Wouldn't the pregnant girl be charged with murder?

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I really enjoyed this episode, but got a little confused at all Luka had to go through to try and get the pregnant girl to let them operate to save her baby. If the stab wound was self inflicted, and the baby died because she wouldn't let them save it, wouldn't she be charged with murder? I think I saw a similar situation on "The Practice" once where a girl stabbed herself in the stomach and lost her baby, and she was convicted of murder. I am pretty sure that if Luka had presented that possible senario to the patient she would have let them operate.

Great treatment of the Carter storyline, it was great to finally see some resolution. (Sort of)

Did anyone else notice that Mark was wearing what looked like gardening clogs? What was up with that?

-- Marty (angellmm@earthlink.net), May 18, 2000


As they mentioned, there is no way to tell if that stab wound was self inflicted. Personally, I think she should be charged with murder for not agreeing to a C-section, but that is just me and I am sure there is no legal issue to support that. This story line really got to me. That girl made me sooooo mad! I love Luka, but am glad that he stopped short of performing the c-section. As Cleo mentioned, he could have lost his license. It was so sad that legal called back and it was too late!

BTW I noticed those yucky clogs too! :)

-- amanda (amanda.rehm@home.com), May 19, 2000.

That sounds like a pretty bizarre episode of "The Practice." Are you sure she wasn't convicted of something other than murder?

To be charged with murder, you have to kill a person. U.S. law does not recognize fetuses as persons. (As an aside, the equivalance of abortion and murder is not universal moral law; different cultures have different views of it. For example, in the Talmud, the penalty for assaulting a pregnant womand and thus inducing miscarriage is to pay financial damages to her husband -- very, very different from the harsh penalties for murder.)

Under U.S. law, killing a fetus is legal; it's called abortion. Yes, even in the third trimester; that's "late term abortion," and almost everyone (even strongly pro-choice people like myself) would agree that doing it deliberately to a mostly-healthy fetus when there are other options that are safer to both mother and fetus is inhumane and morally wrong.

I think that patient was clearly delusional (she didn't seem to be faking it when she said she wasn't pregnant) and dissociated from reality -- or else extremely cruel without being pathologically unfeeling -- but she was not a murderer.

-- Elizabeth (ebs42@yahoo.com), May 19, 2000.

Just a side note here...There are some states that view a fetus of a certain gestation to be a viable person. I think it was in Ohio, but a woman was charged with vehicular manslaughter for causing a wreck in which a woman that was like 8 months pregnant lost her baby. Kind of weird how different laws and states view a fetus as a "person".

-- amanda (amanda.rehm@home.com), May 19, 2000.

It's a state by state thing- in NY, MA and many other states, if the fetus is developed enough to survive outside the womb (generally around 25-27 weeks) they are considered for all intents and purposes a full fledged human being. As for this girl, they had no proof that she has stabbed herself fo they really couldn't charge her with anything-unbelievable awful, but unfortunelatly true!GRRRRRRRR! I hate to see Luka in pain, so having to watch his face when he delivered that stillborn child was just awful! Give the guy a happy moment or two next season...PLEASE!

-- Kristie Torres (grissel@bellsouth.net), May 19, 2000.

I was going to mention the same thing, Amanda. I've heard of several states trying to pass laws like that, where if a pregnant woman is attacked or killed in a car wreck, etc. that the person could be charged with double murder. I'm not sure exactly which states, but I have heard that. If the US law doesn't recognize a fetus as a person, it should - especially in late term, and especially considering that babies can survive outside the womb even if they are born 2-3 months premature.

Regarding those clogs - I have also seen Carol and Lucy wearing clogs like that in different episodes. They sure do not look like comfortable shoes for a doctor to be wearing on their feet all day!

-- Melanie (msintn@hotmail.com), May 19, 2000.

Those clogs are very weird,(and on Mark!! Men wearing clogs gives me the willies!) but believe it or not they are some of the most comfortable shoes out there. That's why they're popular with medical professionals who are on their feet a lot. They are also good for your back I think.

-- S. Trelles (trelles@ix.netcom.com), May 19, 2000.

As for the clogs - yes, they are gardening clogs. They are made by Birkenstock, they are very comfortable, and lots of docs. and nurses wear them. The lining can be removed and they can be washed (in the dishwasher, no less) - so if someone is around alot of blood, they prefer this type of shoe than to the leather type.

-- Chava (ChavaW68@aol.com), May 19, 2000.

what i was wondering was this: they couldve done a c-section if the mother's life was in danger. so, if the placenta was broken or whatever, then wouldnt the mother bleed to death? obviously she didnt, but you would think that might happen.

-- ALexis Springer (lexicat1@webtv.net), May 19, 2000.

ps: nursmates also makes a clog type shoe for nurses. ;ots of mnds wear them, and they dont look very somfortable, but all the nurses i know that wear them, swear by them, they say its the most comfy shoe they have ever had.

-- ALexis Springer (lexicat1@webtv.net), May 19, 2000.

OMG i jsut saw my post, and all them typos!! LOL, what IS wrong with my keyboard tonight, what i was trying to say is that lots of my friends wear them Nursemates clogs and they swear by them!! (comfort-wise)

-- ALexis Springer (lexicat1@webtv.net), May 19, 2000.

i saw that eppy of the practice too and if i remember correctly they had proof that the girl stabbed herself intentionally. plus she confessed cause that icy bitch the prosecutor lied and said she had an abortion when she was young.

-- dawn (qstnevrythng@hotmail.com), May 19, 2000.

By the end of this episode I just felt numb. My son was born at 8 months gestation and he was very viable! I get very worried anymore when I hear that a pregnant woman is coming into the ER, I just know the baby will not make it. It was terrible to watch Luka deliver the dead baby. That poor guy's life seems so rough. He just looks sick and depressed.

-- Rachel (rachelrr@ivillage.com), May 19, 2000.

If the matter had been investigated, I think the girl would have been charged with murder. There are methods to determine whether or not a wound is self-inflicted, so the "no proof" angle doesn't really wash. Plus there was the fact that she didn't seem to have a clue as to what her attacker looked like, except to say that she thought he was "dark-skinned". Remember Susan Smith, the woman who strapped her kids in her car and sent the car into a lake? She originally said her kids were kidnapped by a "black guy". Reminded me of that. And her frantic refusal to have a c-section seemed very deliberate. She WANTED that baby to die. When a situation seems somehow stange or not quite right, cops call it "hinky". This situation had hinky written all over it. A good investigator would have been able to make a solid case for murder.

-- Cynthia (cherbert@richmond.edu), May 19, 2000.

About the mother bleeding to death from the placenta injury - I /think/ they said it was a CLOT in the placenta causing the problems. So it wasn't actively bleeding (which is why the mother's life wasn't in danger) but the clot was preventing at least some of the blood and oxygen from getting to the baby.

-- Lynn (lynn@wordsmyth.org), May 19, 2000.

I just think that Luka was so wrong on this issue. You don't have to like it but there was no proof (or even evidence that I could tell) that she did it herself. The idea that you should be able to force someone to have an operation thay don't want is horrible.

This is not to say I am not sympathetic to the baby's plight. It's just that it was not Luka's decision to make.

-- Rusty Priske (rusty.priske@hrdc-drhc.gc.ca), May 19, 2000.

I was very surprised that at 8 months, the baby wasn't considered as a human being. A baby can be delivered at 8 months and be perfectly fine (as Rachel said it) so it is a human being. I am completely pro-choice but there is a limit. I think this woman kills her baby. She just cared about herself. I was so angry. I couldn't understand how someone can do that!! I hoped until the last moment she would change her mind or she would be declared 'incompetent' so that the baby can be saved. But when Luka began the procedure to do the C-Section, it seemed so wrong to me. I was relieved that Cleo convinced him not to do it.

-- Delphine Kerzerho (delphine@cancerboard.ab.ca), May 19, 2000.

I think the fact that the judge did grant the order that Luka wanted (though it arrived too late unfortunately), says that there may have been SOME proof that she inflicted the wound herself and thus she may have been able to be tried for murder (though with our current laws that wouldn't happen because everyone is too concerned that doing so would set a precedent for overturning Roe v. Wade...In Milwaukee a few years ago a woman was accused of murder for taking cocaine while she knew she was pregnant, but I don't think she was found guilty. If she was they overturned it on appeal.) Think about it...the girl was attacked by someone with a knife and he only stabbed her ONCE (just so happened to strike the baby and not fatally injure her?), she gave a very vague description of the attacker, she didn't KNOW she was 8 months pregnant??????...I think Luka was right in doing everything that he could to save that baby's life. I think that was his duty as a doctor (they are trained to save lives, remember).

HOWEVER, I'm glad that he eventually did the right thing by not doing the C-section. He's an excellent doctor, and it would have cost him his license. He didn't have the right to go against her wishes no matter how much he hated the idea of letting that baby die.

Now, I believe that life begins at conception (after all, what makes it a fetus inside the womb and a baby outside the womb? What did we all start as, but a cluster of LIVING cells?). It was so hard to watch Luka have to deliver a stillborn baby, when she could have just delivered the baby and given it up for adoption. Her parents didn't need to know about it and she could have saved a life. It was so sad to watch him take the baby to the warmer as if he could bring the baby back to life. I'm sure he was thinking about his own lost children and perhaps even Carol's babies. What a sad, sad scene.

-- cherry (hoffner@mail.icongrp.com), May 19, 2000.

I agree, Delphine. I think that what that lady did to her baby was horrible-- but then, we shouldn't be surprised. After all, abortion happens everywhere and is perfectly legal and THAT isn't called murder. It's sad but true. So if people can kill their babies by aborting them what THE HECK is wrong with stabbing the baby to death? I think ER did a pretty good portrayal of the lack of morals in this country. Plus, what if the lady had waited a month until the baby was born and stabbed it then? That would have been murder. Something is fundemently wrong with society and people that go around killing babies. Where's the line between killing people and "fetuses"? Is it or isn't it murder? If she had an abortion the baby would have died anyway-- she just found a cheaper way to do it. That's sad.

-- Kim (ILuvSnowB@aol.com), May 19, 2000.

My 3-year old son was adopted as an infant. His birthmother was a college student who denied her pregnancy (even to herself)up to her seventh month. I was sick inside to think that that adorable, sunshiney child who gives me sloppy good-night kisses and wants me to sing the Barney song to him could have been that stillborn baby boy. Thank God, his birthmother made a choice they BOTH could live with. After last night's episode, you'd better believe I gave him some extra kisses!

-- Deb Wissner (RevRND@juno.com), May 19, 2000.

I really don't think this discussion forum is an appropriate place to get deeply into the abortion issue. But as far as this episode of the show is concerned, I was wondering the same thing aa the person who posted this thread. After a certain point, a fetus is LEGALLY considered viable, and if it's illegal to obtain an abortion at that stage, I'd think it was also illegal not to save the fetus if it was in danger. I don't know what the laws are in Illinois, though. Apparently there is no 24-hour waiting period for abortions, as Abby got that overworked mother an abortion right away, in an episode several weeks ago. And maybe the laws in this area also say that a fetus is still a fetus, not a human whose life is to be saved, right up until birth. I find this hard to believe, but it could be the case. Is there anyone from Illinois who knows about that state's laws regarding abortion/fetal care?

-- Cecelia (evilstoat@hotmail.com), May 19, 2000.

I truly hated what happened with the baby in the epi, but I don't get much of a sense in the posts above that many people consider her to be a very sick individual. I do and I think that's what the judge finally gave the order to perform the surgery for, to save the baby because she couldn't make that decision in her current state (even though pscyh said something different). The way she continually said to not call her family was truly eerie (sp) and made me wonder what kind of issues her family of origin had that she couldn't let them come to her when she was in such need (and had probably just stabbed herself). There has to be a heck of a story there. I doubt we'll see her again, but hope we learn more next season about who she was and why. Maybe we will because of the impact the situation had on Luka. I guess what I'm saying is she did a horrible thing as most of us would agree, but something is truly wrong with her to have done it.

-- Diana (dilynne@juno.com), May 19, 2000.

I agree with you, Diana. I thought her behavior seemed not unlike those weird cases one reads about from time to time in which, for example, a troubled teen who no one knew was pregnant has a baby in the bathroom at prom, suffocates it, and returns to the dance floor. Doing that would clearly be pretty consistent with being quite dissociated from reality, as I believe this girl was. (From what I've read, the girls who do things like that talk about their actions in almost psychotic terms -- as if they didn't feel like it was them doing it, they felt like they were watching themselves rather than really there, etc.)

I thought this thread was intended about her legal status (criminal or not) rather than her mental health status.

-- Elizabeth (ebs42@yahoo.com), May 19, 2000.

But can you truly separate the legal (criminal) from the mental health status? It would be a major consideration of the court...and probably the defense her lawyers would present...if she was charged and tried for murder.

-- Diana (dilynne@juno.com), May 19, 2000.

if she didnt really think she was pregnant, then why did she stab her baby to get rid of it? LOL, she KNEW all along, she was either in denial, or lying, not MENTAL. right away she said "dont tell my parents" she wasnt that shocked when they told her...she didnt think it over, she just wanted rid of it!!

-- ALexis Springer (lexicat1@webtv.net), May 20, 2000.

She denied her pregnancy, refused to have her family notified, refused the C-section and had possibly stabbed herself in the abdomen. I wonder if anyone else thougt she seemed like a victim of incest?

-- LD (L5MEAD@NETSCAPE.NET), May 20, 2000.

Whether or not she was a victim of incest, however sad the possibility, doesn't give her the excuse to kill her own child. [If] She was a victim once, but the child isn't guilty for that. Why make another victim?

-- Kim (ILuvSnowB@aol.com), May 20, 2000.

I think the girl should be charged with murder, but if you look at REAL life with REAL people, not actors and actresses, you'd see that this thing happens all the time- millions of children killed a year. IT is not considered murder because some big shot says it sin't. So, this is my opinion, that she should be charged with murder, but she won't be becasue it's HER body and HER right, and nobody gives a rip about what the CHILD- not the piece of tissue-in her body thinks about it.

-- Sonya (Carter'schick@hotmail.com), May 20, 2000.

As I said above, I really don't think it's appropriate to spout off on the abortion issue in general here--this is a discussion group about a TV show, after all. But I was serious in my question, What are the laws in Illinois about abortion, the cutoff point where abortion becomes illegal, and so forth. If the woman was 32 weeks pregnant, LEGALLY I would think that she could not refuse care for the infant, though it was still in the womb. Is there anyone with a coherent, factual piece of information about that? I realize that this issue raises very strong emotions in all people, on both sides of the abortion issue, but I'm just wondering about what happened in this episode, and how true to life it really could be. If anyone can answer this without getting too emotional, I'd be interested.

-- Cecelia (evilstoat@hotmail.com), May 20, 2000.

Also, right on, Deb! My sister-in-law hid HER pregnancy for seven months. I wouldn't trade anything in the world for knowing the child that she had!

-- Sonya (Carter'schick@hotmail.com), May 20, 2000.

Right on, Sonya!! I totally agree. Ya' have to think "what would the baby say? Would he just go 'ok' if we told him his mom didn't want him and so we were going to kill him/her?" I think it is pitiful the way people are excusing that lady. Mentally disturbed or not, raped or not, victim of incest or not, the baby wasn't guilty for any of it, and the lady shouldn't take out her anger on the baby or find excuses to kill it. It's wrong, that's all. You people ever head of MORALS?

-- Marie (cartersbabe@aol.com), May 20, 2000.

Cecelia, I just looked up on the NARAL site about abortion in IL. They have no waiting period and no parental consent law. It mentioned that IL has many minors that come from surrounding states to get an abortion due to the lax laws. They are one of 18 states that does not have a law against the partial birth abortions.

-- amanda (amanda.rehm@home.com), May 20, 2000.

Thanks Amanda, I really wouldn't have known where to look. That's pretty frightening...But the law is the law. So I guess that means that you can have an abortion in Illinois right up until you're ready to give birth? And I guess that means that the girl can NOT be charged with murder in the state of Illinois. That answers that...Although I know there must be many, many people who feel that she SHOULD be so charged.

-- Cecelia (evilstoat@hotmail.com), May 20, 2000.

Elizabeth, you mentioned above that in Jewish law, causing the death of a fetus is punishable by a fine. That is incorrect. A fine is imposed if no harm comes to the baby. If the fetus is killed, the punishment is death. I can find the supporting text if anyone wants it.

-- joy (joygirl01@yahoo.com), May 20, 2000.

Wow, which site is that Amanda? I didn't know there was ANYWHERE a minor could go to have an abortion w/out parental consent! By the way, wasn't that girl over 18? Plus, she didn't have an abortion!! If she could have, than why would she stab herself? I'm not saying abortion's right; it's not... I'm saying that the girl made no sense because she chose to stab herself when she could have had an abortion. But then, there's always the fact that you have to pay someone to kill your baby, where as when you kill it yourself you don't have to pay anything. But which site was that, I'd like to look at it...

-- Marie (cartersbabe@aol.com), May 20, 2000.

I'd like to see the site too...And Joy, I'd also be interested in the text of Jewish law that mentions this. I find that sort of thing fascinating.

-- Cecelia (evilstoat@hotmail.com), May 20, 2000.

The site I checked on was www.naral.org. There is a lot of info there and you can check state by state.

-- amanda (amanda.rehm@home.com), May 20, 2000.

I, too, began to find it very odd that no one was exploring with the young woman the reason behind her seemingly panicky refusal to allow her baby to be saved. Rape? Incest? An abusive relationship with the baby's father? There had to be much, much more to her story. 'Course, it's only a one-hour show, but in *real* life, I'd hope there would be more attention to caring for this woman's obviously distressed psyche. Who knows, that might have been what could have saved her baby, too.

-- Deb (RevRND@juno.com), May 20, 2000.

I think if this hadn't been the season finale, focusing on Carter, they would have gone a little more in depth with this young woman's story. It's the sort of thing that (dare I say her name?) Carol would have been good at--sitting with her, talking with her.

-- Cecelia (evilstoat@hotmail.com), May 20, 2000.

Joy, I was wrong about it being in the Talmud, so the halakhah (Jewish law) may be as you cite. But the quite I was thinking about does exist -- in the Bible. ("When men fight, and one of them pushes a pregnant woman and a miscarriage results, but no other damage ensues, the one responsible shall be figned according as the woman's husband may exact from him, the payment to be based on reckoning." Exodus 21:22) I'd be interested in your opposing text source, if you care to share it.

-- Elizabeth (ebs42@yahoo.com), May 21, 2000.

This ia about the rigths of the unborn and it is a grey and oftern emotive subject. in many aspects of law a child is not a child till it has been born. But poor old Luka was bound by legal obligations and it is not his fault. I don't agree with that aspect of law but understand it. I considerd all my children to be people before they where born to the point that with my last child his birth was a non event to me. He was a part of my family and a part of our lives all through the pregancy. I felt no difrent about him the day before he was born when he was born it simply ment we got to see him and hold him but he had been there for the last nine months. I felt sorry for the mother it is sad to see that for her she had grown to resent the child not love it.

-- kerri (kmckenzie@one.net.au), May 21, 2000.

Right on Kerri! I totally, totally agree. When my little sister was in my mom's womb, I was so totally thrilled and there was a real bond before she was born! From seeing her picture (ultrasound) to feeling her kick my mom's stomach, I loved her and couldn't wait to see what she looked like-- I was so thrilled when she was born and she had red hair like me! I think that it is sad that people can live so selfish a lifestyle that if a baby is "inconvinient" they can legally kill it. The lady on ER obviously should have thought more throughly.

-- Marie (cartersbabe@aol.com), May 21, 2000.

Yes Elizabeth and it also says in Psalms 139:13 "for You created my inmost being, you knit me together in my mother's womb." That kind of cinches the not a baby until birth idea, doesn't it? (unless you choose not to believe in God, if you have made that choice than I am truely sorry for you.)

-- Kim (ILuvSnowB@aol.com), May 21, 2000.

Just for the record: In my original post, I wasn't arguing one way or the other about the morality of abortion or when a fetus becomes a "person"; all I intended when I originally brought up the Biblical reference (which I mistakenly thought was Talmudic) was to inject a little bit of cultural relativism into an issue where people often forget that other people may see the moral question in a completely different way (and thus arrive at a different conclusion). I was not using the Bible as a proof-text, merely an example of how a people different culture (in this case, the ancient Middle East) might see things in a different way from us -- and obviously you don't need to go back in time to find such different beliefs, that was just a good example I happened to be aware of. I'm sorry, I certainly was not trying to launch an involved theological argument.

-- Elizabeth (ebs42@yahoo.com), May 22, 2000.

In that vein, Elizabeth, I wonder what the general feeling is in other countries about this. Embarrassingly, I don't even know if abortion is legal in, say, Great Britain. As I said above, I'm fascinated by other culture's viewpoints (I did take a course in cultural anthropology once). I would've been interested in that text of Jewish law, and I'd also like to hear what other posters have to say who are from different countries. I know there are several people who post to this board from Australia, for instance. Would the pregnant girl be charged with murder down there? We seem to have answered the question for this country--the answer is evidently NO.

-- Cecelia (evilstoat@hotmail.com), May 22, 2000.

Elizabeth, I've no doubt in my mind that you didn't mean any offense by this. But here's the deal: I have often seen the passage in Exodus you mentioned cited as an example of why abortion should not be a big deal, and the reason it bothers me so is that it is taken completely out of context and presented to mean the exact opposite of what it truly says. My version of the Bible, which is differently worded than yours, says this: "If men fight, and hurt a woman with child, so that she gives birth prematurely, yet no harm follows, he shall surely be punished accordinly as the woman's husband imposes on him; and he shall pay as the judges determine." The next verse, which is never included in pro-choicer's arguments, follows, "But if any harm follows, then you shall give life for life." I'm sure if you take a look, you will find it there.

-- joy (joygirl01@yahoo.com), May 22, 2000.

I must say, Joy, that you are right on! May God bless you for showing people truth in their error.

-- Sonya (Carter'schick@hotmail.com), May 23, 2000.

Yeah, Joy!! I totally agree with you and if you're going to take one verse out of the Bible-- you better look at the verses around it and make sure you're not screwing up God's Word!! (that wasn't meant for you, Joy)

-- Lauren (whateverchick@aol.com), May 23, 2000.

Note to Cecelia - abortion certainly is legal in Great Britain! And I think you'd be hard-pressed to find any laws which would support charging this woman with murder. Just an aside - medical abortion procedures(including RU-486, the "abortion pil") are also available in Britain, have been for quite some time (about a decade?). RU-486 probably would have been approved here in Canada by now if it weren't for problems in the U.S. and those influences.

-- Jenn (jenn.curran@sympatico.ca), May 24, 2000.

This is OT but I had to say it...RU-486 can be used for other medical reasons, such as endometriosis, yet isn't legal in the US. It could actually help a woman get pregnant (as in the endometriosis) or keep the ability to be or possibly prevent surgery, but has been viewed narrowly and isn't available for other conditions.

-- Diana (dilynne@juno.com), May 24, 2000.

I did not notice this thread before, but have debated this issue in detail over at the Mighty Big TV Website forums under a thread in "Doctors" called Luka Right or Wrong on Both counts? You can read the whole discussion there, which includes discussions of the law in Canada, England and France. But since someone asked above what the law is in Illinois, here's what I posted after some research:

Okay, I finally found time to do a little research. Just be forewarned, this will be a long post. Also, there is some reference to abortion rights in the cases I mention. Please do not take this as an argument by me either in support of or in opposition to abortion. I am just reporting on what the law apparently says. Finally, I must remind everyone that although I am a licensed lawyer, I am NOT licensed to practice law in Illinois, and my comments should most emphatically NOT be construed as legal advice.

The statutes and case law I found came off the State of Illinois web page, so if anyone wants a closer look, check out www.state.il.us and go to the legislative site (statutes) or the judicial site (cases). Be aware, however, that most government websites are a little out of date, so there may be an amended statute or a more recent case that is not on the website, and there may be very recent changes to the law out that I did not see. (When I have more time I will try to find out if the law has changed any since 1997. I seriously doubt it, though - there are too many constitutional issues implicated).

I found a case which appears to answer our question - it is called In re Fetus Brown, decided by the Illinois Appellate Court in December 1997. In it, the court stated unequivocally that "the State may not override a pregnant woman's competent treatment decision, including refusal of recommended invasive medical procedures, to potentially save the life of the viable fetus." Another case, In re Baby Boy Doe, 632 N.E.2d 326 (Ill. App. 1994) sounds like it may be even more on point, in that it involved the State's efforts to force a pregnant woman to undergo a cesarean section to preserve the life of her fetus, where her own life was not endangered. Unfortunately, I did not have access to that case from the web, but the Fetus Brown case notes that "the Baby Boy Doe court held that Illinois courts should not engage in a balancing of the maternal and fetal rights such that "a woman's competent choice in refusing medical treatment as invasive as a cesarean section during her pregnancy must be honored, even in circumstances where the choice may be harmful to her fetus.... [A] woman's right to refuse invasive medical treatment, derived from her rights to privacy, bodily integrity, and religious liberty, is not diminished during pregnancy. The woman retains the same right to refuse invasive treatment, even of lifesaving or other beneficial nature, that she can exercise when she is not pregnant. The potential impact upon the fetus is not legally relevant."

Going back to the Fetus Brown case, the issue there was whether the Illinois courts had the power to order a woman to undergo less invasive procedures, such as blood transfusions, to preserve the life of a viable fetus. Fetus Brown involved a woman who was in her 35th week of pregnancy. She was hospitalized for a surgical procedure unrelated to her pregnancy. She was awake for the procedure, and some time during the surgery she began to bleed profusely. Although the doctors explained to her that both her life and that of her unborn child were in danger, she refused to undergo blood transfusions because she was a Jehovah's witness.

The hospital and the state decided to seek a court order to force Mrs. Brown to undergo the blood transfusions to save her life and that of her fetus. A hearing was held, with attorneys present for both the mother and for the state (ordinarily, the court cannot issue such an order without first holding a hearing where the mother's interests are represented). The State (DCFS) filed a petition seeking temporary custody of the unborn fetus so that it could request treatment on his behalf, but the court determined that the Juvenile Court Act did not give DCFS authority to seek custody and act on behalf of a fetus, because a fetus is not included in the definition of a "minor" under the Act (Thus, as the law stood in 1997, DCFS could not seek a court order on behalf of an unborn child. The law may have changed since then, but the statutes currently posted on the State website don't reflect that change).

Nevertheless, the trial court weighed the rights of the mother, the invasiveness of the procedure, and the State's interest in preserving the fetus, and ordered that temporary custody of Fetus Brown be given to the hospital administrator, who would have authority to consent to blood transfusions for the mother. The guardian consented to the transfusions, and the mother was "forcibly restrained, overpowered and sedated" (how's that for a mental picture?) so that she could be given six units of blood. She survived, as did the fetus, who was born healthy four days later. The mother then appealed the correctness of the trial court's decision.

The appellate court reversed the trial court, concluding that it had acted improperly in forcing the mother to undergo treatment against her will. Quoting the United States Supreme Court's decision in Planned Parenthood v. Casey, the court noted:

"the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from the beginning of the human race been endured by woman with a pride that ennobles her in the eyes of others and gives to the infant a bond of love cannot alone be grounds for the State to insist she make the sacrifice. Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role, however dominant that vision has been in the course of our history and our culture."

In concluding that the mother's rights superseded those of the fetus, the court discussed the factors to be weighed in determining whether the State ought to be permitted to override a person's right to refuse medical treatment. The factors included: the preservation of life, the prevention of suicide, the protection of third parties, and the ethical integrity of the medical profession. The court concluded that the "preservation of life" factor referred to the mother's life, not that of the fetus, and that as long as the mother was found to be mentally competent (as was the case on ER), she had a right to refuse medical treatment. There was no issue of suicide, because Mrs. Brown willing accepted other types of treatment in an attempt to preserve her life. Similarly, the court determined that the ethical integrity of the medical profession was not at issue. The court explained that "[t]his interest seeks to protect the role of hospitals in fully caring for their patients as well as to promote the prevailing medical ethical standards. Although some hospitals have sought judicial determination of their role in these matters, the American Medical Association Board of Trustees generally recommends that [j] udicial intervention is inappropriate when a woman has made an informed refusal of a medical treatment designed to benefit her fetus.'"

With respect to the protection of third parties, the court considered the impact of Mrs. Brown's decision on her two living children (ages three and eight), and determined that (1) as a mentally competent adult, Mrs. Brown understood the impact on her children; and (2) the children would not be orphaned, because their father could care for them. Finally, the court considered whether the fetus fell within the "protection of third parties" exception. Although the court recognized that Illinois does grant certain rights to an unborn child, it determined that the mother's right to bodily integrity was stronger than the State's interest in protecting the fetus. The court did note, however, that under circumstances such as substance abuse or other abuse by the mother, or an attempt to get a late term abortion where the mother's life was not in danger, there might be grounds for the State to intervene on behalf of the fetus.

Applying those factors to the circumstances presented in May Day, (1) Teenage Mom was found to be a mentally competent adult by Dr. DeRaad; (2) there was no proof to substantiate Luka's belief that T.M. stabbed herself (this may have offered the court a suggestion of abuse, but no real proof); (3) T.M.'s life wasn't in danger, so no preserving life/suicide risk; and (4) the prevailing medical ethic is not to interfere with the mother's right to refuse treatment. Therefore, a real-life court faced with the rule of law set out in Baby Boy Doe and Fetus Brown probably would not have ordered the c- section. It looks like Orman employed some dramatic license in this case to deepen the tragedy of Luka's dilemma. I guess that's why we shouldn't rely on ER, Law and Order, or The Practice for our medical and legal precedents! By the way Northern Dancer - how did the Law & Order ep turn out? Did they successfully prosecute the mother for murder? I may be researching New York case law next:)

On a final note, I learned that Illinois does have laws allowing for the prosecution of persons who injure or kill a viable fetus. The statutes include: Sec. 12-3.1. Battery of an Unborn Child; Sec. 9- 1.2. Intentional Homicide of an Unborn Child; Sec. 9-2.1. Voluntary Manslaughter of an Unborn Child; and Sec. 9-3.2. Involuntary Manslaughter and Reckless Homicide of an Unborn Child. However, these laws specifically exclude a pregnant woman who assaults or kills her own unborn child from prosecution. Therefore T.M. apparently could not have been prosecuted for stabbing her own fetus. However, if she had been assaulted, her assailant could be charged with battery or homicide, whether the baby was "born alive" or not. The laws also exclude prosecution for legally performed abortions to which the pregnant woman has consented, and acts that are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment.

Based on what I read, I stick to most my earlier assertions: (1) DCFS does not presently have purview to intervene for unborn children; (2) the mother would not be charged with assault or murder for the injury/death of her fetus; (3) a judge generally cannot order delivery on the spot - due process requires that a hearing be held, even when death may be imminent (thus my surprise that they got a court order so quickly); (4) the courts are not likely to order an invasive procedure such as a c-section against the mother's will; and (5) Luka would get sued, especially if the AMA has acknowledged that it isn't appropriate to seek a court order to force delivery in these cases.

I am pleased to note, however, that Illinois is progressive in establishing laws to protect fetal rights, and in prosecuting third parties who injure or kill them.

Thanks for *listening*. Hope this isn't too long for everyone. If you want to read In re Fetus Brown, go to http://www.state.il.us/court/appellates/196231 6.txt

-- Beth (BSmith@internet-95.com), July 01, 2000.

In answer to the original question: Unfortunately not.

-- Teddy (richarr@earthlink.net), August 08, 2001.

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