ACLU Asks if Pregnant Women Can Be Penalized For Drinking, Speeding, Poor Eating

By SUSAN DONALDSON JAMES

Jan. 14, 2010—

For three days, a pregnant Samantha Burton was confined to Tallahassee Memorial Hospital against her will, ordered by a Florida court to bed rest and any medical care necessary to sustain her troubled pregnancy.
Burton was in her 25th week of pregnancy in March 2009 when she began to go into premature labor and willingly went to the hospital on the advice of her doctor.
But when the 26-year-old resisted -- learning that she might have to stay months until her delivery, away from two toddlers at home -- hospital officials obtained a court order to force Burton to submit to anything to "preserve the life and health of [her] unborn child."
Burton miscarried three days later and was discharged, but now she is taking up the fight over her treatment with the help of the Florida American Civil Liberties Union. They want to strike down the court order that rendered her powerless to make her own medical decisions.
This week, before a three-judge panel in Tallahassee's First District Court of Appeal, Burton's lawyers argued that the Leon County Court order set a "dangerous" precedent.
Critics say the state's intervention could have dark ramifications for other pregnant women who could even be criminalized for drinking a glass of wine or eating unhealthy foods, driving too fast or even failing to take their prenatal vitamins.
"Women do not give up their right to determine the course of their own medical care when they become pregnant," said Diana Kasdan, staff attorney with the ACLU Reproductive Freedom Project. "Faced with similar cases, courts throughout the country have made clear that pregnant women have a right to make decisions about their own health, including refusing medical care."
"We pursued this appeal for this reason, to set the record straight," she told ABCNews.com.
Lisa Raleigh of the Florida Attorney General's office, who argued that the state exercised due process when it intervened to save the life of Burton's unborn child, did not return calls from ABCNews.com.
Burton, described by her pro bono lawyer as a "quiet woman" who was shying away from publicity, is seeking no monetary damages and has said that she is appealing the court order to help other women.
Burton, who is married, was "actively taking part in prenatal care" when she began to have problems with her pregnancy, according to her lawyer David Abrams, who is also a trained nurse.
She willingly went into the hospital on the advice of her obstetrician, Dr. Jana Bures-Forsthoefel. But Burton argued with her doctor about the length of stay and also about her smoking.
Bures-Forsthoefel did not return calls from ABCNews.com.

Pregnant Woman Couldn't Quit Smoking

"She was having difficulty quitting smoking and wanted to go home to be with the children and not be alone in a hospital room for three months," said Abrams.
He said the state acted unconstitutionally and infringed in her rights to "privacy and liberty."
Burton was never offered a second opinion or any compromises, such as a nursing home or less restrictive facility, according to Abrams. At one point a friend who lived near the hospital had offered to take Burton in.
When Burton refused to stay, the hospital called the state, which appointed the hospital lawyer to prosecute the case and got an order from the Leon County Court.
Burton was appointed a lawyer "after the fact," said Abrams.
"The court order was so broad it was one of civil commitment," he said. "It basically said any treatment deemed necessary to respect the fetal health and made her a ward of her doctor."
"This was not refusal of medical care, it was about who decides and in what setting," he said. "When I walked into her hospital room I saw no monitor, she was alone in a bland room, not unlike a prison cell, not the kind of place you'd want to spend three months alone in separated from your family."
The state has argued that the court order was necessary because the medical well-being of the fetus was at stake. Burton, they say, had also refused to stop smoking.
Murray Moore, who was appointed special assistant state attorney in the case, would not comment on Samantha Burton's case due to issues of confidentiality.
"It's a good law that allows the state to intervene," said Moore, who works for Pennington Law Firm, which represents Tallahassee Memorial Hospital. "In that case, I was bringing action on behalf of the state to protect the state's interest in saving the child's life."
But, he acknowledged legal intervention is "rare" and "only in the most extreme circumstances."
"Her circumstances are not unusual," countered ACLU lawyer Kasdan. "Women face complications in pregnancy all the time and have to make decisions all the time for themselves, their families and their future child."
"It is hard to imagine anything more commonplace than the inability of a mother of two to remain on continuous bed rest," said the ACLU brief, "or the well-documented difficulty in quitting smoking."
Kasdan also argues that "coercive treatment and disregard of women is counterproductive," a position taken by the American College of Obstetricians and Gynecologists (ACOG).
The ACOG opposes such legal interventions, which it says can "create the potential for criminalization of otherwise legal maternal behavior."
Its ethics committee took a formal position in 2005 after a Utah woman who had used cocaine was charged with homicide for refusing the caesarian delivery of a fetus that was ultimately stillborn.
In other cases in 2004, a 28-year-old mentally ill Florida woman was charged with first-degree murder for refusing to undergo an immediate Caesarian section deemed vital for the well-being of the fetus.
And in Pennsylvania, a hospital obtained a court order when a mother of six refused a Caesarian because the fetus had suspected macrosomia, or excessive weight. She fled and later gave birth vaginally to a healthy 11-pound baby.
"Efforts to use the legal system to protect the fetus by constraining pregnant women's decision-making or punishing them erode a woman's basic right to privacy and bodily integrity and are not justified," said ACOG's ethics committee.
Both the ACLU and the American Women's Association, which also filed a friend of the court brief, say legal interventions are never in the best interest of the child and may discourage pregnant women from seeking medical care.
Meanwhile, as Burton waits for a decision from the appeals court, she has said that even though her confinement was only for three days, she wants to help other pregnant women.
"When Samantha had the miscarriage, it was late at night and she was alone and in pain," said her lawyer, Abrams. "She felt no one was paying attention and she doesn't want anyone else to go through this."
"She felt people had stopped listening to her," said Abrams. "She became an incubator for the state and stopped being an adult woman who could make her own decisions. The court order was all about the fetus, not the mother's health. She had no rights."

Copyright © 2010 ABC News Internet Ventures

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mum4boys aka Heidi married to my best friend John and mum to our 5 kids: Johnny (19), James (18), Levi (12), Liam (11) and Maggie (3)
GOOD moms let their kids lick the beaters. GREAT moms turn off the mixer first
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That's pretty scary. I get the whole pro life thing, and if it was me, I would have been terribly upset, but done the bedrest thing, even with the toddlers, I don't think I could 'give up' on the baby in me. BUT to me this is more than just the mom not having the right to decide her own health, she also didn't get to decide how to care for her own child (in her).

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Having been on bed rest with my last 2 children, its super hard to make the choice. With Hailey I was able to be in the hospital for 4 months...on bed rest but with 2 toddlers at home, I couldn't do that with mike, yes i had a commitment to the child inside me, but I also had a commitment to the children I already had. So I stayed home and stayed off my feet as much as I could.

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Wendi Married to Dan for 21 years
Kayla 20
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and Michael 14

but YOU were able to make that choice, that mom didn't have that choice.

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I do not understand the ruling at all especially since it legal to have an abortion. I really believe this is crossing the line whether it was the best thing for her or not. It was her body and her child. It should have been her decision.

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mum4boys aka Heidi married to my best friend John and mum to our 5 kids: Johnny (19), James (18), Levi (12), Liam (11) and Maggie (3)
GOOD moms let their kids lick the beaters. GREAT moms turn off the mixer first
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I don't understand this at all either. I don't understand why they say she miscarried at 25 wks. I thought after 20 wks it was considered a birth?

I can't imagine not following my dr's recommendations, but also in these situations, sometimes you do what you have to do. She should have had the choice.

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"Every morning in Africa, an antelope wakes up. It knows it must outrun the fastest lion, or it will be killed.
Every morning in Africa, a lion wakes up. It knows it must run faster than the slowest antelope, or it will starve.
It doesn't matter whether you're the lion or an antelope - when the sun comes up, you'd better be running."
-African Proverb

Exactly that.
How can the state say that it's alright to abort but not alright to decline medical care? I was ordered to do bedrest with both pregnancies, and sent home. In fact, with Kaine, my OB basically said "I know it's hard with a toddler but just try to relax as much as you possibly can."
And I say this all as a strong pro-life supporter. It's ridiculous to me that (imo) a woman is legally entitled to choose to end her childs life but not entitled to make medical decisions that impact both lives. I'm left just as baffled when they try to charge a person with double homocide for death of a pregnant woman, as if a fetus's personhood is completely hinged on whether or not they are wanted by their mother. It's all in all a lot of conflicting morality in my mind.
And having been in this boat, I would be furious to be confined to a hospital like a prisoner.

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Heather, Wife to Shaun since July 20th, 2002, Mom to Elijah (born Sept. 10, 2003), Kaine (born Feb. 9, 2006).

Yes your right it was my choice, but I lost my dr. over not going into the hospital wiht michael, He fought big time, boarderline harrassed me into going into the hospital, and when i refused he dropped me. Said if I wanted to kill a baby I could but his job was to give life not take it. I think they crossed the line big time!!!

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Wendi Married to Dan for 21 years
Kayla 20
Hailey 16
and Michael 14

That's terrible wendi ... they need to be respectful

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