Posted by: Ophelia | September 5, 2008

And now you know the rest of the story

Inspired by this open letter to Sarah Palin in regards to how her right to delay her delivery until the time and place she deemed appropriate is born of the same rights that allow abortion, I sought out one of the stories cited therein.

When Laura Pemberton chose to give birth at home in Florida, a Sheriff came to her house. Doctors believed that she was posing a risk to the life of her unborn child by having a vaginal birth after having had a previous c-section and were in the process of getting a court order to force her to have a c-section. The sheriff took her into custody during active labor, strapped her legs together and forced her to go to a hospital where an emergency hearing was taking place to determine the rights of her fetus. She was “allowed” to represent herself. A lawyer was appointed for the fetus. This woman, who vehemently opposes abortion, nevertheless believed in her right to evaluate medical risks and benefits to herself and her unborn child. She was forced to have the unnecessary surgery and when she later sued for violations of her civil rights, was told fetal rights outweighed hers.

The actual decision is here(it’s a pdf). I’d like to pull out some choice portions for you, lest you question the veracity of this summary.

The hospital set in motion a procedure devised several years earlier (and used once previously) to deal with patients who refuse to consent to medically necessary treatment…Mr. Buchanan contacted Second Circuit Chief Judge Phillip J. Padovano, advised him of the situation and of Mr. Buchanan’s intent to file a petition on behalf of the State of Florida seeking a court order requiring Ms. Pemberton to submit to a caesarean section, and requested a hearing.

Judge Padovano ordered Ms. Pemberton returned to the hospital. Mr. Meggs and a law enforcement officer went to Ms. Pemberton’s home and advised her she had been ordered to return to the hospital. She returned to the hospital by ambulance against her will.

Judge Padovano then continued the hearing in Ms. Pemberton’s room at the hospital. Both she and Mr. Pemberton were allowed to express their views. The judge ordered that a caesarean section be performed.

Whatever the scope of Ms. Pemberton’s personal constitutional rights in this situation, they clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child.

On why Roe is not applicable:

Bearing an unwanted child is surely a greater intrusion on the mother’s constitutional interests than undergoing a caesarean section to deliver a child that the mother affirmatively desires to deliver.

On the risk the doctor’s feared:

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 cesarean. Dr. O’Bryan, for example, placed the risk at four to six percent.

The court then goes on about how dangerous a home birth would have been while neglecting the fact that a vaginal birth in the hospital was not ever offered, only cesarean section–which would explain why she was prepared to complete her labor at home.

They seem to be making the imminence of the birth the issue here, but their logic is the same as the logic of the courts that have jailed women for drug abuse while pregnant. Where is the line once you’re outside of the window of abortion? I hate to go slippery slope but these are questions that must be asked of legislation. The chance of car accidents is a tangible threat, so can we also ban mothers of a certain gestation to hoof it or take the bus–you know, to protect them? What about the various herbs and medications that just don’t go along with pregnancy very well–do we ban the sale of these dangerous things to visibly pregnant women? Should women be forced to have hospital births? After all, there’s always some amount of risk even in a low risk pregnancy. As of now women are able to have home births or attend birthing centers or have midwives, but again–there’s always risk. At what point does this risk become acceptable, and at what point are we comfortable with a judge literally deciding birthing options? What if the Texan governor decided it was in Palin’s best interest that she be forcibly removed to a hospital where her risk of infection, fetal distress, and fetal death would be much lower? Women deserve choice. Choice for abortion, choice for birth, choice for contraception, choice to weigh the risks and benefits and make a decision that isn’t based on medical practicioner’s insurance and liability.


  1. As a mom who chose to delay going into the hospital until easily 36 hours into my (46 hour) labor, this stuff scares the crap out of me.

    I did a post over at the CA NOW blog about woman-centered birth vs. doctor-centered birth:

  2. It is very surreal. Can you imagine a judge deciding when you have to give birth? Or better yet, defending yourself in between contractions? It’s horrifying.

  3. The hospital birth vs. home birth issue is incredibly distorted and messed up in the US due to the fears of the medical industry that they’ll lose some easy money if women choose home birth. Some of the studies that have been done are available here:
    Generally speaking home births are as safe or safer than hospital births because so many hospital births involve unnecessary interventions that endanger the mother and baby. It is quicker and more convenient for a Dr to perform a C-section, and they get more money from your insurance company. Meanwhile, we have one of the highest infant moratality rates among industrial nations, and there are a number of third world countries with lower rates than we have! All the industrial nations with the lowest infant mortality rates have very high numbers of home births, and generally encourage home birth as a cost-reducing measure to ease the load on state-sponored medical insurance.
    So don’t ever forget; when you’re dealing with the medical industry in the US, it is first and foremost an industry and exists to make money. Your health and safety are secondary concerns. It’s capitalism, baby – you gotta love it!

  4. The risk of uterine rupture in a VBAC (vaginal birth after cesarean) is less than 1% in most studies, and it is not a life threatening event for the mother or baby if she is being monitored. There was study in the current issue of the American Journal of Obstetrics and Gynecology strongly supporting VBAC safety, and said successful VBACS are safer than scheduled repeat c sections. Treating women who want to attempt a VBAC as criminals is horrifying to me. She shouldn’t have had to go to such extremes to deliver in the manner that nor only she wished, but is supported by evidence based medicine.

  5. RE: MomTFH

    “The risk of uterine rupture in a VBAC (vaginal birth after cesarean) is less than 1% in most studies, and it is not a life threatening event for the mother or baby if she is being monitored.”

    As someone who is completely PRO VBAC and as someone who has suffered a uterine rupture that resulted in the stillbirth of my son, I do need to disagree with the second part of that statement. I am on an worldwide email list for women who have had uterine ruptures. There are hundreds of women on the list whose ruptures happened while being monitored–and of those women, most of their babies were either stillborn or died shortly after birth. Too many doctors and nurses are unfamiliar with the signs of a rupture and often don’t catch the signs of fetal distress in time, even if they perform an emergency c-section.

    The problem is not with VBACs themselves. The problem is with doctors who use labor inducing/enhancing drugs with VBACs, doctors and nurses who are unfamiliar with ruptures and their signs, and of course the fact that too many primary C-sections are performed in the first place.

  6. I thought _In re A.C._ (the final, and posthumous, ruling on Angela Carder’s case) ruled that a pregnant woman has the right to make medical decisions for herself and her fetus?

    Oh, well. I guess now it IS legal to handcuff a woman to a bed and force her to give birth.

  7. I hope you don’t mind but I added a page on Wikipedia to this case based on your post & included a link to your post. Link included as my website.

    Let me know if you’d prefer for me to remove the link to this blog post.

  8. I don’t mind but I’m not sure what the post adds to the discussion–I’m by no means a legal scholar, and you can feel free to use the quotes since you already have the original source up. Maybe if it was listed as an examination or criticism of the ruling?

  9. Having articles about the decision reinforces that the decision is worth including in the encyclopedia. If you look at most Wikipedia articles on court decisions and other news-related items, you will find links to at least one or two articles discussing the importance of the case/news.

  10. This is not about VBAC vs c-section or homebirth vs hospital birth. This is about a person–ANY person–having the right to choose what medical care they receive and the sort of intervention they are comfortable.

    Rather than getting trapped in whether this is a Roe v Wade issue (which it isn’t), let’s look at another analogy. If you were an organ match for your child who needed a transplant, the state CANNOT force you to undergo such invasive surgery. If it cannot do that for a child who is alive and has personal rights to life in a Constitutional manner, then it *certainly* doesn’t have the right to mandate a woman have a c-section against her wishes! The fetus has no rights until it has been born, much less any rights that supercede the mother.

    If I were this woman there would be a NUMBER of lawsuits going on, and the judge would be #1.

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