Jehovah's Witnesses,Pregnancy,and Blood Transfusions: A Paradigm for the Autonomy Rights of All Pregnant Women

In re Fetus Brown, 689 N.E.2d 397, 405 (Ill. App. Ct. 1997), citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 852 (1992).

Solomon J. , “A History of Transfusion Medicine,” in Ross A. , ed., Administrative Manual (Bethesda: American Association of Blood Banks, Vol. III, 1990): At 1.

See, for example, Nelson L. Milliken N. , “Compelled Medical Treatment of Pregnant Women,” JAMA, 259 (1988): 1060–66; Chervenak F. McCullough L. Skupski D. , “An Ethical Justification for Emergency, Coerced Cesarean Delivery,” Obstetrics & Gynecology, 82 (1993): 1029–35; Nocon J. , “Physicians and Maternal-Fetal Conflict: Duties, Rights and Responsibilities,” Journal of Law and Health, 5 (1990): 1–34; Strong C. , “Court-Ordered Treatment in Obstetrics: The Ethical Views and Legal Framework,” Obstetrics & Gynecology, 78 (1991): 861–68; and Chervenak F. McCullough L. , “Perinatal Ethics: A Practical Method of Analysis of Obligations to Mother and Fetus,” Obstetrics & Gynecology, 66 (1985): 442–46.

See, for example, Sacks D. Koppes R. , “Caring for the Female Jehovah's Witness: Balancing Medicine, Ethics, and the First Amendment,” American Journal of Obstetrics & Gynecology, 170 (1994): 452–55; Sacks D. Koppes R. , “Blood Transfusions and Jehovah's Witnesses: Medical and Legal Issues in Obstetrics and Gynecology,” American Journal of Obstetrics & Gynecology, 154 (1986): 483–86; and Jurow R. Paul R. , “Cesarean Delivery for Fetal Distress Without Maternal Consent,” Obstetrics & Gynecology, 63 (1984): 596–99.

Application of President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964).

Jefferson v. Griffin Spalding County Hospital Authority, 274 S.E.2d 457 (Ga. 1981).

In fact, although the order for a cesarean section was upheld by the Supreme Court of Georgia, it was not enforced and the patient vaginally delivered a healthy baby. See Nelson L. Buggy B. Weil C. , “Forced Medical Treatment of Pregnant Women: ‘Compelling Each to Live as Seems Good for the Rest’,” Hastings Law Journal, 37 (1986): 703–63, at 763 n.229.

See, for example, Chervenak F. McCullough L. , “Justified Limits on Refusing Intervention,” Hastings Center Report, 21, no. 2 (1991): 12–18.

In re Fetus Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997).

Both the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists have published guidelines concerning refusals of treatment by patients (both pregnant and not) and the appropriate course of action for physicians. These guidelines are discussed infra pp. 176–77.

Shorter v. Drury, 695 P.2d 116 (Wash. 1985).

See id. at 118–19.

See id. at 119.

See id.

See id. at 120.

See id. It is inaccurate to state that the absence of a signed statement evidencing the patient's refusal of treatment would necessitate court intervention. The attending physician's note in the record that the patient wished to decline blood, even on risk of death, would suffice to insulate the physician and hospital from liability. Presumably, the court's comments refer to the hospital's understandable policy of requiring a signed statement as the best evidence that the patient understood the risk of death.

Despite the court's comments, Jehovah's Witnesses are unlikely to sue a physician for abiding by a family member's desire to refuse blood.

Corlett v. Caserta, 562 N.E.2d 257 (Ill. App. Ct. 1990).

See id. at 259.

See id. at 257.

See id. at 264.

See id. at 262–63.

The U.S. Supreme Court has never held that competent adults have the right to refuse treatment. In Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), which concerned the right of an incompetent adult to refuse life-sustaining treatment through a surrogate, the Supreme Court assumed, without deciding, that competent individuals have a right to refuse such treatment. Although the right to refuse treatment may not be protected by the U.S. Constitution, many state courts have held that this right is contained in the constitution of the state in which the court has jurisdiction.

See Roe v. Wade, 410 U.S. 113 (1973).

See discussion infra pp. 176–77.

See Stallman v. Youngquist, 531 N.E.2d 355 (Ill. 1988); see also notes 30–34 and accompanying text.

See In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. Ct. 1994); see also notes 35–50 and accompanying text.

See In re Fetus Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997); see also notes 51–77 and accompanying text.

The author is not aware of such a designation in the literature. However, the development of a doctrine of “fetal rights,” which relies largely on Roe v. Wade, is discussed in Gallagher J. , “Prenatal Invasions and Interventions: What's Wrong with Fetal Rights,” Harvard Women's Law Journal, 10 (1987): 9–58; and Arch R. , “The Maternal-Fetal Dilemma: Honoring a Woman's Choice of Medical Care During Pregnancy,” Journal of Contemporary Health Law & Policy, 12 (1996): 637–73.

See Stallman, 531 N.E.2d 355 (Ill. 1988).

See id. at 360.

See id. at 358.

Id. at 361.

See id. at 359.

In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. Ct. 1994).

James Meserow was described by the court as a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine. Id. at 326–27.

See id. at 327.

Ms. Doe was a member of the Pentecostal Church. See Brief of Respondent-Appellant at 30, In re Fetus Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997) (No. 96–2316).

See Doe, 632 N.E.2d at 327.

See id. at 328.

See id. at 328–29.

See id. at 331.

See id. at 329.

Id. at 331.

See id. at 330, 331.

In 1965, the Illinois Supreme Court had determined in In re Estate of Brooks, 205 N.E.2d 435 (Ill. 1965), that an adult Jehovah's Witness had the right to refuse a life-saving blood transfusion. In that case, a married adult woman with no minor children had refused life-saving blood transfusions necessitated by a peptic ulcer. The trial court ordered the transfusions, but the Illinois Supreme Court reversed, holding that an individual's free exercise of religion may be limited “only where such exercise endangers, clearly and presently, the public health, welfare or morals.” Id. at 441. The court further found:

Even though we may consider appellant's beliefs unwise, foolish, or ridiculous, in the absence of an overriding danger to society we may not permit interference therewith for the sole purpose of compelling her to accept medical treatment forbidden by her religious principles and previously refused by her with full knowledge of the probable consequences.

Id. at 442. Although Brooks did not involve a pregnant woman, it provided the Doe court with precedent for finding that a competent adult could refuse treatment.

Although the Doe court could have relied solely on Brooks to find a common law right in Illinois to refuse treatment, the court also cited the 1989 case of In re Estate of Longeway, 549 N.E.2d 292 (Ill. 1988), which concerns the right of the guardian of an incompetent, terminally ill woman to direct the withdrawal of artificial nutrition and/or hydration on her behalf. In that case, the Illinois Supreme Court held: “No right is more sacred or is more carefully guarded by the common law, than the right of every individual to the possession and control of [the individual's] own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Id. at 297. The Longeway court chose not to decide whether such a right is protected by the U.S. Constitution, finding such a determination unnecessary given its decision that Illinois common law grants such a right. Id.

See Doe, 632 N.E.2d at 334–35, citing Cole H.M. , “Legal Interventions During Pregnancy: Court-Ordered Medical Treatments and Legal Penalties for Potentially Harmful Behavior by Pregnant Women,” JAMA, 264 (1990): 2663–70 (discussed at notes 86–96 and accompanying text). The AMA states that a physician's duty “is not to dictate the pregnant woman's decision, but to ensure that she is provided with the appropriate information to make an informed decision.” Doe, 632 N.E.2d at 335.

Doe, 632 N.E.2d at 333.

Brooks, 205 N.E.2d 435.

Not only does a cesarean section carry greater risks than a blood transfusion, but also the cesarean section in Doe was recommended wholly to save the life of the fetus. The physicians involved gave no indication that the pregnant woman would not survive a vaginal delivery. Therefore, the judge was presented with a request to order Ms. Doe to undergo a procedure that was not without risks, purely to benefit the fetus. In addition, Doe did not involve an emergency petition, whereas transfusion cases almost always arise when death is imminent. Therefore, the judge was not faced with a situation where his failure to order treatment could result in the immediate death of the fetus, the pregnant woman, or both.

See In re Fetus Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997).

See id. at 399. Robert Walsh was described by the court as an osteopathic obstetrician/gynecologist who had been in practice for two years. He was not board certified.

See id.

See id.

See id.

See id. at 400.

See id.

See id.

See Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990).

Brown, 689 N.E.2d at 405.

See id. at 401.

See id. at 402.

See id. at 403.

See id.

See id.

See id.

See id.

For instance, in In re Dubreuil, 629 So. 2d 819 (Fla. 1993), the district court had ordered that a blood transfusion be administered to a Jehovah's Witness who was the mother of four minor children, including a newborn. The district court based its decision, in part, on the potential that the four young children would be abandoned should their mother die. Both the district court and the Florida Court of Appeals, which affirmed the decision, ignored the other family members available to care for the children, including the woman's estranged husband and her mother. The Florida Supreme Court, reversing the decision of the lower court, noted: “[The district court's] rationale could be read by some to perpetuate the damaging stereotype that a mother's role is one of care giver, and the father's role is that of an apathetic, irresponsible, or unfit parent. The law has evolved to move away from inappropriate gender-based distinctions.” Id. at 828.

Brown, 689 N.E.2d at 404.

Roe v. Wade, 410 U.S. 113 (1973).

See, for example, Arch , supra note 29, at 648–50; and Gallagher , supra note 29, at 15–17.

Brown, 689 N.E.2d at 404–05. The Brown court did not elaborate on this point, which, while interesting, is beyond the scope of this article.

See id. at 404.

See id. at 405.

See id.

See id.

Id.

The court's opinion did not attempt to reconcile its finding with the Illinois Living Will Statute, which provides that a woman's validly executed living will shall have no effect during pregnancy. This exception in the Living Will Statute suggests a state policy of placing a fetus's well-being before a mother's right to refuse treatment. Perhaps the Doe court did not address this issue because the Illinois Supreme Court had ruled in 1990, in In re Estate of Greenspan, 558 N.E.2d 1194 (Ill. 1990), that the Living Will Statute did not apply to a patient who had never executed a living will. In that case, the public guardian sought to remove artificial nutrition and hydration from Mr. Greenspan, who had remained in a persistent vegetative state for five years. The Living Will Statute forbids withdrawal of nutrition and hydration pursuant to a living will if death would result solely from such withdrawal, rather than from an existing terminal condition. Because Greenspan had never executed a living will, the court found this prohibition inapplicable but did deem it instructive in deciding the case.

See ACOG Committee on Ethics, Committee Opinion, “Patient Choice: Maternal-Fetal Conflict” (Washington, D.C.: American College of Obstetrics and Gynecology, 1987).

Id. at 1.

Id. at 2.

Id.

See id.

Id.

Id.

See Cole , supra note 47, at 2670.

See id. at 2664.

In re Fetus Brown, 689 N.E.2d 397, 405 (Ill. App. Ct. 1997).

Cole , supra note 47, at 2664.

See id.

See id. at 2665.

See id.

See id.

Id. at 2666.

See id.

See id.

See Kolder V. Gallagher J. Parsons M. , “Court-Ordered Obstetrical Interventions,” N. Engl. J. Med., 316 (1987): 1192–96 (The researchers sampled 80 percent of the heads of all fellowship programs in maternal-fetal medicine listed in the Directory of Fellowship Programs in Maternal-Fetal Medicine and 100 percent of the directors of maternal-fetal medicine divisions in obstetrics and gynecology residency programs in 14 states not represented in the first group. The cumulative response rate was 83 percent, covering 45 states and the District of Columbia.).

See id.

See id. at 1193.

See id.

See id.

See id. Despite this fairly strong pattern of paternalism on the part of the responding physicians, none of the respondents was aware of a case in which a doctor had been sued for failure to seek a court order. Id. It is clear, then, that physicians who support coerced treatment do so not for fear of legal liability if they fail to act, but because they believe that their patients should always comply with a physician's prescribed course of treatment. Perhaps, too, well-intentioned obstetricians in particular are prone to this sort of paternalism out of concern for their second patient, the fetus, who is unable to voice an opinion regarding treatment.

See generally Chervenak McCullough , supra note 8. Frank Chervenak and Laurence McCullough have expanded on this discussion in Chervenak F. McCullough's L. Ethics in Obstetrics and Gynecology (New York: Oxford University Press, 1994).

Chervenak McCullough , supra note 8, at 16.

See id. at 12–13.

See id. at 17.

Id.

Id. at 14.

Id. at 13.

See id. at 15.

Id.

Id. at 16.

See Jurow Paul , supra note 4, at 596–97.

The authors refer to Application of President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964); see also infra notes 121–32 and accompanying text.

See Jurow Paul , supra note 4, at 598. Even if Georgetown were valid precedent for forced intervention, it would not support a claim for homicide in the absence of such intervention, as explained above and as expressed in the Georgetown decision.

See LaFave W. Scott A. Jr. , Criminal Law (St. Paul: West, 2d ed., 1986): At 611.

See generally Cole , supra note 47.

See Roe v. Wade, 410 U.S. 113, 157 (1973).

Application of President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir. 1964).

Jefferson v. Griffin Spalding County Hospital Authority, 274 S.E.2d 457 (Ga. 1981).

See Georgetown, 331 F.2d 1000.

See id. at 1002.

Id. at 1009.

Id. at 1009–10.

See, for example, Jurow Paul , supra note 4; Sacks Koppes (1986), supra note 4, at 485; and Sacks Koppes (1994), supra note 4, at 454.

See, for example, Furrow B.R. , Bioethics: Health Care Law and Ethics (St. Paul: West, 3d ed., 1997): At 243.

The patient requested a rehearing, but the full panel refused, with five of the nine judges expressing opinions that the matter was moot or that the procedural posture was so inherently flawed as to be incapable of further review. See Georgetown, 331 F.2d at 1016.

See Brief of Amicus Curiae Watchtower Bible and Tract Society at 2–3, In re Fetus Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997) (No. 96–2316). For an excellent discussion of the analysis offered by Judge Skelly Wright, see Davis D. , “Does ‘No’ Mean ‘Yes’? The Continuing Problem of Jehovah's Witnesses and Refusal of Blood Products,” Second Opinion, 19, no. 3 (1994): 35–43. Deena Davis points out that there is no official position of the Jehovah's Witnesses that distinguishes the consequences of transfusions that are willingly accepted from transfusions that are forced; both are considered forbidden. She determines that there may be a number of Jehovah's Witnesses who refuse blood but hope to be forced to accept it. They fear that they will die without a transfusion, but worry about the consequences in the afterlife as well as the stigma during this life if they agree to be transfused. Davis concludes that it is dangerous as a policy matter for physicians and hospitals to assume that every Jehovah's Witness who refuses blood is not sincere, even though this approach will save some lives. She warns that encouraging such assumptions will lead to the belief that physicians can ignore the express wishes of other patients. Therefore, Davis argues, to accord individual autonomy the respect it deserves, physicians must place on the individual patient the responsibility to say what she means, for “only she can weigh her religious convictions against the possibility of death.” Id. at 42.

See, for example, Public Health Trust of Dade County v. Wons, 541 So. 2d 96 (Fla. 1989).

See, for example, In re Dubreuil, 629 So. 2d 819, 828 (Fla. 1993).

In re Dubreuil, 603 So. 2d 538, 548 (Fla. App. Ct. 1992) (Warner, J., dissenting).

Dubreuil, 629 So. 2d at 827.

Jefferson v. Griffin Spalding County Hospital Authority, 274 S.E.2d 457 (Ga. 1981).

Id. at 460.

Id. at 459.

Id. at 458. The court's order was not enforced, and Ms. Jefferson vaginally delivered a healthy baby without complications. See supra note 7.

See, for example, In re Fetus Brown, 689 N.E.2d 397, 405 (Ill. App. Ct. 1997).

Jefferson, 274 S.E.2d at 460.

Id. at 458.

Id. at 461 (concurring opinion).

Id. at 462.

Roe v. Wade, 410 U.S. 113, 157 (1973).

Id. at 162.

The Illinois Court of Appeals is not alone in upholding a pregnant woman's right to refuse invasive treatment. In 1990, the District of Columbia Court of Appeals decided the much discussed case of In re A.C., 573 A.2d 1235 (D.C. 1990). In that case, a twenty-seven-year-old cancer victim was forced to undergo a cesarean section at twenty-five weeks' gestation in an attempt to save the fetus before A.C.'s death. After the death of both mother and child, the appellate court found that the trial court had erred in balancing A.C.'s rights against those of the fetus. The appellate court ruled that A.C.'s wishes should have been ascertained and that, absent “a situation extraordinary or compelling enough to justify a massive intrusion into a person's body,” the mother's wishes should prevail. Id. at 1252. Also underpinning the court's holding was its observation that

enforcement could be accomplished only through physical force or its equivalent. A.C. would have to be fastened with restraints on the operating table, or perhaps involuntarily rendered unconscious by forcibly injecting her with an anesthetic, and then subjected to unwanted, major surgery. Such actions would surely give one pause in a civilized society, especially when A.C. had done no wrong.

Id. at 1264 n.8.

Despite its holding, the court expressly declined to overrule an earlier decision by the District of Columbia Superior Court granting an order for a forced cesarean delivery due to the physician's concerns that sepsis could occur and cause the death of the fetus. In re Madyun, 114 Daily Washington Law Reporter 2233 (1986). The court noted:.

There are substantial factual differences between Madyun and the present case. … In Madyun … there was no real conflict between the interests of mother and fetus; on the contrary, there was strong evidence that the proposed cesarean would be beneficial to both. … If another Madyun-type case ever comes before this court, its result may well depend on facts that we cannot now foresee. For that reason (among others), we defer until another day any discussion of whether Madyun was rightly or wrongly decided.

Despite the court's refusal to overrule Madyun, because the A.C. decision occurred four years after Madyun, many practicing attorneys view it as evidence of the trend away from forced treatment of pregnant women.

Crouse-Irving Memorial Hospital, Inc. v. Paddock, 485 N.Y.S.2d. 443 (N.Y. Sup. Ct. 1985). The brief opinion does not mention whether the defendant was a Jehovah's Witness; it merely refers to her religious beliefs.

Crouse was not the first New York case involving a competent adult's right to refuse a blood transfusion. In 1976, the Supreme Court, Special Term, Suffolk County, heard the application of the Brunswick Hospital Center for an order authorizing a blood transfusion of twenty-three-year-old Kathleen Melideo. In re Melideo, 390 N.Y.S.2d 523 (N.Y. Sup. Ct. 1976). Melideo was suffering from a uterine hemorrhage after undergoing a diagnostic dilation and curettage. She continued to refuse recommended blood transfusions because she was a Jehovah's Witness. In a one-page opinion, the New York court refused to enter the order. Its brief decision was based on the patient's common law right of self-determination and her First Amendment free exercise right. The court cautioned that a case involving a parent or a pregnant woman would be distinguishable, thus implying that it would have found differently on different facts. Id.

Crouse, 485 N.Y.S.2d at 445.

See id.

Id. at 445, citing Sharpe D.J. Hargest R.F. III , “Life-saving Treatment for Unwilling Patients,” Fordham Law Review, 36 (1967–68): 695–706, at 701.

In fact, the recent opinion of Stamford Hospital v. Vega, 674 A.2d 821 (Conn. 1996), made precisely the opposite finding in hearing the case of a hospital that had petitioned the court for the forcible transfusion of a young mother. It noted: “The hospital's interests were sufficiently protected by Vega's informed choice, and neither it nor the trial court was entitled to override that choice.” Id. at 832. Similarly, the court in In re Dubreuil, 629 So. 2d 819 (Fla. 1993), held:

Patients do not lose their right to make decisions affecting their lives simply by entering a health care facility. Despite concededly good intentions, a health care provider's function is to provide medical treatment in accordance with a patient's wishes and best interests, not as a “substitute parent” supervening the wishes of a competent adult.

Id. at 823.

In re Application of Jamaica Hospital, 491 N.Y.S.2d 898 (N.Y. Sup. Ct. 1985).

See id. at 899.

Id.

Id. at 900.

Id.

Id. at 899.

Application of Winthrop University Hospital, 490 N.Y.S.2d 996, 997 (N.Y. Sup. Ct. 1985).

Id.

See id.

Fosmire v. Nicoleau, 551 N.Y.S.2d 876 (N.Y. App. Div. 1990).

See id. at 879.

Id. at 880.

Id.

See id.

See id. at 882–83.

Although some patients will acquiesce when confronted with a court order, and some physicians will not carry out the court-ordered treatment if the patient does not ultimately agree, the very attempt at obtaining a court order threatens the patient's autonomy.

In re Baby Boy Doe, 632 N.E.2d 326, 328 (Ill. App. Ct. 1994).

Although some patients will accede to treatment once a court issues an order, many will not. See, for example, In re Fetus Brown, 689 N.E.2d 397 (Ill. App. Ct. 1997). Citing In re A.C., 573 A.2d 1235, 1244 (D.C. 1990), the Doe court noted: “We simply cannot envision issuing an order that, if enforced at all, could be enforced only in this fashion.” Doe, 632 N.E.2d at 335.

In at least one case, the pregnant woman left the hospital before her court-ordered transfusion could be accomplished. See Nelson Buggy Weil , supra note 7, at 763 n.229, describing Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson, 201 A.2d 537 (N.J. 1964). In addition to the ethics of court-ordered treatments, there is the question of their effectiveness. As the Brown court observed: “We question the efficacy of a court order requiring a blood transfusion for someone who is facing death.” Brown, 689 N.E.2d at 406. Presumably, the court was referring to efficacy of the court order in convincing the patient to accede to the transfusion: The patient's fear of God's retribution for accepting the transfusion would outweigh her fear of being held in contempt of court for refusing.

See supra notes 79–96 and accompanying text.

See id.

See Kolder Gallagher Parsons , supra note 97, at 1192.

It seems that a majority of even the nonpregnancy refusal of transfusion cases concern women rather than men. It is possible that women tend to refuse blood more often than men. Alternatively, men may refuse blood as often as women, but are less likely to be challenged by physicians regarding their decisions. For an exception, see In re Osborne, 294 A.2d 372 (D.C. 1972). An examination for, and substantiation of, the reasons for this tendency is beyond my scope here, but it should be noted that Osborne arose in 1972, before Cruzan and before the case law in most states had established the right of a competent adult to refuse treatment.

Even though it is the patient's duty to inform the physician of any religious beliefs that may bear on treatment modalities, the careful physician will ask patients in order to avoid the situation that occurred in Brown, where the physician was unaware that his patient was a Jehovah's Witness until a blood transfusion became necessary.

See Shinkman R. , “More Going Bloodless,” Modern Healthcare, Nov. 9, 1998, at 57–58.

See In re Baby Boy Doe, 632 N.E.2d 326, 329 (Ill. App. Ct. 1994).

See Mercy Hospital v. Jackson, 510 A.2d 562, 563 (Md. 1986).

Kolder Gallagher Parsons , supra note 97, at 1195.

See, for example, Doe, 632 N.E.2d. 326. When the patient was examined at thirty-five weeks, her obstetrician/gynecologist recommended either immediate induction of labor or a cesarean section. Two weeks later, he advised that a cesarean section was the only option for a safe delivery. By the time he appeared in court, Dr. Meserow testified that the fetus's chances of surviving a natural labor were almost zero percent. Id. at 327–28.

A second maternal-fetal medicine specialist concurred with Meserow.

See Stallman v. Youngquist, 562 N.E.2d 355, 359 (Ill. 1998).

See, for example, Raleigh Fitkin-Paul Morgan Memorial Hospital v. Anderson , 201 A.2d. 537 (N.J. 1964).