Does Refusing a C-Section = Child Abuse?

Amie Newman

A woman comes into a hospital, in labor, refuses to pre-consent to a c-section, and has her baby whisked away under charges of child neglect?

Is it willful ignorance? A lack of education? Or some sort of untouchable mysticism that surrounds that which we all share and though rarely speak of?

I’m talking about childbirth and the endless misunderstandings and misinformation that go along with birth – especially in this culture. From what women experience emotionally and physiologically during labor to what women’s legal and ethical rights look like during the same period, the impact of not only our ignorance about birth but our desire to control what we don’t know or don’t understand, serves no one.

Case in point.

The National Association for Pregnant Women (NAPW) recently acknowledged a victory in which they played a part related to a woman who had given birth three years ago and had her newborn swiftly whisked away by a child protective authority claiming child endangerment for refusing to “pre-authorize” a cesarean section. The victory came in the form of a court decision last week reversing a lower court’s decision to terminate the mother’s parental rights (Ms.M aka V.M.) and remove the baby from her custody at birth, because she didn’t consent to a c-section, even though it was never medically necessary. According to NAPW staff attorney Farah Diaz-Tello, the issue of whether refusal of a cesarean section can be fashioned as medical neglect of a child was essentially “put to bed” in an opinion by the Appellate Division last year. However, Judge Carchman, writing in this recent decision confirms that the refusal to consent to a c-section has “no place” in the proceedings, stating that the term “child/ren” does not extend to fetuses for the purposes of the abuse/neglect statute under which Ms. M’s parental rights were terminated.

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According to NAPW,

Even though Ms. M delivered a healthy baby vaginally, and would have consented to a cesarean if it ever became necessary [emphasis added], this resulted in a child welfare investigation, the state’s decision to remove the child from her parent’s custody at birth, and termination of parental rights. In the decision published today (PDF), the Appellate Division reversed the lower court’s termination of Ms. M’s parental rights and ruled that the child protective authority had failed to meet its burden of showing that Ms. M was “unwilling or unable to eliminate the harm facing the child” and that “termination of parental rights will not do more harm than good.”

Ms. M entered St. Barnabas Hospital in New Jersey, in 2006, after experiencing contractions. She was immediately asked to sign consent forms for “the administration of intravenous fluids, antibiotics, oxygen, fetal heart rate monitoring, an episiotomy and an epidural anesthetic” but she refused to essentially pre-consent to “any other invasive treatment.” Kathrine Jack, staff attorney with NAPW involved in the case from the beginning, told Rewire,

“This occurred in a New Jersey hospital that has a 50 percent c-section rate. The hospital policy is that whenever a maternity patient comes in the door, they immediately are asked to pre-authorize any intervention. It’s standard practice and it’s not uncommon.”

Jack’s colleague, Farah Diaz-Tello, a fellow NAPW attorney continued,

“A lot of hospitals have these. From a legal perspective, however, they are questionable. Can you have informed consent, pro-forma?”

It’s an excellent question and it’s precisely in a case like this where that idea gets tested. Can a woman exercise informed consent to a medical intervention during labor if the situation under which she may consent to the intervention hasn’t happened yet? This hospital has a c-section rate that is well above what the World Health Organization deems a safe c-section rate; if women are consenting to a c-section right off the bat (not to mention fetal heart-rate monitoring, antibiotics, episiotomies, and epidurals!) regardless of whether one is actually medically indicated, it’s certainly blurring the lines between what’s medically necessary and the power of suggestion from a medical “authority.” Where does an individual’s right to make an informed choice begin and hospital legal policy end?

Ms. M had a history of psychiatric issues, having been on a range of medication including Zoloft and Prozac and in psychotherapy prior to her pregnancy. Not unlike millions of Americans, she suffered from what was characterized at different times in the court decision as depression, a panic disorder, post traumatic stress disorder and bipolar disorder. She went off her medication during her pregnancy for fear of its effect on her fetus. Prior to coming to the hospital to give birth, there was no indication that she was a danger to herself or to others. V.M. sought prenatal care, according to the records, from Dr. Ted Stevens, an ob-gyn.

This all changed, according to the lower court ruling, during her labor. Ms. M suddenly became a danger to her as-of-yet unborn child when she a) refused to consent, before it was necessary, to a c-section and b) became, what was referred to in the court decision as “combative.”

According to the decision,

“In the hospital records, V.M. is described as “combative,” “uncooperative,” “erratic,” “non-compliant,” “irrational” and “inappropriate.” She ordered the attending obstetrician, Dr. Shetal Mansuria, to leave the room and told her if she did not do what V.M. said, she would be off the case. V.M. then threatened to report the doctor to the police. In fact, at one point V.M. did call the Livingston Police to report that she was being abused and denied treatment. She told a nurse that “no one is going to touch my baby.”

As Diaz-Tello told Rewire, when asked about what kind of “combative behavior” Ms. M/V.M. displayed during and immediately after birth,

“The ‘combative behavior’ was in relation to things that happened after the delivery…you have to see them in the context of when they told her they were taking her baby away.”

Her “combative” and “non-compliant” actions, then, were in response to being told by the hospital that the baby she had just given birth to would be taken from her. The decision states:

She would not allow Dr. Mansuria to touch the baby or perform an ultrasound examination. . . . V.M. “was very boisterous and yelling and screaming at the top of her lungs.”

Is this potentially what the in the first court, ruling against Ms. M, also meant by “uncooperative”, “erratic” and “irrational”? Well, that pretty well describes many women’s behavior during birth but most especially for women who may not abide by what a doctor’s and others’ vision is for her labor and delivery. In fact, notes NAPW,

“…the court itself cites a clinician’s opinion that “it is not surprising that she panicked at the time of delivery . . . [after] being approached about the possibility of a Cesarean section” given her particular emotional vulnerability.”

Ms. M had been evaluated by a psychiatrist because of her refusal to consent to a c-section (“She thrashed about to the extent that it was unsafe…to administer an epidural”); and because, from the record, she was “very boisterous…yelling and screaming at the top of her lungs.” The psychiatrist spoke with her for an hour to make sure she understood the risks and complications of having a c-section or refusing one; Ms. M was honest about her psychiatric history, according to the notes, and was clear about her choice. The psychiatrist concluded that:

“…V.M. (Ms. M) was not psychotic and had the capacity for informed consent with regard to the c-section.”

Not only did the psychiatrist find she had the capacity for informed consent and therefore was capable of saying no to the surgery but mental health, says Diaz-Tello, is not a reason in and of itself for taking a child away from her or his parents.

Despite the psychiatrist’s finding, however, and despite having no apparent legal basis, the initial decision to remove the newborn from Ms. M’s and her husband’s care was specifically related to her decision not to pre-authorize a cesarean section. An amicus brief, filed on behalf of more than 20 organizations and experts including many individual physicians called the lower court’s decision an “injustice and misuse of the child welfare laws” and notes:

“The record is clear that hospital staff referred V.M.’s case to the Division of Youth and Family Services    (“the    Division”    or    “DY FS”)    at    least    in    part    because    of concerns regarding V.M.’s decisions during labor, including her decision not to preauthorize consent to cesarean surgery.”

Unfortunately, the lower court also relied entirely on hearsay evidence to keep Ms. M, her husband, and their baby apart for three years. The series of events were recounted in court, seemingly, to highlight her “combative” and “erratic” behavior without giving rise to the real reasons behind her actions. Jack explains:

“None of the people who were present during her labor and delivery actually testified to anything. The only evidence was the testimony of the child welfare case worker testifying about what the people in the hospital told her after the fact. For example, the evidence of combative behavior is pretty subjective and it was the care providers giving information to a case worker who gave it to the lower court judge…it was a hearsay problem. They may have conflated her adamant refusal [to consent to a c-section] at the time with her anger afterwards and wanting to call the police [after they said they were taking her baby from her].”

It’s not just the fact that the plaintiff (the New Jersey Division of Youth and Family Services) relied on hearsay evidence to prop up its position and ultimately ensure a newborn was separated from her parents but that there seemed to be no legal basis for the decision. According to the amicus brief, not only is the right to refuse consent of a c-section constitutionally protected but the New Jersey statute (N.J.S.A. 30:4C-15.1(a)) used by the court to terminate Ms. M’s parental rights does not pertain to pregnant women. From the amicus brief,

“…family court judges may not consider pregnant women’s medical decisions in terminating parental rights” because, says the amicus brief, “that law does not apply to pregnant women or their fetuses.”

What would the fall-out have been, therefore, had the Superior Court of NJ not ruled in the mother’s favor, last week? 

“Our thought in taking this case was to prevent a precedent that would allow for the consideration of a woman’s decision-making process during labor or about labor to have any place at all in neglect or termination of parental rights,” says Jack of NAPW.

Diaz-Tello goes on,

“…the concern that this would be used as precedent to force women to have c-sections was taken care of at the Appellate level last year.  What made this case a continuing problem was the “other factors” were all either precipitated by or discovered as a result of the refusal. The current case doesn’t resolve that problem, but at least it directly states in the majority opinion that the refusal of the cesarean had “no place” in the termination proceeding.The reason we stayed with the case, is that her refusal [to consent to a c-section] opened up a fishing expedition because of the nature of the child welfare proceeding. Once the door is open you can have field day with every aspect of a woman’s life – that even though they can’t technically use that as the finding, they can use it in some capacity…”

It’s certainly a valid concern given how women’s choices are judged and then used as reasons to deny us our rights. From the cases of women who have given birth to stillborn babies being convicted of homicide because of a history of drug-use while pregnant, to women who are raped only to see their own sexual history used against them in court, courts have used personal biases and pre-conceived notions of how society believes women should behave to justify legal decisions with profound and very real consequences.

For Ms. M, her husband and their now three-year old child, however, the story isn’t over.

With this recent victory, the case has hit a happier note but there is a possibility that the NJ Department of Youth and Family Services will repeal the Appellate court decision; they have thirty days to do so. If they don’t appeal, says Jack, the case goes back to the lower court which will hopefully take steps towards reuniting the family. But because they have been separated so long, says Diaz-Tello, this is certain to be a long process.

News Politics

Missouri ‘Witch Hunt Hearings’ Modeled on Anti-Choice Congressional Crusade

Christine Grimaldi

Missouri state Rep. Stacey Newman (D) said the Missouri General Assembly's "witch hunt hearings" were "closely modeled" on those in the U.S. Congress. Specifically, she drew parallels between Republicans' special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life.

Congressional Republicans are responsible for perpetuating widely discredited and often inflammatory allegations about fetal tissue and abortion care practices for a year and counting. Their actions may have charted the course for at least one Republican-controlled state legislature to advance an anti-choice agenda based on a fabricated market in aborted “baby body parts.”

“They say that a lot in Missouri,” state Rep. Stacey Newman (D) told Rewire in an interview at the Democratic National Convention last month.

Newman is a longtime abortion rights advocate who proposed legislation that would subject firearms purchases to the same types of restrictions, including mandatory waiting periods, as abortion care.

Newman said the Missouri General Assembly’s “witch hunt hearings” were “closely modeled” on those in the U.S. Congress. Specifically, she drew parallels between Republicans’ special investigative bodies—the U.S. House of Representatives’ Select Investigative Panel on Infant Lives and the Missouri Senate’s Committee on the Sanctity of Life. Both formed last year in response to videos from the anti-choice front group the Center for Medical Progress (CMP) accusing Planned Parenthood of profiting from fetal tissue donations. Both released reports last month condemning the reproductive health-care provider even though Missouri’s attorney general, among officials in 13 states to date, and three congressional investigations all previously found no evidence of wrongdoing.

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Missouri state Sen. Kurt Schaefer (R), the chair of the committee, and his colleagues alleged that the report potentially contradicted the attorney general’s findings. Schaefer’s district includes the University of Missouri, which ended a 26-year relationship with Planned Parenthood as anti-choice state lawmakers ramped up their inquiries in the legislature. Schaefer’s refusal to confront evidence to the contrary aligned with how Newman described his leadership of the committee.

“It was based on what was going on in Congress, but then Kurt Schaefer took it a step further,” Newman said.

As Schaefer waged an ultimately unsuccessful campaign in the Missouri Republican attorney general primary, the once moderate Republican “felt he needed to jump on the extreme [anti-choice] bandwagon,” she said.

Schaefer in April sought to punish the head of Planned Parenthood’s St. Louis affiliate with fines and jail time for protecting patient documents he had subpoenaed. The state senate suspended contempt proceedings against Mary Kogut, the CEO of Planned Parenthood of St. Louis Region and Southwest Missouri, reaching an agreement before the end of the month, according to news reports.

Newman speculated that Schaefer’s threats thwarted an omnibus abortion bill (HB 1953, SB 644) from proceeding before the end of the 2016 legislative session in May, despite Republican majorities in the Missouri house and senate.

“I think it was part of the compromise that they came up with Planned Parenthood, when they realized their backs [were] against the wall, because she was not, obviously, going to illegally turn over medical records.” Newman said of her Republican colleagues.

Republicans on the select panel in Washington have frequently made similar complaints, and threats, in their pursuit of subpoenas.

Rep. Marsha Blackburn (R-TN), the chair of the select panel, in May pledged “to pursue all means necessary” to obtain documents from the tissue procurement company targeted in the CMP videos. In June, she told a conservative crowd at the faith-based Road to Majority conference that she planned to start contempt of Congress proceedings after little cooperation from “middle men” and their suppliers—“big abortion.” By July, Blackburn seemingly walked back that pledge in front of reporters at a press conference where she unveiled the select panel’s interim report.

The investigations share another common denominator: a lack of transparency about how much money they have cost taxpayers.

“The excuse that’s come back from leadership, both [in the] House and the Senate, is that not everybody has turned in their expense reports,” Newman said. Republicans have used “every stalling tactic” to rebuff inquiries from her and reporters in the state, she said.

Congressional Republicans with varying degrees of oversight over the select panel—Blackburn, House Speaker Paul Ryan (WI), and House Energy and Commerce Committee Chair Fred Upton (MI)—all declined to answer Rewire’s funding questions. Rewire confirmed with a high-ranking GOP aide that Republicans budgeted $1.2 million for the investigation through the end of the year.

Blackburn is expected to resume the panel’s activities after Congress returns from recess in early September. Schaeffer and his fellow Republicans on the committee indicated in their report that an investigation could continue in the 2017 legislative session, which begins in January.

Commentary Contraception

Hillary Clinton Played a Critical Role in Making Emergency Contraception More Accessible

Susan Wood

Today, women are able to access emergency contraception, a safe, second-chance option for preventing unintended pregnancy in a timely manner without a prescription. Clinton helped make this happen, and I can tell the story from having watched it unfold.

In the midst of election-year talk and debates about political controversies, we often forget examples of candidates’ past leadership. But we must not overlook the ways in which Hillary Clinton demonstrated her commitment to women’s health before she became the Democratic presidential nominee. In early 2008, I wrote the following article for Rewirewhich has been lightly edited—from my perspective as a former official at the U.S. Food and Drug Administration (FDA) about the critical role that Clinton, then a senator, had played in making the emergency contraception method Plan B available over the counter. She demanded that reproductive health benefits and the best available science drive decisions at the FDA, not politics. She challenged the Bush administration and pushed the Democratic-controlled Senate to protect the FDA’s decision making from political interference in order to help women get access to EC.

Since that time, Plan B and other emergency contraception pills have become fully over the counter with no age or ID requirements. Despite all the controversy, women at risk of unintended pregnancy finally can get timely access to another method of contraception if they need it—such as in cases of condom failure or sexual assault. By 2010, according to National Center for Health Statistics data, 11 percent of all sexually experienced women ages 15 to 44 had ever used EC, compared with only 4 percent in 2002. Indeed, nearly one-quarter of all women ages 20 to 24 had used emergency contraception by 2010.

As I stated in 2008, “All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.”

Now, there are new emergency contraceptive pills (Ella) available by prescription, women have access to insurance coverage of contraception without cost-sharing, and there is progress in making some regular contraceptive pills available over the counter, without prescription. Yet extreme calls for defunding Planned Parenthood, the costs and lack of coverage of over-the-counter EC, and refusals by some pharmacies to stock emergency contraception clearly demonstrate that politicization of science and limits to our access to contraception remain a serious problem.

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Today, women are able to access emergency contraception, a safe, second chance option for preventing unintended pregnancy in a timely manner without a prescription. Sen. Hillary Clinton (D-NY) helped make this happen, and I can tell the story from having watched it unfold.

Although stories about reproductive health and politicization of science have made headlines recently, stories of how these problems are solved are less often told. On August 31, 2005 I resigned my position as assistant commissioner for women’s health at the Food and Drug Administration (FDA) because the agency was not allowed to make its decisions based on the science or in the best interests of the public’s health. While my resignation was widely covered by the media, it would have been a hollow gesture were there not leaders in Congress who stepped in and demanded more accountability from the FDA.

I have been working to improve health care for women and families in the United States for nearly 20 years. In 2000, I became the director of women’s health for the FDA. I was rather quietly doing my job when the debate began in 2003 over whether or not emergency contraception should be provided over the counter (OTC). As a scientist, I knew the facts showed that this medication, which can be used after a rape or other emergency situations, prevents an unwanted pregnancy. It does not cause an abortion, but can help prevent the need for one. But it only works if used within 72 hours, and sooner is even better. Since it is completely safe, and many women find it impossible to get a doctor’s appointment within two to three days, making emergency contraception available to women without a prescription was simply the right thing to do. As an FDA employee, I knew it should have been a routine approval within the agency.

Plan B emergency contraception is just like birth control pills—it is not the “abortion pill,” RU-486, and most people in the United States don’t think access to safe and effective contraception is controversial. Sadly, in Congress and in the White House, there are many people who do oppose birth control. And although this may surprise you, this false “controversy” not only has affected emergency contraception, but also caused the recent dramatic increase in the cost of birth control pills on college campuses, and limited family planning services across the country.  The reality is that having more options for contraception helps each of us make our own decisions in planning our families and preventing unwanted pregnancies. This is something we can all agree on.

Meanwhile, inside the walls of the FDA in 2003 and 2004, the Bush administration continued to throw roadblocks at efforts to approve emergency contraception over the counter. When this struggle became public, I was struck by the leadership that Hillary Clinton displayed. She used the tools of a U.S. senator and fought ardently to preserve the FDA’s independent scientific decision-making authority. Many other senators and congressmen agreed, but she was the one who took the lead, saying she simply wanted the FDA to be able to make decisions based on its public health mission and on the medical evidence.

When it became clear that FDA scientists would continue to be overruled for non-scientific reasons, I resigned in protest in late 2005. I was interviewed by news media for months and traveled around the country hoping that many would stand up and demand that FDA do its job properly. But, although it can help, all the media in the world can’t make Congress or a president do the right thing.

Sen. Clinton made the difference. The FDA suddenly announced it would approve emergency contraception for use without a prescription for women ages 18 and older—one day before FDA officials were to face a determined Sen. Clinton and her colleague Sen. Murray (D-WA) at a Senate hearing in 2006. No one was more surprised than I was. All those who benefited from this decision should know it may not have happened were it not for Hillary Clinton.

Sometimes these success stories get lost in the “horse-race stories” about political campaigns and the exposes of taxpayer-funded bridges to nowhere, and who said what to whom. This story of emergency contraception at the FDA is just one story of many. Sen. Clinton saw a problem that affected people’s lives. She then stood up to the challenge and worked to solve it.

The challenges we face in health care, our economy, global climate change, and issues of war and peace, need to be tackled with experience, skills and the commitment to using the best available science and evidence to make the best possible policy.  This will benefit us all.

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