By Marshall L. Wilde, LL.M. 2003
Melissa Ann Rowland stands charged of murder by the State of Utah for failing to permit a timely cesarean section that could have saved one of her two babies from in utero death. Her case demonstrates the classic maternal-fetal conflict: Mrs. Rowland refused to consent to a procedure that had substantial risks for her and no benefits, but which could have saved her stillborn child’s life. The charges represent the farthest extent of state action in favor of fetal rights over maternal autonomy and proceed against a jumbled background of contradictory precedents.
The Rowland case presents complicated facts. Melissa Rowland has had a difficult life. Of her six children, she gave two up for adoption, and had one taken away by child protective services. She has had convictions for felony larceny and child endangerment of another child, and been diagnosed with oppositional defiant disorder. Eventually, she ended up in St. George, Utah, when she and her partner ran out of money. She became pregnant with his child.
On January 2, 2004, Dr. Sean Esplin advised her to have an emergency cesarean section based on low amniotic fluid and poor fetal growth and vital signs. Mrs. Rowland left without having the cesarean. Various reports alleged that she had declined the cesarean section because of the scarring it would leave, although Mrs. Rowland has denied this. Other reports state her objection to having a cesarean section at the hospital where Dr. Esplin worked. She eventually consented to a cesarean section on January 13, 2004, delivering one baby daughter and a stillborn male fetus. The daughter tested positive for cocaine and alcohol. The Salt Lake County District Attorney’s Office filed murder charged under a state statute establishing a fetus as a person for the purposes of criminal prosecution and a theory of conduct evincing a depraved indifference to the value of human life.
The legal landscape for prosecutions of mothers for injuries to their children in utero is far from clear. The Supreme Court of the United States recently refused to hear a mother’s appeal of her South Carolina state murder conviction for killing her child through the use of cocaine while pregnant. McKnight v. South Carolina, 124 S. Ct. 101 (2003). The Supreme Court has further declined to hear cases on South Carolina’s definition of a fetus as a person for the purposes of prosecution, effectively upholding them (in non-abortion cases). Whitner v. State, 492 S.E.2d 777 (1997), cert denied, 523 U.S. 1145 (1998). However, an earlier Supreme Court decision overturned the nonconsensual testing of mothers for drugs in South Carolina hospitals, holding they had a right to refuse such tests. Ferguson v. City of Charleston, 532 U.S. 67 (2001). Further, the Supreme Court has stated unequivocally that a state may not prohibit late term abortion (so called “partial birth abortion”), when a mother’s health is at stake. Stenberg v. Carhart, 530 US 914 (2000).
Cases in lower courts have resulted in even more contradictory precedents. The Illinois Appellate Courts have held that a mother has not only the right to refuse to have a cesarean section to benefit her child, but also the right even to refuse a blood transfusion for her fetus’s benefit. In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. 1994) (c-section); In re Fetus Brown, 689 N.E.2d 397 (Ill. App. 1997). Other state courts have refused to allow prosecutions of women for child endangerment for taking drugs while pregnant. Reinesto v. Superior Court, 894 P.2d 733 (Ariz. App. 1995); Johnson v. State, 602 So. 2d 1288 (Fla. 1992). Further, a Florida Court found that a pregnant mother who shot herself could not be held criminally liable (at common law) for the death of her born alive child (who subsequently died from the injuries sustained in the shooting). State v. Ashley, 701 So.2d 338 (Fla. 1997). On the other side, a Federal District Court found no violation of substantive or procedural constitutional rights, nor of any medical duty of care, when a hospital performed an involuntary cesarean section under a court order that gave the mother a chance to be heard, but no right to counsel or other legal rights. Pemberton v. Tallahassee Memorial Regional Medical Center, Inc., 66 F.Supp.2d 1247 (N.D. Fla. 1999). Additionally, criminal laws prohibiting the killing of a fetus have been found to be constitutional. Commonwealth v. Lawrence, 536 N.E.2d 571 (Mass. 1989). The Utah Courts have apparently not addressed the issue. In sum, there is no consistent message coming out of either the state or federal courts with regard to the liability of a mother for the death of a child from failing to consent to medical treatment.
Moving into this uncharted territory, the Utah courts face a thicket of thorny issues, both factual and political. The facts themselves are very much in question. Did Mrs. Rowland refuse the c-section because she did not want the scarring, or because she preferred not to have the procedure because of the risks to her own life and health. C-section carries a small, but real, risk of maternal mortality. Some reports state that Mrs. Rowland simply preferred not to have the child at the particular hospital she was in on January 2. Her choice to have the baby at another facility could impact her intent or degree of recklessness.
The case also raises a number of policy questions. As an initial matter, if Stenberg v. Carhart stands for the proposition that a woman’s health is inviolate, even when balanced with her child’s life, how can that be harmonized with Mrs. Rowland’s prosecution? What would the impact of allowing forcible c-sections be on pregnant women’s decisions to go to the hospital in the first place? Should a woman still have the choice of facility and doctor for her involuntary c-section? Obstetrician/gynecologists have among the highest listing rates in the National Practitioner’s Databank, but this information is not available to the public. Doesn’t a woman facing an involuntary c-section have an overriding need to know this information?
Perhaps the one certain issue in the case is that Mrs. Rowland is a very unfortunate woman. Her history and decisions certainly do not lend themselves to admiration. Back in the ‘60’s, there was a similarly unfortunate man. He had a long criminal history and was accused of breaking into a poolroom with the intent to commit a misdemeanor. He was denied counsel at trial and convicted, despite a surprisingly able pro se defense. Incensed, he sat down in his prison cell and wrote an appeal to the United States Supreme Court. From this unlikeliest of sources, indigents now have the right to appointed counsel recognized by that Court. Similarly, Mrs. Rowland’s case may have profound consequences for our conception of the rights of mothers and children, despite its humble and tragic beginnings.