); ex rel. J.V. v. State, 516 So.2d 1133 (Fla. 1st DCA 1987) (same); ex rel. Ivey, 319 So.2d 53, 58 (Fla. 1st DCA 1975) (same), have no application to this case, in which the State forced a woman to be confined and undergo unwanted medical treatment for the benefit of her fetus.

Indeed, no Florida court has applied these principles to the State’s interest in potential fetal life. This is unsurprising, as the courts of this state– including the Florida Supreme Court – have time and again refused to extend the meaning of laws protecting children or persons to include fetuses. For example, the Florida Supreme Court has held that a statute criminalizing the distribution of a controlled substance to children was not intended to apply to transmission during birth. See Johnson v. Florida, 602 So.2d 1288 (Fla. 1992). And, in In re Guardianship of J.D.S., 864 So.2d 534, 538 (Fla. 5th DCA 2004),4 the Fifth District Court of Appeal cited numerous Florida cases in support of its holding that the protections of the state guardianship laws “[do] not extend to fetuses.”

Nor can such an extension be permitted in this case without creating an impermissible constitutional conflict. By equating the State’s interest in fetal health with its very different obligation to protect children, and ordering Ms. Burton to be confined and undergo unwanted invasive medical procedures for the benefit of her fetus, the trial court contravened decisions of the United States and Florida Supreme Courts.5 These decisions recognize that because a fetus is inextricably part of, and physiologically dependent on, the pregnant woman who carries it, a state interest in fetal life, even a viable fetus,6 does not ultimately “control” the privacy and autonomy rights of a pregnant woman.

Since its decision in Roe v. Wade, 410 U.S. 113 (1973), the United States Supreme Court has repeatedly protected a woman’s constitutional right to make independent medical decisions related to her pregnancy, including, ultimately, the choice whether to continue a pregnancy. See, e.g., Ayotte v. Planned Parenthood of Northern New England, 546 U.S. 320, 327- 28 (2006) (describing Roe and Casey as controlling); Stenberg v. Carhart, 530 U.S. 914, 920 (2000) (reaffirming Roe); Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992) (same). This stems from the Court’s recognition that decisions related to pregnancy involve personal considerations that are central to a woman’s dignity, autonomy, and health. As the Court has explained:

[T]he liberty of the [pregnant] woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.

Casey, 505 U.S. at 852.

These principles apply even more strongly in Florida, where state interference with the exercise of a person’s right to privacy – including decisions about reproductive health – must further a compelling state interest by the least intrusive means. The Florida Constitution contains an explicit right to individual privacy that has no parallel in the United States Constitution. Article I, section 23 of the Florida Constitution provides that “[e]very natural person has the right to be let alone and free from governmental intrusion into the person’s private life … .” Fla. Const. art.1 § 23. The Florida Supreme Court has repeatedly held that this provision provides more protection for the right of individual privacy, including the right to make decisions about reproductive health care, than does the federal Constitution. See, e.g., Beagle v. Beagle, 678 So.2d 1271, 1276 (Fla. 1996); B.B. v. State, 659 So.2d 256, 259 (Fla. 1995); In re T.W., 551 So.2d 1186, 1192, 1195 (Fla. 1989) (holding “the Florida constitution requires a ‘compelling’ state interest in all cases where the right to privacy is implicated”).

Applying these fundamental guarantees of liberty, privacy and bodily integrity, courts have held unconstitutional forced interventions on behalf of a viable fetus in medical circumstances more dire than those here. For example, an Illinois appellate court held that the prospect of state control over the medical decisions and bodily integrity of a pregnant woman could not be constitutionally tolerated and refused to force her to receive medical treatment on behalf of her fetus. In In re Fetus Brown, 689 N.E.2d 397, 399 (Ill. App. Ct. 1997), appeal denied, 698 N.E.2d 543 (Ill. 1998), a decision cited with approval by the Fifth District Court of Appeal in In re Guardianship of J.D.S., 864 So.2d at 539, Darlene Brown, who was over 34 weeks pregnant and experiencing blood-loss that was life-threatening to both herself and her fetus, refused blood transfusions for religious reasons. The court, applying virtually the same constitutional standard for refusing medical treatment as is applied in Florida, held that “balancing the mother’s right to refuse medical treatment against the State’s substantial interest in the viable fetus, we hold that the State may not override a pregnant woman’s competent decision, including refusal of recommended invasive medical procedures, to potentially save the life of the viable fetus.” In re Fetus Brown, 689 N.E.2d at 403.

Likewise, in a case involving a court-ordered cesarean section to be performed on a terminally ill woman who was “twenty-six and one-half weeks pregnant with a viable fetus,” the District of Columbia Court of Appeals reversed, holding: “We do not quite foreclose the possibility that a conflicting state interest may be so compelling that the patient’s wishes must yield, but we anticipate that such cases will be extremely rare and truly exceptional. This is not such a case.” In re A.C., 573 A.2d 1235, 1252 (D.C. Ct. App. 1990) (emphasizing that pregnant patient’s wishes “must be followed in virtually all cases, unless there are truly extraordinary or compelling reasons to override them”) (internal citations omitted).7

As these cases demonstrate, while the State may seek to advance a “substantial interest in potential fetal life throughout pregnancy,” Casey, 505 U.S. at 876, and while the weight of that interest increases after viability, id. at 870, a fetus is not, physiologically or legally, an independent person with equivalent, let alone greater, constitutional status than the pregnant woman herself. Roe, 410 U.S. at 156-59. Moreover, 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. As Justice Orfinger presciently cautioned in his concurrence in In re Guardianship of J.D.S.:

While the debate is typically framed in the context of the State’s right to interfere with a woman’s decision regarding an abortion, taking control of a woman’s body and supervising her conduct or lifestyle during pregnancy or forcing her to undergo medical treatment in order to protect the health of the fetus creates its own universe of troubling questions. Should the State have the authority to prohibit a pregnant woman from smoking cigarettes or drinking alcohol, both legal activities with recognized health risks to the unborn? Could the Legislature do so constitutionally given our supreme court’s broad interpretation of Florida’s constitutional right of privacy and the limitations placed on the State’s ability to act by Roe?

In re Guardianship of J.D.S., 864 So.2d at 540-41 (Orfinger, J. concurring and concurring specially).

 

Thus, the overwhelming weight of federal and Florida precedent required the circuit court to apply the strictest level of constitutional scrutiny by giving full weight to Ms. Burton’s fundamental rights of liberty, bodily integrity, and medical autonomy and requiring the State to carry its heavy burden of demonstrating an overwhelming interest in fetal health that justified the extreme liberty deprivation in this case. However, as is evident from the lower court’s incorrect weighing of the State interest in fetal life as equivalent to its parens patriae authority, from the outset the court erroneously presumed that Ms. Burton’s fundamental constitutional rights were inferior to the state’s interest in fetal life. (Appellant’s Ex. B, at 2.) In so doing, as discussed infra Part III, it authorized an unwarranted intrusion on her liberty, bodily integrity, and medical autonomy.

 

III.  The Liberty Deprivation was not Justified in this Case and, if Approved, will Invite State Interventions that Only Serve to Undermine Maternal and Fetal Health.

 

By essentially removing Ms. Burton’s personal and medical autonomy from the equation, the State pursued a course that was antithetical to constitutional limits and to expert recommendations for providing appropriate and effective care when a pregnant patient disagrees with medical recommendations to improve fetal health. Indeed, the medicalethical recommendations of the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA) not only vigorously discourage the approach taken in this case, they demonstrate why court-ordered interventions undermine, rather than advance, fetal health.

In the ACOG Committee Opinion, Maternal Decision Making, Ethics, and the Law, the ACOG Committee on Ethics addresses the medical, ethical, and legal “dilemmas when [pregnant] patients reject medical recommendations,” or otherwise engage in behaviors “that have the potential to cause fetal harm.” ACOG Committee Opinion No. 321 1-2 (Nov. 2005) (App. A) (“ACOG Opinion”). The Committee elaborates on six reasons why “restricting patients’ liberty … . for their actions during pregnancy that may affect their fetus is neither wise nor justifiable.” Id. at 6. 

At least three of those reasons are especially instructive in this case. First, “[c]oercive and punitive legal approaches to pregnant women who refuse medical advice fail to recognize that all competent adults are entitled to informed consent and bodily integrity.” Id. Second, “[f]allibility … is sufficiently high in obstetric decision making … that [l]evels of certainty underlying medical recommendations to pregnant women are unlikely to be adequate to justify legal coercion and the tremendous impact … that such intervention would entail.” Id. at 7. And third, coercive treatment is “potentially counterproductive in that [it is] likely to discourage prenatal care.” Id. at 8. Thus, “court-ordered interventions and other coercive measures may result in fear … and ultimately could discourage pregnant patients from seeking care.” ACOG Opinion at 8. In contrast, as ACOG advises, “[e]ncouraging prenatal care and treatment in a supportive environment will advance maternal and child health most effectively.” Id.

For these reasons, ACOG recommends:

 

In caring for pregnant women, practitioners

should recognize that in the majority of cases, the

interests of the pregnant woman and her fetus 

converge rather than diverge.

….

 

Pregnant women’s autonomous decisions

should be respected… . In the absence of

extraordinary circumstances, circumstances that, 

in fact, the Committee on Ethics cannot currently 

imagine, judicial authority should not be used to

implement treatment regimens aimed at protecting

the fetus, for such actions violate the pregnant

woman’s autonomy.

 

Id. at 9 (emphasis added). Consistent with these recommendations, Amici American Medical Women’s Association promotes the standard that a “physician shall recognize and respect the rights of all patients, female and male, regardless of reproductive status, to receive the same standard of care.” AMWA, Principles of Ethical Conduct (rev. 2000), available at http://www.amwa-doc.org/index.cfm?objectId=243A88E4-D567-0B25- (last visited July 30, 2009) (App. B) (emphasis added).5C4EBCA9757330EF

 

Likewise, the AMA Board of Trustees advises:

 

Judicial intervention is inappropriate when a

woman has made an informed refusal of a medical

treatment designed to benefit her fetus.

 

If an exceptional circumstance could be

found in which a medical treatment poses an

insignificant or no health risk to the woman,

entails a minimal invasion of her bodily integrity,

and would clearly prevent substantial and

irreversible harm to her fetus, it might be 

appropriate for a physician to seek judicial 

intervention. However, the fundamental principle

against compelled medical procedures should

control in all cases that do not present such

exceptional circumstances.

 

AMA Board of Trustees Report, Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women, 264 JAMA 2663, 2670 (Nov. 1990) (Report adopted by the House of Delegates of the AMA at the Annual Meeting, June 1990) (emphasis added) (App. C). The AMA Board of Trustees Report reaches this recommendation on many of the same grounds as discussed in the ACOG Committee Report. In addition, it emphasizes that “[c]ourts are ill-equipped to resolve conflicts concerning obstetrical interventions,” and cautions that the use of courts is likely to do more harm than good in such cases: “When a decision must be rendered almost immediately, there will be little or no time to obtain the full range of medical opinions or facts. The inability of a court to understand the full range of the relevant medical evidence may lead to error with serious and irreversible consequences.” Id. at 2665.

In contrast to these uniform recommendations, it is evident from the proceedings below that Ms. Burton’s bodily integrity, privacy, and autonomous decision-making were given no consideration, let alone respected; and that the State failed to consider the fallibility of the single medical opinion presented in this case or the reality, unfortunately demonstrated in this case, that forced medical interventions cannot guarantee the preservation of fetal life. (Appellant’s Ex. E at 1; Ex. F at 1.)

Additionally, the reported conflict with fetal health in this case – that Ms. Burton did not agree to comply fully with recommendations regarding bedrest and smoking cessation – was not “extraordinary.” To the contrary, it is hard to imagine anything more commonplace than the inability of a mother of two to remain on continuous bed rest, or the well-documented difficulty in quitting smoking. Thus, this was not the type of “extraordinary” or “exceptional” case that medical experts like ACOG and AMA, or other courts, have contemplated as potentially falling within that rarity of “justified” court intervention.

Moreover, if the decision below stands, it invites State requests for court intervention in nearly all aspects of pregnant women’s behavior and medical judgments. In turn, some women will be discouraged from coming to a hospital for pregnancy care if they know that any disagreement may lead to forced medical treatment. Such a result does not advance maternal or fetal health by any measure and is not constitutionally permissible.

 

 

CONCLUSION

 

For all of the foregoing reasons, Amici urge this Court to hold that the order below violated Ms. Burton’s constitutional right to refuse medical treatment and constituted an unauthorized intrusion into her fundamental rights of privacy, liberty, and bodily integrity.

 

 

[Certificate of Compliance, Certificate of Service and Appendix omitted. Full brief on the ACLU Web site.]

 

 

1 Although the present case is now moot, this Court can accept jurisdiction because, as the Florida Supreme Court has held in another case of forced medical treatment, “the issue is one of great public importance, is capable of repetition, and otherwise might evade review.” In re Dubreuil, 629 So.2d 819, 822 (Fla. 1993) (accepting jurisdiction and reversing decision below after patient’s right to refuse treatment had already been violated), reh’g denied, 629 So.2d 819 (Fla. Jan. 20, 1994) (No. 80311).

 

2 While the federal Constitution also protects the right to refuse medical treatment, see, e.g., Cruzan ex rel. Cruzan v. Director, 497 U.S. 261 (1990), the greater protections afforded under the Florida constitutional right to privacy control this case. See, e.g., In re T.W., 551 So.2d 1186, 1192 (Fla. 1989) (holding Florida Constitution’s express right of privacy “embraces more privacy interests, and extends more protection to the individual in those interests, than does the federal Constitution”).

 

3 Indeed, In re Guardianship of Browning, 568 So.2d at 10, and In re

Dubreuil, 629 So.2d at 822, two seminal Florida Supreme Court cases addressing the right to refuse medical treatment, repeatedly draw and quote from the Florida Supreme Court’s decision in In re T.W., 551 So.2d 1186, a case delineating the fundamental privacy rights of pregnant women.

 

4 The Fifth District Court of Appeal relied on the weight of Florida statutes and court cases, while also pointing to “persuasive … holdings from other jurisdictions which have concluded that a fetus is not a ‘person.’” In re

Guardianship of J.D.S., 864 So.2d at 538. Specifically:

 

[T]he Florida Supreme Court declined to rule that a fetus is a “person” within the meaning of the Florida Wrongful Death Act, Young v. St. Vincent’s Med. Ctr., Inc., 673 So.2d 482 (Fla.1996), and the Fourth District declined to apply a child abuse statute in a case involving a fetus, State v. Gethers, 585 So.2d 1140 (Fla. 4th DCA 1991). See also Roe v. Wade, 410 U.S. 113, 158 (1973) (“the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn”); … In re Fetus Brown, 294 Ill. App. 3d 159 (Ill. App. Ct. 1997) (holding trial court erred in appointing guardian for fetus in case involving mother’s right to refuse medical treatment versus state’s interest in viable fetus).

 

Id. at 538-39 (additional supporting citations omitted).

 

5 Indeed, although the Florida Supreme Court “has declined at this time to rule out the possibility that some case not yet before us may present a compelling interest” to require a patient to undergo forced medical treatment for the benefit of a child or other third party, see In re Dubreuil, 629 So.2d at

827, Amici are unaware of any case decided under the Florida Constitution that actually approves of such forced treatment. This case should not be first.

 

6 The United States Supreme Court has held that a “viable” fetus is one that is capable of sustained life outside the womb and has recognized that this point is different for every pregnancy: “Viability is reached when, in the judgment of the attending physician … there is a reasonable likelihood of the fetus’ sustained survival outside the woman.” Colautti v. Franklin, 439 U.S. 379, 388-89 (1979); see also Fla. Stat. § 390.0111(4) (1999)

(“‘Viability’ means that stage of fetal development when the life of the unborn child may with a reasonable degree of medical probability be continued indefinitely outside the womb.”). Although Ms. Burton’s pregnancy was at 25 weeks, right around the earliest time when a healthy fetus might be able to survive outside the womb, not all fetuses are viable at this time. And, indeed, despite the fact that she was confined to the hospital, her fetus was not able to survive even inside the womb. (Appellants Ex. E, at 1.)

 

7 For reasons discussed infra Part III, this is not an otherwise “exceptional” case, and thus is completely distinguishable from Pemberton v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 66 F. Supp.2d 1247, 1249 (N.D. Fla. 1999), in which a federal district court held that a court-ordered cesarean section did not violate the federal Constitution. In that case, the patient was “at full term and actively in labor [for more than a full day]”. Id. “[And i]t was clear that one way or the other, a baby would be born (or stillborn) very soon, certainly within hours.” Id. at 1249, 1251. Indeed, in Pemberton, the court echoed the analysis in In re A.C., cautioning: “Medicine is not an exact science… . In anything other than an extraordinary and overwhelming case, the right to decide [on the course of medical treatment] would surely rest with the mother, not with the state.” Id. at 1254. Based on the unique and exigent facts and “clear and uncontradicted evidence,” it ultimately held that Ms. Pemberton’s case was “thus markedly different” from the situation in In re A.C., and thus extraordinary. Id. However, because the federal court did not consider Ms. Pemberton’s right to refuse medical treatment under the Florida Constitution and because the facts of Ms. Burton’s case do not even begin to approach the facts in Pemberton, that decision does not support, let alone require, a similar determination in this case.

 

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Reader Comments (5)

Wow, I didn't know fetuses could even *have* attending physicians. That's a pretty cool trick, considering they've not even been born yet. /sarcasm

Yet another example of the trampling of women's rights in the name of her unborn child. Absolutely terrifying.

August 4, 2009 | Unregistered CommenterNoble Savage

Oh, I'm totally ready to be a lawyer. Before reading this I was coming up with my own arguments and they were the same! Screw exams: put me in the courtroom now! ;)

Seriously, though, I am still just flabbergasted. Absolutely gobsmacked.

August 6, 2009 | Unregistered CommenterTara

Ugh. Head exploding.

I want to do a one month internship with ACLU's Reproductive Freedom Project, which was involved in this case and the one of the woman living with HIV who was sentenced to jail to protect her fetus.

August 6, 2009 | Unregistered CommenterMomTFH

I'm all for protecting the lives of the unborn. I believe babies are God's greatest gift to us. I also believe that, as the mother of my unborn child, I should be able to make medical decisions as to what is right for my baby. I'm only 13 weeks, but I'm head-over-heels in love with this child and would (happily) kill anyone who dared threaten my child's safety. Some doctors are complete imbeciles. I'm so glad I have a midwife instead of an OB.

October 5, 2009 | Unregistered CommenterLacyKay

There should be a boycott of this doctor. Perhaps people should write the hospital and encourage them not to renew her contract. Let us vote with our dollars. Money talks!

Jana M. Bures-Forsthoefel, M.D.
Gynecology & Obstetric Associates
1405 Centerville Rd., #4200
Tallahassee, FL 32308
850-877-3549
Fax: 850-671-2971

Tallahassee Memorial Hospital
1300 Miccosukee Road
Tallahassee, FL 32308
(850) 431-1155

January 26, 2010 | Unregistered CommenterConcerned Woman
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