By Courtroom Mama
There are a lot of wonderful things to say about the recent NIH VBAC Consensus Development Conference. Hopefully it will expand access to VBAC by urging ACOG to reconsider the “immediately available” standard, and end the practice of banning VBAC rather than working to lessen the risks through physiological management of labor and other techniques. I’m happy to see that they are finally acknowledging that there is no way to reduce infant mortality to zero, and that the risks inherent in VBAC are no different from the risks of catastrophic outcome in any other delivery, making singling out of VBAC nonsensical. I applaud the panel for that.
But, as a law geek and a birth geek, I have to look a gift horse in the ass here.
When the draft statement first came out, I was a little bit troubled by the part that is now the end of page 14 and top of page 15.
Along these same lines, the 1999 ACOG guideline urged, “After thorough counseling that weighs the individual benefits and risks of VBAC, the ultimate decision to attempt this procedure or undergo a repeat caesarean delivery should be made by the woman and her physician.” Presentations at the conference suggested that this important recommended practice is not uniformly followed, but there are no strong data documenting the extent of this problem.
In my opinion, this portion of the recommendation didn’t strongly address some of the concerns raised in the prior two days about what happens to women who aren’t ideal VBAC candidates and who nevertheless don’t want to have surgery. Surely I wasn’t the only one worried…
Then I looked on Twitter. Apparently, during the final Q&A, Barbara Stratton from ICAN Baltimore had stepped up to the microphone and pressed the panel a bit. Rather than coming out and reassuring the audience that a woman cannot be operated on against her will, as Dr. Anne Lyerly and Dr. Howard Minkoff had unhesitatingly done the day before, the panelists hedged and said that it wasn’t a settled matter. As the archived feed isn’t up as of right now, I would not have believed it if I hadn’t listened to the press telebriefing, in which Susan Jenkins, an attorney with the Big Push for Midwives (and a truly formidable birth activist!) took the issue straight on. (Rough transcript below, and it looks like they will post audio soon too so you don’t have to dial in and listen on the fussy conference line. Emphasis mine. h/t @PushforMidwives)
Kelli Marciel: I think next we will hear from Susan Jenkins with the Big Push for Midwives.
Susan Jenkins: Thank you very much for taking my question. I would like to address the one attorney who is on the panel, and I believe that is Ms. Zimmet from Georgetown University, is she present right now?
Sheila Cohen Zimmet: Yes I am.
SJ: Ms. Zimmet did the panel take into consideration any of the extensive legal and ethical literature on the issue of informed consent? Because to my understanding this morning—and to the great disappointment of many of the people in the audience—the panel did not take a position affirming that pregnant women should be considered persons with constitutional rights the same as any other adult persons and I am wondering that, even though, yes, I agree there are few if any appellate-level rulings other than In Re AC from the District of Columbia addressing this issue specifically in the context of pregnancy, that case did come out squarely in favor of informed refusal always for the mother, but there is extensive law review writing in this area. Is the panel aware of the extensive, and very much pro-informed-refusal, literature among attorneys and law professors in this area?
SZ: Well yes, we did have conversations in that area. We focused on informed consent as a factor that influenced practice and patterns in access to trial of labor; we didn’t see it as our task to resolve that issue and focus on that issue. We think we need to look at the informed consent issue and see what improvements there can be in communication between provider and patient, and tools that can be provided and developed to answer those issues, but we recognize that medico-legal issues involved in informed consent, constitutional issues and ethical issues really, are issues that are answered in a varying fashion in different states and we certainly weren’t in a position to answer them in a consensus panel.
SJ: So in spite of Dr Lyerly’s ethical presentation yesterday, the panel is unwilling to affirm the ethical necessity of recognizing that a woman has an absolute right to informed refusal of a surgical procedure that may cause harm to her?
Laurence B. McCullough: This is Larry McCullough, the ethicist on the panel.
LM: The claim that the right to refuse is absolute is a controversial claim, it’s not at all settled in the law or medical ethics. And that controversy, which is considerable, is way beyond the scope of this group. We did however, strongly emphasize the need for an evidence-based, unbiased approach to the informed consent process to make sure women eligible for TOL would be informed of that alternative and get the information they need to make their own decisions for themselves. There is a strong emphasis on the centrality of informed consent in our conclusions.
SJ: Dr. McCullough, just one quick follow up question, if I may, on that. The conclusions that are reached in the draft, at least the draft opinion that we saw this morning, indicate that the position of the committee is that only where it is considered “medically reasonable”—whatever that means—would the woman have a right to refuse. And the definition of medically reasonable…well, there is no definition of medically reasonable.
LM: Well, actually, there is, and the concept is when the alternatives are roughly medically equivalent. What we said is that shared decision-making should be followed, where the physician refrains from making a recommendation and really helps the woman make a decision that reflects her values and preferences, which is the goal of the informed consent—
SJ: Right, and what if her values and preference is to say “no” at the end of all this?
KM: I’m sorry, this is Kelli, and we have a lot of people waiting on queue
SJ: That’s alright, they’re going to dodge the issue and that’s what I’m going to report to my readers. Thank you.
Hats off to Susan Jenkins for pushing the issue, so to speak. When I heard this, my jaw dropped.
As for the issue of the matter being treated differently state to state… After In re A.C., 573 A.2d 1235 (D.C. 1990), a tragic case in which a young woman with terminal cancer was forced to undergo an unwanted cesarean section that ultimately killed both her and her baby, there was a recognition that what had happened was wrong. Even in the absence of an In re AC for every jurisdiction, the case got enough notoriety that there was a general consensus that something like that shouldn’t happen again. In fact, one of Jill’s recent posts features the ACOG Ethics Committee opinion that cites that case, among others, in rejecting coercive measures to override maternal decision making. It seems that Dr. McCullough is setting aside these established ACOG guidelines and saying that it’s not so clear, and Ms. Zimmet seems to be suggesting that pregnant women’s constitutional rights are a matter to be determined by each state individually. If the recent insanity in Utah and Iowa hasn’t raised alarm bells, it should now.
I can psychically sense someone thinking: but aren’t there some situations in which maybe the mother SHOULD just have the damned surgery? So I’ll answer that right off the bat: acknowledging first that there are few, if any, women who would refuse in all circumstances, yes, there are some situations in which she probably should have surgery; however, I’m not willing to give that the force of law, because even the exalted “evidence-based” standards change, and the most rigorous studies only give you at best a probability of failure or success. Who gets to draw the line, and who says they are right?
For Laura Pemberton, an alleged 4%-6% chance of rupture was too high for a judge, even though her baby was just moments away from birth and nobody had bothered to check her progress to see that she was in good condition before they wheeled her off for a forced cesarean. For Jessie Mae Jefferson, doctors insisted she had a 99% chance of fetal death and a 50% chance of dying herself if she delivered vaginally. Maybe she was lucky, but she was right, and vaginally delivered a healthy baby in hiding. By muddying the waters of medical ethics with so-called maternal-fetal conflict, women are left at the mercy of judges who almost invariably privilege the doctor’s assessment of the risks, even when they are flat wrong, over the woman’s assessment and values.
I don’t know about you, but this unwillingness to commit to the idea that a pregnant woman has the same rights as every other adult of sound mind has got me fired up. If you follow me on Twitter, you saw that I was ready to start a protest. Now, nearly 12 hours later, I’m even more serious about it. If the fact that pregnant women are full people under the constitution is so “unsettled,” I think it’s high time we grabbed our slings, strollers, and picket signs to settle the matter!