Footnotes Matter: Reflections on Burton v. Florida

by Courtroom Mama on August 12, 2010

According to this press release by the ACLU, the Florida District Court of Appeals ruled in favor of Samantha Burton, and in favor of the “right of pregnant women to make their own medical choices.”

Or did it?

As a reminder for those of us who aren’t courtwatchers, here’s the recap: In March of last year, Samantha Burton, a mother of two experiencing a complicated pregnancy,* was told by her doctor that she should go on bed rest. When she told her doctor that she could not or would not go on bed rest for the remaining 15+ weeks of her pregnancy, she was slapped with a court order by the Circuit Court of Leon County. The order stated that, in order to effectuate the best interest of the child, Ms. Burton had to report to Tallahassee Memorial Hospital for bed rest and any other treatment deemed necessary (including cesarean section). After several days, with Ms. Burton still under court order, a stillborn baby was delivered by cesarean section.

The exact blow-by-blow is unclear, but from the dissenting opinions it appears that Ms. Burton had no lawyer during any hearing that might have taken place prior to her surgery. In August of 2009, the ACLU of Florida filed an amicus brief (PDF) in state court on Ms. Burton’s behalf. The brief argued, among other things, that the lower court had improperly applied the “best interest of the child” standard, which is reserved for juvenile court situations where there are—you know—actual children at issue (as opposed to fetuses). In the decision handed down today (PDF), the court reversed the order, which is great in a posthumous victory sort of way. But watch carefully. Says the court:

A patient’s fundamental constitutional right to refuse medical intervention “can only be overcome if the state has a compelling state interest great enough to override this constitutional right.” Thus, the threshold issue in this situation is whether the state established a compelling state interest sufficient to trigger the court’s consideration and balance of that interest against the appellant’s right to refuse to submit to the medical intervention the obstetrician prescribed. The state’s interest in the potentiality of life of an unborn fetus becomes compelling “at the point in time when the fetus becomes viable,” defined as “the time at which the fetus becomes capable of meaningful life outside the womb, albeit with artificial aid.” (citations omitted)

Did you catch that? The court agreed that the “interest of the child” standard was improper, but posits an alternative framework for which the threshold issue is viability, and the court never made a finding of viability of Ms. Burton’s fetus. According to this reasoning, it stands to reason that if the fetus had been viable, they would have moved on to a balancing of the state’s “compelling interest” in the “potentiality” human life with Ms. Burtons’s right to medical autonomy and bodily integrity. If you’re thinking that this is some pretty convoluted language, it’s because it is a quotation. I unfairly hid the ball with my “citations omitted” – this language is cribbed from Roe v. Wade. Confused? You’re not alone.

In fact, while the court plucks the standard for when the state’s interest becomes “compelling” from Roe, the actual holding of the case suggests no such usage. What the actual opinion says is that:

If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. (emphasis added)

Nothing about the total confinement, nothing about forced surgery. Now there is a definite possibility that the court could stack the “potentiality of life” against the right to medical refusal and Ms. Burton would emerge victorious, particularly where the court follows with the 1-2 punch of the requirement that the imposition of state power be “narrowly tailored in the least intrusive manner.”** But I have a pretty good hunch that this would not be the case.

Enter Laura Pemberton, who in 1996 was dragged from her home to the very same hospital for a court-ordered cesarean section. When she filed an affirmative federal suit (PDF) for damages for the deprivation of her rights, the court ruled that “Ms. Pemberton’s constitutional rights were not violated” using Roe as its justification. According to the court in Pemberton:

The Court [granting the order] concluded that by the point of viability—roughly the third trimester of pregnancy—the state’s interest in preserving the life of the fetus outweighs the mother’s own constitutional interest in determining whether she will bear a child. The balance tips far more strongly in favor of the state in the case at bar, because here the full-term baby’s birth was imminent, and more importantly, here the mother sought only to avoid a particular procedure for giving birth, not to avoid giving birth altogether. 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. (citations omitted)

Translation: if you want that baby, surely you want it by any means necessary. This may indeed be the case, but is that really something that the court should decide?

The court in Burton was not bound to follow Pemberton, but I am not surprised that it went down the same path. The first indication that led me to worry that this might be the case came in footnote 6 of the ACLU amicus brief.

Before I give it to you in its entirety, I should note that before law school, footnotes were so much detritus at the bottom of the page – the flotsam and jetsam of the law that let me turn the pages in my casebook that much quicker. Then I took Constitutional Law with an inscrutable prof who was master of the takedown. Woe betide me, it turns out that most of constitutional jurisprudence as we know it stems from a footnote on a case about evaporated milk. Yeah, footnotes matter. So here’s what the ACLU has to say:

For reasons discussed infra Part III, this is not an otherwise “exceptional” case, and thus is completely distinguishable from Pemberton, in which a federal district court held that a court-ordered cesarean section did not violate the federal Constitution. In that case, the patient was “at full term and actively in labor [for more than a full day]”. “[And i]t was clear that one way or the other, a baby would be born (or stillborn) very soon, certainly within hours.” Indeed, in Pemberton, the court echoed the analysis in In re A.C., cautioning: “Medicine is not an exact science. . . . In anything other than an extraordinary and overwhelming case, the right to decide [on the course of medical treatment] would surely rest with the mother, not with the state.” Based on the unique and exigent facts and “clear and uncontradicted evidence,” it ultimately held that Ms. Pemberton’s case was “thus markedly different” from the situation in In re A.C., and thus extraordinary. However, because the federal court did not consider Ms. Pemberton’s right to refuse medical treatment under the Florida Constitution and because the facts of Ms. Burton’s case do not even begin to approach the facts in Pemberton, that decision does not support, let alone require, a similar determination in this case. (citations omitted)

Instead of giving the court a foothold to reject the idiosyncratic reading of Roe in Pemberton, the ACLU distinguishes Pemberton predominantly on the facts. This leaves open the possibility that if the factual situation were different, Pemberton might “support [or] require a similar determination.” I shudder to think which factor might tip the balance for any particular woman, but my gut tells me that the ringer would most likely be a full-term pregnancy in labor. That is, virtually any women who attempts an “unauthorized” VBAC, any woman who checks herself out of the hospital against medical advice, or any woman who gets the 39-week macrosomia bait-n-switch.

So congratulations to Samantha Burton and to the ACLU. To the rest of us of childbearing years, maybe it’s best to steer clear out of Florida.

*or, as the court puts it, “the appellant had failed to follow the doctor’s instructions and recommendations, rendering her pregnancy ‘high-risk.’” What are the implications of this framing for obese women? What if it’s true that gestational diabetes and preeclampsia are caused by diet and lack of exercise?

**although, let’s be real, when was the last time an OB told a woman in this sort of situation that her baby would probably be just fine if she had that vaginal breech birth? Or is it more like “if you do not lay down on this table for a cesarean right now, you, your baby, and probably your neighbors will die!!!”