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NIH VBAC Consensus Development Conference: Gift Horse or Trojan Horse?

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By Courtroom Mama

There are a lot of wonderful things to say about the recent NIH VBAC Consensus Development Conference. Hopefully it will expand access to VBAC by urging ACOG to reconsider the “immediately available” standard, and end the practice of banning VBAC rather than working to lessen the risks through physiological management of labor and other techniques. I’m happy to see that they are finally acknowledging that there is no way to reduce infant mortality to zero, and that the risks inherent in VBAC are no different from the risks of catastrophic outcome in any other delivery, making singling out of VBAC nonsensical. I applaud the panel for that.

But, as a law geek and a birth geek, I have to look a gift horse in the ass here.

When the draft statement first came out, I was a little bit troubled by the part that is now the end of page 14 and top of page 15.

Along these same lines, the 1999 ACOG guideline urged, “After thorough counseling that weighs the individual benefits and risks of VBAC, the ultimate decision to attempt this procedure or undergo a repeat caesarean delivery should be made by the woman and her physician.” Presentations at the conference suggested that this important recommended practice is not uniformly followed, but there are no strong data documenting the extent of this problem.

In my opinion, this portion of the recommendation didn’t strongly address some of the concerns raised in the prior two days about what happens to women who aren’t ideal VBAC candidates and who nevertheless don’t want to have surgery. Surely I wasn’t the only one worried…

Then I looked on Twitter. Apparently, during the final Q&A, Barbara Stratton from ICAN Baltimore had stepped up to the microphone and pressed the panel a bit. Rather than coming out and reassuring the audience that a woman cannot be operated on against her will, as Dr. Anne Lyerly and Dr. Howard Minkoff had unhesitatingly done the day before, the panelists hedged and said that it wasn’t a settled matter. As the archived feed isn’t up as of right now, I would not have believed it if I hadn’t listened to the press telebriefing, in which Susan Jenkins, an attorney with the Big Push for Midwives (and a truly formidable birth activist!) took the issue straight on.   (Rough transcript below, and it looks like they will post audio soon too so you don’t have to dial in and listen on the fussy conference line. Emphasis mine. h/t @PushforMidwives)

Kelli Marciel: I think next we will hear from Susan Jenkins with the Big Push for Midwives.

Susan Jenkins: Thank you very much for taking my question. I would like to address the one attorney who is on the panel, and I believe that is Ms. Zimmet from Georgetown University, is she present right now?

Sheila Cohen Zimmet: Yes I am.

SJ: Ms. Zimmet did the panel take into consideration any of the extensive legal and ethical literature on the issue of informed consent? Because to my understanding this morning—and to the great disappointment of many of the people in the audience—the panel did not take a position affirming that pregnant women should be considered persons with constitutional rights the same as any other adult persons and I am wondering that, even though, yes, I agree there are few if any appellate-level rulings other than In Re AC from the District of Columbia addressing this issue specifically in the context of pregnancy, that case did come out squarely in favor of informed refusal always for the mother, but there is extensive law review writing in this area. Is the panel aware of the extensive, and very much pro-informed-refusal, literature among attorneys and law professors in this area?

SZ: Well yes, we did have conversations in that area. We focused on informed consent as a factor that influenced practice and patterns in access to trial of labor; we didn’t see it as our task to resolve that issue and focus on that issue. We think we need to look at the informed consent issue and see what improvements there can be in communication between provider and patient, and tools that can be provided and developed to answer those issues, but we recognize that medico-legal issues involved in informed consent, constitutional issues and ethical issues really, are issues that are answered in a varying fashion in different states and we certainly weren’t in a position to answer them in a consensus panel.

SJ: So in spite of Dr Lyerly’s ethical presentation yesterday, the panel is unwilling to affirm the ethical necessity of recognizing that a woman has an absolute right to informed refusal of a surgical procedure that may cause harm to her?

Laurence B. McCullough: This is Larry McCullough, the ethicist on the panel.

SJ: Yes

LM: The claim that the right to refuse is absolute is a controversial claim, it’s not at all settled in the law or medical ethics.  And that controversy, which is considerable, is way beyond the scope of this group. We did however, strongly emphasize the need for an evidence-based, unbiased approach to the informed consent process to make sure women eligible for TOL would be informed of that alternative and get the information they need to make their own decisions for themselves. There is a strong emphasis on the centrality of informed consent in our conclusions.

SJ: Dr. McCullough, just one quick follow up question, if I may, on that. The conclusions that are reached in the draft, at least the draft opinion that we saw this morning, indicate that the position of the committee is that only where it is considered “medically reasonable”—whatever that means—would the woman have a right to refuse. And the definition of medically reasonable…well, there is no definition of medically reasonable.

LM: Well, actually, there is, and the concept is when the alternatives are roughly medically equivalent. What we said is that shared decision-making should be followed, where the physician refrains from making a recommendation and really helps the woman make a decision that reflects her values and preferences, which is the goal of the informed consent—

SJ: Right, and what if her values and preference is to say “no” at the end of all this?

KM: I’m sorry, this is Kelli, and we have a lot of people waiting on queue

SJ: That’s alright, they’re going to dodge the issue and that’s what I’m going to report to my readers. Thank you.


Hats off to Susan Jenkins for pushing the issue, so to speak. When I heard this, my jaw dropped.

As for the issue of the matter being treated differently state to state… After In re A.C., 573 A.2d 1235 (D.C. 1990), a tragic case in which a young woman with terminal cancer was forced to undergo an unwanted cesarean section that ultimately killed both her and her baby, there was a recognition that what had happened was wrong.  Even in the absence of an In re AC for every jurisdiction, the case got enough notoriety that there was a general consensus that something like that shouldn’t happen again. In fact, one of Jill’s recent posts features the ACOG Ethics Committee opinion that cites that case, among others, in rejecting coercive measures to override maternal decision making. It seems that Dr. McCullough is setting aside these established ACOG guidelines and saying that it’s not so clear, and Ms. Zimmet seems to be suggesting that pregnant women’s constitutional rights are a matter to be determined by each state individually.  If the recent insanity in Utah and Iowa hasn’t raised alarm bells, it should now.

I can psychically sense someone thinking: but aren’t there some situations in which maybe the mother SHOULD just have the damned surgery? So I’ll answer that right off the bat: acknowledging first that there are few, if any, women who would refuse in all circumstances, yes, there are some situations in which she probably should have surgery; however, I’m not willing to give that the force of law, because even the exalted “evidence-based” standards change, and the most rigorous studies only give you at best a probability of failure or success. Who gets to draw the line, and who says they are right?

For Laura Pemberton, an alleged 4%-6% chance of rupture was too high for a judge, even though her baby was just moments away from birth and nobody had bothered to check her progress to see that she was in good condition before they wheeled her off for a forced cesarean. For Jessie Mae Jefferson, doctors insisted she had a 99% chance of fetal death and a 50% chance of dying herself if she delivered vaginally. Maybe she was lucky, but she was right, and vaginally delivered a healthy baby in hiding. By muddying the waters of medical ethics with so-called maternal-fetal conflict, women are left at the mercy of judges who almost invariably privilege the doctor’s assessment of the risks, even when they are flat wrong, over the woman’s assessment and values.

I don’t know about you, but this unwillingness to commit to the idea that a pregnant woman has the same rights as every other adult of sound mind has got me fired up. If you follow me on Twitter, you saw that I was ready to start a protest. Now, nearly 12 hours later, I’m even more serious about it. If the fact that pregnant women are full people under the constitution is so “unsettled,” I think it’s high time we grabbed our slings, strollers, and picket signs to settle the matter!


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Reader Comments (42)

I think you're right about mobilizing. I am willing to help. Ideas about our first step?

March 11, 2010 | Unregistered CommenterJohanna T, Seattle

I also think that it is not missing the forest for the trees. There is a very underlying issue going on here that is going to be addressed by thousands of women across the country:
I am having twins and want a VBAC
I am planning a VBA3C
I am planning a VBAC after a T-incision
I am clinically obese and want a VBAC
I am having a 10lb baby and want a VBAC
I am...

In these circumstances, none of these women would fit the criteria for low transverse, healthy mom with a less than 4000 grams, no multiples, etc factors. In fact, most women have some sort of second variable, as was frequently pointed out. As I sat there, I realized that without informed refusal, women who did not fit the "i'm perfect" would be unable to refuse and that is part of why I got up, well, secondary to the fact that the OB made it sound like he was being common sense in doing all these cesareans to save that one baby,

March 11, 2010 | Unregistered CommenterShannon Mitchell

@ Deranged Housewife

Funny you should ask. During the actual showdown, Ms. Pemberton had almost no due process whatsoever in her bedside hearing. However, when she actually did get a chance to submit an affidavit in support of her decision, the court was unconvinced by the relative difference in risk (in a mansplainy sort of way, imo).

“The record includes testimony of six physicians on this subject. Five—those whose testimony has been offered by the hospital—uniformly assert the risk of uterine rupture from any vaginal delivery in these circumstances is unacceptably high and the standard of care therefore requires a caesarian. Dr. O’Bryan, for example, placed the risk at four to six percent. When the consequence is almost certain death, this is a very substantial risk; as the physician convincingly explained, if an airline told prospective passengers there was a four to six percent chance of a fatal crash, nobody would board the plane. In response, Ms. Pemberton offered the affidavit of a sixth physician, Dr. Marsden G. Wagner. Dr. Wagner placed the risk of uterine rupture slightly lower, at between two and 2.2 percent, and said the risk the baby would die if there was a rupture was 50 percent. If these are the facts, it is hardly surprising that Ms. Pemberton could find no physician willing to attend an attempted vaginal delivery. Presumably there would still be no passengers on a plane if the risk of a crash was only two percent and if, in any crash, only half the passengers would die.”

Frankly, the idea of anyone having to explain their medical decisions to a judge, even if they are totally right on the science, is loony toons because of the power imbalance that even supposedly impartial judges are swayed by. Like, we consider Marsden Wagner to be pretty authoritative, but the court poo-poos him in a footnote, grudgingly “accept[ing] his testimony (though not all his rhetoric and legal conclusions)” Nice.

March 11, 2010 | Unregistered CommenterCourtroom Mama

I found this quote by Sheila Kitzinger in Germaine Greer's Sex and Destiny (1984) and I think it is still applicable 25 years later.

"Clearly, infant and mother mortality is greater in traditional births, but in our anxiety to avoid death we may have destroyed the significance of the experience for the vast majority who live:

No one would deny that each infant and particularly every maternal death is tragedy to be prevented if ata ll possible, nor that modern obstetric care, which has developed in the hospital setting, has been at least partly responsible for the dramatic decrease in both maternal and peri-natal mortality over the past half century. But it is not necessarily perverse to question whether our present priority should be to reach minimum figures for peri-natal mortality at any price when this includes giving up things which free human beings have often felt to be more important than their own survival- such as freedom to live their own lives their own way and to make individual choices in line with their own sense of values."

March 11, 2010 | Unregistered CommenterMaria

This post spurred me to read the Laura Pemberton vs. Tallahassee Memorial court decision from 1999, and now I am nauseated.

March 11, 2010 | Unregistered CommenterKK

I don't see anything this blog post about children's rights.

You can get fired up and protest all you want, but the doctors, courts, and lawmakers are just trying to look out for the children. If you don't address the rights of children in your arguments, your arguments are going to fail. Children have rights, and to ignore them is folly.

Furthermore, I don't even know what it is you expect the NIH to do.

The common ground we all share is that no one wants unnecessary medical operations performed. Progress is being made on that front, so there is no reason to get all outraged lol.

March 11, 2010 | Unregistered CommenterDevek

Do you honestly believe for one moment that a child's mother is not concerned about his life? Or that she is unconcerned about her other children having a mother who is capable of caring for them?

When you are staring down the barrel of an ethical dilemma such as this (ie, who should assume more risk), there are no easy answers. Additionally, one must remember that there are risks for *both* mother AND baby in *both* cesarean AND vaginal birth. Neither choice is cut and dry, nor black and white.

To state that a baby who has not been born yet has more rights than a mother with other living children is what is folly.

March 11, 2010 | Unregistered CommenterMonkey Mama

The thing is that their weak recommendations just allow doctors to continue in their current status quo. "Well, we'll let you have a VBAC *IF*..." It's always IF. As long as doctors always have the "IF" card, then I can almost guarantee that they will find a way to deny women the right to informed refusal.

March 11, 2010 | Unregistered CommenterAugusta

"You can get fired up and protest all you want, but the doctors, courts, and lawmakers are just trying to look out for the children. If you don't address the rights of children in your arguments, your arguments are going to fail. Children have rights, and to ignore them is folly. "

It seems like you are opening up a whole Roe v. Wade discussion here about where a woman's rights end and a fetus' rights begin. Are you referring to a situation in which a hypothetical woman pursues VBAC when it is clearly contraindicated (transverse lie, complete placenta previa)? Because I would argue that VBAC for the average low-risk woman is not likely to harm the child, and babies are also harmed by repeat C-sections (increased NICU admissions for lung problems, physical injuries during surgery, chance of placenta accreta/percreta with increasing C-section number, causing loss of the subsequent pregnancy of premature delivery, already born children harmed if their mothers die during later C-sections). The legal system appears to view all VBACs the same, no? In that case, they are looking for dollars and not simply preventing risky endeavors.

March 11, 2010 | Unregistered CommenterKK

It's an insult to women to think that the majority of us are making healthcare decisions without putting our children first. That IS the point with VBAC. A healthy mother counts. We don't NEED the OBs advocating for our children - men and women who will have nothing to do with their upbringing or care after the 10 minutes they spend in the room to catch. I don't need an OB to make the choice of what my children eat for dinner, or what carseat I buy.

We're sending mothers home with PTSD from their birth experiences. How is that beneficial? Is that worth the slight risk saved in a repeat cesarean? What about a mother who has two older children at home? The OBs don't have to deal with any of this, and frankly, this statement shows they care very little. If I'm nothing more than a womb and the fetus is the patient, I'll be taking my care outside of the system.

March 11, 2010 | Unregistered CommenterAshley
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