Roe v. Wade is Not One-Size Fits All: More Reflections on Burton v. Florida

Yesterday, I wrote a post on my own blog examining the decision handed down in the Samantha Burton case (PDF), and discussing why a win for Ms. Burton might not necessarily be a win for the rest of us, particularly birthing women.

The case was heavy on my mind when I went to bed, and—it may be admitting too much to say this—but I dreamed about the law and court decisions. Is there a Courtwatchers Anonymous? A support group for nerds?

My mind puzzled over what the heck is wrong with the courts that they can’t seem to understand birthing women. Then, it came to me all rays of light and Mormon Tabernacle Choir: the problem is the articulation of the state interest.

From the “little guy” side, when you’re saying that your fundamental rights have been violated, the articulation of the right you’re asserting is a real doozy. Sometimes, no matter how hard you try to properly frame the right, the court will bungle it up. So we hold our breath when we get to “the issue presented is…” For example, admittedly without having read the briefs, I doubt that the respondents in Bowers v. Hardwick asserted in so many words a “fundamental right to engage in homosexual sodomy.” (You can almost hear Justice White sneering as he writes it.) But there seems to be no similar exhortation that similar care be taken in the assertion of a state interest. Broad strokes here: public safety, national security, protection of potential life…

So here is Ms. Burton, in danger of possible miscarriage, doctors insisting that the baby will die if she doesn’t comply with their orders. Setting aside the lower court’s foul ball of using the “best interest of the child” standard (ouch!), is it any surprise that the appellate court, its eyes occluded and stinging from nearly 40 years of swimming in abortion politics, grabs for a standard and pulls up Roe v. Wade ?

The court in Burton sets up the following analysis:

  1. A person has a right to refuse medical treatment unless there is a compelling state interest that outweighs that right.
  2. Is the fetus viable?
  3. If so, the state interest in protecting potential life is compelling. [This part comes from Roe]
  4. Let the weighing commence!
  5. (The intrusion has to be “narrowly tailored in the least intrusive manner possible to safeguard the rights of the individual.”)

But is the issue really the protection of potential life? I think that’s an appropriate articulation as applied to Roe and it’s progeny, where the case involves the unquestionable, 100 percent certain, termination of potential human life. But is that really what is at stake with Ms. Burton’s bedrest or any forced medical testing/treatment on pregnant women? Is the only lens through which pregnant women can be examined that of not wanting to be pregnant and trying to “kill their babies”? When the idea that women’s health is code for abortion runs deep, I guess you get to “air quote” women’s health and picture pregnant women as caricatures either engrossed in a “get-me-some-pickles, I-hate-you-you-did-this-to-me” sitcom buffoonery or “bad women” who—maybe even just deep in their black hearts—don’t want to be pregnant and don’t care what happens to their baby.

Indeed, once you break out of the abortion blinders, what you have is the state’s interest in reducing perceived risk to a fetus by some ultimately unknowable increment. No matter how adamant doctors may be, medicine is imprecise: sometimes that baby thought to be in “grave danger of death” comes out just fine, sometimes a placenta completely covering the cervical opening miraculously shifts. Sometimes, unfortunately, the baby dies even when you lock its mother up and cut her open.

As those of us who have been pregnant or loved a pregnant woman know, even in the best case, pregnancy is a roll of the dice. I am sure that most women would give nearly anything to be able to weight the dice; for the state to presume that it, and not the woman carrying the baby, is the one protecting potential life is an insult.

Ultimately, the issue presented is (gasp): How much liberty and bodily integrity should the state be able to require a pregnant woman to surrender to guarantee a perfect birth, something she couldn’t guarantee even if she desperately desired it.

My answer: None.

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  • smjesq

    This is a great analysis, Courtroom Mama — Roe v. Wade is not the right precedent when termination of the pregnancy isn’t the issue.  Instead, the issue is simply one of disagreement over the appropriate health care treatment/process/next step.  Even in the “forced c-section” cases, like Pemberton (also a Florida case), we are NOT dealing with a woman who is saying “I don’t want a c-section because I want to terminate this pregnancy and not having a c-section seems like a good way to do that.” Rather, cases like Burton and Pemberton involve a disagreement between doctor and the woman over whether a c-section/bed rest is the appropriate care.  Even in Burton, what she wanted to do was leave the hospital to get a second opinion on the “bed-rest-or-else” recommended treatment.  We have been mulling this exact issue with NAPW attorneys. As NAPW points out, all Roe tells us regarding third trimester pregnancy is that the state has a compelling interest in preventing abortion.  Whatever one’s political position on abortion, the fact is that Ms. Burton didn’t want an abortion.  She wanted a second opinion on the total-bed-rest recommendation because she’s a single mom, with a full-time job and two other children at home.

    We need to develop a jurisprudence on this type of birth/pregnancy issues.  Maybe one of the feminist law journals will devote an issue to examining the various facets of these cases.

    I also think the concurrence makes an excellent point by focusing on the fact that Ms. Burton was denied counsel for the kangaroo-court “hearing” in this matter.  And the judges who hear these cases don’t know anything about birth, so they take the easy way out and rely on what the doctor/hospital say, according them “expert” status.  What is needed for these, as well as a new focus in our jurisprudence, is a stockpile of available experts, or accessible medical research to support the woman’s health care choice, as well as some readily-available lawyers who can be called on when this type of threat presents itself.  If some of the women involved in these cases had only had the benefit of counsel, the hearings might have turned out differently.  All we see are the appellate decisions, not the local judge, in a telephone hearing, making a seat-of-the-pants guess on how to rule.  Frustrating.  How can we fix this?

    • courtroom-mama

      Smjesq –

      Thanks so much for your thoughtful reply. The question of what to do is one that I think about a lot. The answer may lie in one of the issues that you brought up – the fact that women are denied representation in these cases. No doubt, even though Samantha Burton was not in labor or anyplace close to it, they surely denied her a lawyer on the basis of exigent circumstances. This is a huge problem – even if we did have a stockpile of lawyers, medical experts, and swat teams of medical ethicists, getting women the help they need before their rights are completely trampled is troublesome. First of all, most women are rolling over before it even gets to the point of a court order. Second, how in the world are they supposed to know who to call or even that they can and should have counsel? By way of example, even decades after Miranda, with thousands of cop shows bringing the Miranda warning into our living rooms, people being questioned by police still regularly talk without their attorneys to their detriment.

      I think that we need to strike at the root of the problem: medical providers (and hospital administrators), and judges. Did the ACLU follow up with the hospital personnel who reported Ms. Burton (and if not, why not, since they have a history of this behavior)? We need pregnant women demanding that the hospital administrators tell them exactly at what point in pregnancy they cease becoming competent adults and start being children over whom the state can assert parens patriae authority – publicize this and let women vote with their feet. If the appellate court is saying that the judge below is using the wrong standards, we need to somehow get the judges to use the RIGHT standards (and not this SDP analysis under Roe, but something actually appropriate to the situation). I wonder if you can reach them by educating their clerks…Don’t even get me started on the wholesale acceptance of the testimony of “experts” that has no bearing in scientific evidence.

      It’s a lot to think about, and I’m glad to know I’m not the only one looking at it from this perspective.

  • crowepps

    picture pregnant women as …“bad women” who—maybe even just deep in their black hearts—don’t want to be pregnant and don’t care what happens to their baby.

    The picture that emerges from these cases, over and over again, is that the presumptive legal attitude is that women should be ASSUMED to be too stupid and/or selfish to ‘do what’s right for the baby’, that the woman and her fetus are ALWAYS in an adversarial relationship, and that the doctors/hospital are nobly presenting the ‘one right choice’ as surrogates for the fetus in the struggle against her stupidity/selfishness, and as such are ASSUMED to be entirely impartial when instead they have a huge financial stake in being able to hold the woman hostage and run up the costs on her (or the taxpayer).


    Personally, I think a lot of this controversy would evaporate if, at the point where the woman refuses the suggested treatment, the bill stopped being run up on HER tab and the cost of that treatment was recognized as billable to the fetus (who can neither consent or be contractually bound),  and so the tab would have to be borne by the hospital/doctor who insists on amassing those costs.  Removing the financial incentive, in fact reversing the financial incentive so that it becomes an ‘interference tax’, might make a lot of difference.


    A hospital or doctor which insists it has the right to imprison female patients because they believe extraordinary measures are necessary to safeguard a fetus might be a little more reasonable at the point where they discover they are DONATING the costs of that extraordinary care and their bottom line is going to be impacted.

  • squirrely-girl

    OMG you mean authoritarian, anti-choice people might actually be expected to back up their demands with their own money?!?! What has the world come to when people can’t just make other people do what they want to do for free? //end snark

  • courtroom-mama

    I think that’s a pretty hilarious idea. Unfortunately, through the magic of legal fictions, fetuses are covered by medical insurance, including Medicaid. Some states issue Medicaid cards that say “Infant So-and-So.” Kind of weird. But I’m sure that there has to be a way to say that by law the cost of any medical care done at court order must be borne by the hospital – or better yet, personally by the reporting physician and the judge who granted the order.


    Of course I’m kidding, but it’s nice to fantasize.  I guess the better solution is to fight against the totally unconstitutional granting of these court orders in the first place…