Backlash: The Undeclared War Against American Women

by Susan Faludi

  Nonetheless, law enforcement officials were eager to mobilize. The National District Attorneys Association even sponsored a two-day workshop to encourage prosecutors to wage legal war on pregnant women who took drugs. In 1988 in Butte County, California, a particularly crusading district attorney, Michael Ramsey, announced that he would prosecute any mother whose newborn tested positive for cocaine, methamphetamines or heroin, under a statute with a mandatory ninety-day jail term. What he envisioned, he says later, was “a system of choices.” He promised to exempt any woman who was in a drug treatment program. But Butte County had no such programs. What kind of choice was that? He explains, “I don’t see people making a choice unless you force them.”

  The first woman snared in Ramsey’s dragnet was an impoverished twenty-seven-year-old heroin addict. For the prosecutor’s purposes, however, she proved to be less than the ideal first criminal. The young woman had, in fact, been traveling 130 miles round trip to the nearest methadone clinic, a $200-a-month private program in Sacramento. When her car broke down, she had hitchhiked. When her funds ran out, the program had discharged her, even knowing that she was pregnant. Two months from her due date, she appealed to several medical providers in the area—without success. None of these mitigating circumstances, however, deterred Ramsey and his pregnancy police squad. When her newborn tested positive for heroin, his team descended on her hospital room less than twenty-four hours after she had given birth, interrogated her, and took away her baby. Or rather, as Ramsey puts it, “We went down and presented her with the options.”

  If the point of this prosecutorial policy was to frighten drug-addicted women into seeking help during their pregnancies, the strategy backfired. In Butte County, indigent women with drug problems just began steering clear of hospitals altogether—for fear they would be thrown in jail. At the Chemically Dependent Mothers’ Program in San Diego, after Pamela Rae Stewart’s arrest, the director observed that “women have constantly expressed concerns to me that I would turn them in.” (Stewart herself subsequently went into hiding.) In San Francisco, public-health professionals and social workers were soon reporting a rise in “toilet-bowl babies”—babies born at home, in bathrooms, or on kitchen floors. As deputy city attorney Lori Giorgi, who was seeing more such cases, reported, “They’re afraid their babies will be taken away.”

  SCALPELS AND CESAREANS: INTRUDERS IN THE WOMB

  Doctors, who had first defined the fetus as an independent patient with a right to treatment, now began to define the pregnant woman as an ancillary party with no right to refuse treatment. First the doctors had issued a list of prohibitions, telling pregnant women what they couldn’t do with their own bodies. Then the doctors went on the offensive, telling pregnant women that physicians would now be free to operate on their bodies—with or without their consent. In a 1986 national survey of directors of maternal-fetal medicine fellowship programs, nearly half the doctors said they supported court orders that forced pregnant women to submit to obstetrical procedures—and favored involuntary detention of pregnant women whose failure to submit they believed might pose a risk to the fetus. Less than a quarter consistently supported a competent pregnant woman’s right to refuse her doctor’s orders. In the professional medical literature, physicians and medical school professors were proposing increasingly harsh and punishing methods of dealing with pregnant women who wouldn’t comply with doctors’ orders. Their recommendations included arresting women for “refusal to accept genetic counseling” or for choosing to deliver their baby by midwife against the recommendations of a physician.

  The judges backed up the doctors. When the physicians asked for judicial muscle to enforce their will, the courts almost always delivered. The men on the bench, too, while crusading for fetal rights, often seemed to have trouble envisioning the women as full and live persons. A Washington, D.C., Superior Court judge ordered a cesarean section against the wishes of a nineteen-year-old pregnant woman, Ayesha Madyun, with this decree: “All that stood between the Madyun fetus and its independent existence, separate from its mother, was, put simply, a doctor’s scalpel.”

  A review of medical institutions in eighteen states between 1981 and 1986 identified thirty-six cases where doctors had gone to court to force an unwilling woman to submit to obstetrical intervention—most times within a day after they first heard of the woman’s refusal. Judges granted all but three of the requested court orders—88 percent within six hours, 20 percent within an hour or less. At times, consent was conveniently granted over the phone. The women’s wishes were ignored in these cases even though in no instance had they been found to be mentally incompetent. And most of these situations weren’t even emergencies; in only two cases did doctors demand a cesarean section because they believed the fetus was in serious medical danger. And these doctors’ judgments were often wrong. Their predictions of harm proved false in six of the fifteen cases involving court-ordered cesareans. In a 1981 court order involving a Georgia woman, doctors testified that without the procedure, the chances of the fetus’s demise were 99 percent. After the court granted the order, the woman went into hiding—and delivered a healthy baby without the operation.

  At a time when the rights of patients to refuse treatment in all other areas was gaining legal ground, pregnant women were increasingly losing battles to exercise their right of refusal in the obstetrical ward. The doctors, hospitals, and courts involved in these forced obstetrical surgeries often seemed contemptuous of pregnant women’s rights. In Chicago, a woman expecting triplets was tied down to her hospital bed with wrist and ankle cuffs after she refused to consent ahead of time to a cesarean. Instead of allowing her to seek care elsewhere, the hospital obtained custody of the unborn triplets and got a court order to force her to have the procedure. In at least two instances, the doctors didn’t even bother to get a court order before wheeling their protesting patients into the operating room. In a 1982 Michigan case, the judge didn’t just order a woman to undergo a cesarean against her will; he told her that if she didn’t comply, he would send the police to her house to drag her to the hospital. (She, too, fled and gave birth to a healthy baby.)

  In ordering these operations, judges went far beyond the case law on parental duties to live children. The courts have long held that parents cannot be compelled to take actions to benefit their children’s health. In two key cases, the courts refused to force a father to donate a kidney to his dying child and declined even to make parents move to a new climate to aid their ailing child. “To compel the defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded,” the judge wrote in one such decision. “To do so, would defeat the sanctity of the individual.” It was apparently less of a legal leap to intrude upon the body of a pregnant woman.

  The proponents of forced obstetrical surgery argued that protecting the fetus didn’t interfere with pregnant women’s rights in any serious way; even if the mother didn’t want a cesarean, the procedure was unlikely to hurt her. But when it came down to a choice between the health of the mother and the rights of the fetus, the fetus began to win out. This coercive ranking of maternal and fetal rights was nowhere more brutally spelled out than in the case of “A.C.”—the impersonal appellation the court would assign to Angela Carder in her final dehumanizing days.

  • • •

  ON A June day in 1987, Angela Carder lay in a hospital bed at George Washington University Hospital in Washington, D.C. A twenty-eight-year-old secretary, twenty-six weeks pregnant, she was missing a leg, a casualty of her lifelong war with bone cancer. Doctors had told her before, twice, to be prepared for imminent death. Both times they had been wrong. She was, in fact, one of the first children to survive Ewing’s sarcoma, cancer of the connective tissue.

  In 1984, Carder had married and decided she wanted to have a baby. She asked her doctor’s advice. Her cancer had been in remission for several years and her obstetrician told her to go ahead and get pregnant. But mid
way through her pregnancy, the disease returned with a vengeance. In her sixth month, an inoperable tumor engulfed her lung. She was hospitalized at George Washington and the doctors there issued a terminal prognosis. Her longtime oncologist, who had witnessed Carder pull through before and did not consider her to be a terminal case, recommended radiation and chemotherapy—treatment which Carder wanted, too. “She told the doctor in the beginning she wanted her health to come first,” her mother Nettie Stoner recalls. “Angie had been through too much in her life struggling to survive to give up her life.”

  But the doctors at the hospital, who had just entered the case and were giving Carder only days to live, wouldn’t prescribe chemotherapy because they feared it would endanger the fetus. At twenty-six weeks, it was unlikely to survive, but if they could prolong Carder’s life for a couple of weeks—rather than attempting to save it—the fetus would have a better chance. So instead of treating her cancer, they jammed a tube down her throat and pumped her with sedatives, a strategy to delay the hour of death. Carder tried to fight this “treatment,” her mother says, remembering how her daughter thrashed and twisted on the bed, fending off the doctors. “She said, ‘No, no, no. Don’t do that to me.’” But Carder lost the battle and was, quite literally, silenced. With the tube in place, she couldn’t speak.

  Word of the Carder case quickly traveled to the hospital’s executive and then legal suites. George Washington Hospital’s lawyers were not oblivious to the current climate on fetal rights. They had seen other hospitals dragged into court by antiabortion activists for failing to pursue heroic measures to save severely compromised fetuses. They began to worry: What if the fetus were “viable”? The hospital could be held liable for its death. The administration proposed that the doctors try to rescue the fetus with immediate intervention—a cesarean section.

  In Carder’s fragile state, performing major surgery would likely kill her. Even the hospital’s doctors, who wanted to save the fetus, opposed it. As for the opinion of the patient herself, she was said to be “unconscious” from the sedatives and unavailable for consultation. Rather than waiting a few hours for the drug-induced haze to clear so they could ask Carder’s permission—and without ever seeking the advice of her family—the hospital administration called in a judge.

  Superior Court judge Emmet Sullivan came by that very afternoon and set up court in a hospital conference room. On one side: the hospital’s legal team, two city attorneys, and the lawyer for the fetus. On the other: a lone court-appointed attorney representing Carder, appointed a half hour before the hearing.

  Carder’s family was invited to the session, but no one apprised them beforehand that it was a hearing to decide their daughter’s fate. While visiting her daughter in the intensive care unit earlier that day, Nettie Stoner recalls a social worker drawing her aside and simply telling her she was needed for a “short meeting” down the hall. “No one told me what was wrong,” Stoner says, and the atmosphere in the conference room only confused her further. “I walked in and they were having lunch catered like a party. They were saying, ‘Have a sandwich! Have a soda!’”

  The judge asked for a medical opinion. Each of the physicians in the hospital’s obstetrical department recommended against the operation. Then the fetus’s lawyer, Barbara Mishkin, spoke up. “Well, I suppose it will hasten her death,” she said, but Carder was probably going to die in a few hours anyway. Her rights should be put aside. To support her argument, Mishkin related a story she had heard secondhand. Carder, she told the court, had reportedly said the previous evening that she had “had enough of the pain.” Mishkin concluded from this hearsay evidence that Carder might not have wanted to live anyway, so the fetus’s interests should prevail.

  The judge’s questions to Mishkin and the others focused almost exclusively on the fetus. He wanted to know how a cesarean section would affect the fetus’s health—but not how it would affect Carder’s. He championed the fetus’s right to live—but characterized Carder’s struggle to survive as an almost selfish concern for “her own comfort.” Not once did the judge explore or challenge the assumption that Carder was all but dead. Her longtime oncologist was not even invited to the hearing. When Carder’s attorney observed that performing a cesarean on Carder “would in effect be terminating her life,” he was cut off in midsentence by the judge, who said, “She’s going to die.” Hearing this, Carder’s anguished father cried out, “Who is to say she’s going to die?” His question was ignored.

  Although Carder lay just down the hall, neither the judge nor the attorneys engaged in this life-and-death proceeding bothered to take the short walk to her room. Later, everyone would have their reasons. “If I wanted to go, then everybody would want to,” is the explanation that Mishkin offers. “I didn’t want to intrude.” She adds, “It was the end of an exhausting day. We couldn’t take any more.”

  The judge took a brief recess, then reconvened the hearing. “There’s been some testimony that the performance of a cesarean section may very well hasten the death of Angela,” he told them. “There’s also been testimony that delay in performing the cesarean section greatly in creases the risk to the fetus. . . . Given the choices, the court is of the view the fetus should be given an opportunity to live.” Then he said, “I have ruled”—and told the doctors to operate immediately.

  Dr. Louis Hamner from the obstetrical unit returned to Carder’s room to deliver the news. The sedatives were just begining to wear off and Carder was still foggy. He asked her if she wanted the surgery and she mouthed the word “yes.” A half hour later, he returned to her room. This time, she told him, “I don’t want it done, I don’t want it done”—unambiguously and repeatedly. It was, Hamner said, “quite clear to me.”

  But when the doctor hastened to the conference room to tell the others still assembled there, they were dubious. The judge said, “The court is still not clear what her intent is.” And one of the city’s lawyers, Richard Love, allowed that Carder’s opinion didn’t matter anyway, because the court had originally made the decision on the assumption that it was to be an operation performed without her consent. The judge agreed and, once more, told the doctors to start the operation.

  In a last-ditch effort, Carder’s court-appointed attorney Robert Sylvester called the American Civil Liberties Union Reproductive Freedom Project; the ACLU attorneys filed an emergency appeal for a stay. Within the hour, the case was heard via a conference phone call, with a hastily assembled three-man panel from the appellate court. The judges, told that the operation had to begin at once, agreed to hear all the evidence and make a decision in “sixteen minutes.”

  Almost immediately doubts were raised about Carder’s ability to make a decision. Was her “mental frame of mind” impaired? the judges wanted to know. “Does this woman seem to be ambivalent?” Judge Frank Nebecker pressed. “Changed her mind at least twice, is that correct?” The fetus’s attorney Barbara Mishkin told the judges that the operation’s threat to Carder’s life was “insignificant” because she was a terminal cancer patient. It was “not a question of choosing between the life of the mother and the life of the fetus because the mother cannot be restored to normal life expectancy.” The “right of the fetus” to live in this case, she said, “overrides any interest in the mother’s continued very short life.”

  Because the attorneys had all been appointed at the last minute, none were well informed of reproductive rights law. The only one attending this telephonic hearing who was familiar with the legal case history in this area was Elizabeth Symonds, the ACLU attorney. The law “is quite clear,” she told the judges. “The Supreme Court unequivocally ruled a woman’s life and health must always prevail over the fetus’s life and health, direct quote 439 U.S. 379, 400.” Judge Nebecker asked her one question, interrupted her midway through the first sentence of her answer, then said, “With the time constraints, we don’t have time to start reading.” Instead, with the sixteen minutes up, the judges ordered the hospital to perform the oper
ation.

  A short while later, the doctors delivered a girl. She was said to have “lived” two hours, although it’s unclear how: repeated efforts to inflate her lungs with a respirator were unsuccessful. It was “like trying to ventilate a rock,” Dr. Hamner told a Washington Post reporter later. Nettie Stoner was invited up to see the baby; she recalls the hospital staff handing her a tiny stiff corpse, dressed in a diaper, T-shirt, and cap. A nurse told her that the baby had lived briefly, but Stoner didn’t believe her. “They wanted a live product,” she says bitterly. “They wanted a live product so they could justify what they had done.”

  Carder awoke a few hours later. When she was told the baby was dead, she cried. Her mother held her hand and told her it would be okay, that they all loved her and maybe one day she would have another baby. Soon after, Carder slipped into a coma. Two days later, she was dead. An autopsy report determined that the operation was a contributing cause of her death.

  Five months later, the Court of Appeals finally issued its written opinion in support of its sixteen-minute decision. “We well know,” the unapologetic opinion said, “that we may have shortened A.C.’s life span.” Carder’s parents would later appeal the order, on the grounds that their daughter had not consented to the operation and that the surgery had violated her right to live. Three years later, the D.C. Court of Appeals finally agreed and ruled the judicial decision in error. But that was three years too late to matter to Angela Carder.