Samantha Burton and the Rights of Pregnant Women Twenty Years after In re A.C.

In 1987, a young woman named Angela Carder, pregnant and dying from cancer, was ordered by a court of law to undergo a cesarean delivery against her and her family’s wishes. She and her baby both died. Three years later, an appeals court took an extraordinary stand: it vacated the order that ended their lives and upheld pregnant women’s rights to informed consent and bodily integrity. The “unkindest cut of all,”¹ it seemed, had been condemned by the courts.² Yet shortly before the twenty-year anniversary of this landmark case, the same rights were stripped from another young pregnant woman.

In January of this year, oral arguments were heard in the case of Samantha Burton. She had been twenty-five weeks pregnant in March 2009 when she developed signs of a potential premature birth. She was also a smoker. Her doctor ordered her to quit smoking immediately and to enter a hospital for bed rest. Burton wanted a second opinion and declined to be admitted to the hospital; she had two jobs and two young children at home, making bed rest problematic at best. Her doctor then contacted the state.

According to the New York Times, Ms. Burton was “ordered to stay in bed at Tallahassee Memorial Hospital and to undergo ‘any and all medical treatments’ her doctor, acting in the interests of the fetus, decided were necessary. Burton asked to switch hospitals and the request was denied by the court, which said ‘such a change is not in the child’s best interest at this time.’ After three days of hospitalization, she had to undergo an emergency C-section and the fetus was found dead.”³

Taken together, these cases indicate a worrisome lack of progress with respect to the personhood and rights of women when pregnant. Remarkably, the Burton case came to court almost exactly twenty years after the rendering of an appellate decision in the Carder case, thought by many to have established a clear precedent for protecting the rights of pregnant women in this situation. In the Carder case, decided on April 26, 1990, an appellate court in Washington, D.C., overturned a lower court ruling that had permitted the hospital to supersede Carder’s refusal of cesarean section.⁴ Though a victory for her family, the decision came too late for the patient.

Angela Carder, twenty-seven years old when she gave birth, was in the second year of remission from bone cancer when she conceived. Midway through her pregnancy, though, the cancer recurred in her lung. All sides in the Carder case agree that Angela’s stated desire was to do everything to prolong her own survival but not to accept interventions for fetal indications before the fetus reached twenty-eight weeks of gestation. Unfortunately, between twenty-five and twenty-six weeks gestation, her condition deteriorated and she became critically ill. The fetus’s condition also appeared worse, and its demise seemed imminent. The family was asked if they wanted a cesarean section performed for the sake of the fetus, even though this intervention might further shorten Angela’s life and would certainly add to her discomfort in her final days. In accordance with Angela’s wishes, the family decided against surgery, and her obstetrician acceded to the family’s request. A hospital attorney, however, felt that fetal interests needed stronger consideration, despite the fact that the fetus was at twenty-six weeks gestation in an era when survival at that age (let alone intact survival) was uncommon even when the mother was well. In the end, the judge ordered that the cesarean section go forward. The operation was performed, followed in short order by the infant’s death and that of its mother.

What happened to Angela Carder was not unheard of at that time. In fact, an article published two years earlier had detailed many cases of “forced” cesarean sections, as well as a pervasive belief among obstetricians that such procedures were justified.⁵ It also revealed a worrisome profile of the...