The saying goes: Hard cases make bad law. Cases involving birthing women are no exception. A recent commentary in the New England Journal of Medicine examined the phenomenon of court-ordered medical treatment for pregnant women, and the legal reasoning underlying the cases in which this violation of women’s rights has been allowed. Fortunately, a recent decision from Massachusetts upheld the fundamental principle that women enjoy the same Constitutional rights as everyone else. [i]
Two major factors encourage efforts to subject pregnant women to compulsory medical treatment and deny pregnant women their fundamental rights including the right to informed medical decision-making: first, the argument that fertilized eggs, embryos, and fetuses should be treated as completely legally separate from the pregnant women who carry, nurture, and sustain them; and second, the exigencies and emotional tension of cases involving pregnant women who are at term. The belief that lives are at stake, coupled with sham legal processes (including bedside interrogations, emergency telephone “hearings” in which every party but the pregnant woman has a lawyer, and no opportunity to present expert testimony on the woman’s behalf or even to challenge the claims against her), can lead even well-intentioned judges to authorize terrifying acts against pregnant women.
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