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Pregnancy and Communicable Disease -- A Thought Experiment:

Say that Mary Moe is pregnant, HIV positive, and planning to take her child to term. Assume also that medical treatment for the HIV during pregnancy can substantially decrease the risk of her communicating the HIV to the soon-to-be-born child. (As best I can tell, that's factually accurate.)

Say also that Mary Moe is infected with some other disease — call it German Measles 2 — that risks causing birth defects in the children of other pregnant women who come into contact with Moe. (The hypothetical disease would differ from traditional German measles in that it would be persistent but asymptomatic in the carrier; in this respect, imagine Moe as a Typhoid Mary for this disease.) Assume also that medical treatment for German Measles 2 can substantially decrease the risk of Moe's communicating German Measles 2 to other women's soon-to-be-born children.

I take it that, by analogy to the vaccination cases, the government may force Moe to take the medical treatment for German Measles 2 (am I right?), to minimize huge health dangers to the soon-to-be-born children of others. True, this is an intrusion into Moe's bodily integrity, but your right to bodily integrity must yield when your body is threatening the spread of disease to others.

If so, can it really be the case that the government nonetheless may not force Moe to take the medical treatment for the HIV, to minimize huge health dangers to her own soon-to-be-born child?

Is Moe's bodily integrity sufficient to justify the harm to the life and bodily integrity of her child — not just to a potential person (which is how the law conceptualizes the fetus before viability), but to a real person who will be born, and who may well be sentenced to a short life and painful death because of Moe's communicating the disease to him?

Say that Moe's child grows up to be, say, ten, but is clearly dying by then. She's not just a fetus or even an infant. She can talk, and ask questions. Here's how the conversation goes:

Child: "Why am I dying?"

You: "Because you got a deadly infection from your mother. Your mother could have taken steps that may well have saved your life, but because of her idiosyncratic view of medicine, she chose not to."

Child: "But wait, why didn't someone stop her from doing this to me?"

You: "Oh, we couldn't do that: She had a constitutional right to infect you with a deadly disease, with no interference from anyone else."

Child: "So if someone is walking around with a communicable disease that would cause birth defects in other people's children, he has a legal right to keep doing that."

You: "Of course not; we could mandate that he be vaccinated, or otherwise treated. But that's only when he's infecting other people's children. When a women is infecting her own child who's still in her womb, she has a constitutional right to do that."

Can that really be right?

[UPDATE: Correct a couple of errors in paragraph 2 -- thanks to the commenters for pointing them out.]

Related Posts (on one page):

  1. Pregnancy and Communicable Disease -- A Thought Experiment:
  2. Do HIV+ Pregnant Women Have a Constitutional Right To Refuse HIV Medication,
H-Bomb (mail):
Hey Professor Volokh,

Just a quick typo:
"Assume also that medical treatment for German Measles 2 can substantially the risk of Moe's communicating the HIV to other women's soon-to-be-born children."

There's probably an "increase" missing after "substantially".
1.4.2006 10:17pm
billb:
Assume also that medical treatment for German Measles 2 can substantially the risk of Moe's communicating the HIV to other women's soon-to-be-born children.


I assume you meant the "German Measles 2" there.
1.4.2006 10:18pm
Dave:
Communicable diseases that the government require vaccinations for can spread rapidly and kill or disable a lot of people. The AIDS-infected baby probably won't live long enough to infect anyone.

So on the one hand, there's a smaller risk in letting someone get AIDS in this situation than in letting them get or retain Measles.

On the other hand, the reason there's a smaller risk is that an innocent person is likely to die so quickly.
1.4.2006 10:20pm
Freder Frederson (mail):
Yet for those who believe that life begins at conception and that Roe v. Wade was decided wrongly, if Moe were suffering from some life threatening disease during her pregnancy which the treatment of which would require aborting her fetus, the government would prevent her from receiving that treatment.

As Thelma said to Louise: "The law's some tricky shit, ain't it?"
1.4.2006 10:35pm
smc78 (mail):
F.F.,

I am quite sure there are plenty of people who would agree with both of your two premises, but disclaim your conclusion. Many who believe that view the life of the mother as a legitimate need for an abortion. Not all, but many. I think your statement casts the net a bit wide.
1.4.2006 10:40pm
ChrisAllan (mail):
The problem with rational arguments to this issue is that they do not take in account that HIV is a politically correct disease. Attempts to compare HIV to the traditional communicable disease such as Measles, TB, Leprosy or Smallpox fail because when HIV/AIDS was first diagnosed it developed an active political base because it was primarily homosexuals that were first infected. If HIV/AIDS had been seen as a communicable disease then there was the possibility that those infected would be diagnosed, quarantined and sent to sanitariums as was done with TB patients 20 years earlier. The ironic thing is that even though the HIV/AIDS lobby would never accept quarantining those infected with the disease, some have called for quarantining those with TB because the HIV positive are more susceptible to TB infection.
1.4.2006 10:46pm
The Original TS (mail):
I think there's at least one significant typo in your hypo. Nonetheless, I get the thrust of your question.

Under the current framework, the answer is that treatment for HIV while pregnant only affects her personal bodily integrity. The risk of spreading a communicable disease to other pregnant women -- and affecting their fetuses -- affects their bodily integrity.

There is a certain slippery slope danger here. Forcing a woman to take drugs to minimize the risk of infecting her unborn child with HIV lies at one end of the spectrum, but it is a spectrum. If the government has that power, why doesn't it have the power to keep her from drinking alcohol while pregnant or to keep her from going scuba diving or rock climbing or any one of a number of other activities that might harm the fetus?
1.4.2006 10:47pm
WillieMcGee:
I'm not familiar with the line of vaccination cases, but does Roe justify treating the two situations differently? In the case where Mary carries a disease that does not threaten a fetus she is carrying but threatens only other people (or their fetuses), Roe and the constitutional right to privacy/control of what Mary may do with her body as it relates to a fetus do not come into play. Thus, the governmental interest in preventing others from getting a serious disease is not counterbalanced by Roe et al, and the government can force Mary to get immunized. But where it is Mary's own fetus that stands to be harmed by her refusal of treatment, perhaps there is an argument that Roe et al come into play, and that as such Mary has a constitutional right to determine what happens to her body insofar as what is being done to her body is motivated by the fact that she is carrying a fetus. That interest would run up against the government's interest in preventing a fetus from contracting AIDS. Mary's interest in that scenario may not necessarily trump the interest in preventing the child from contracting AIDS, but at least it is a counterveiling interest that might support treating the situation differently from the measles case.
1.4.2006 11:03pm
Alex F:
Eugene,

I'm a longtime volokh conspiracy reader, and you've always been my favorite of the bunch, mainly because of the careful logic with which you dispassionately analyze controversial emotional issues that cause many otherwise intelligent people to lose their head. I'm surprised and disappointed to see you indulge in something as cheesy as this little mini-screenplay which is clearly supposed to appeal to emotion, and does not address the legal issue at hand. No law made by man will be perfect, and even the most generally fair laws will at times lead to ugly &infuriating results in individual cases.

I asked this in the other post too, but I'll repeat it here: do you believe it would be constitutional to force women with potentially difficult births to undergo C-sections even if they refuse? (By potentially difficult I mean births where doctors in good faith predict that a regular delivery has a higher chance of resulting in death or severe disability of the child)
1.4.2006 11:11pm
Janey:
Or we could quarantine pregnant women to positively ensure the safety of the fetus.

Babies born with HIV can live well into adulthood with proper treatment. Women born with HIV are now having their own children.

An HIV medication regime is complicated, can be very physically difficult to tolerate, and have potentially dangerous side-effects. This is why we give people a choice about taking medication.

TB is spread through the air, unlike HIV, which is spread through bodily fluids. The decision to quarantine is based on how easily the illness is spread.
1.4.2006 11:24pm
Bruce Hayden (mail) (www):
Janey,

You may be right about quarantine not being called for for HIV/AIDS. However, at least before AIDS, it used to be that STDs were traced by public health authorities in order to identify and notify those infected. Because of the political/gay component of the disease, this was not really done with HIV/AIDS, and as a result, arguably many contacted the disease who would not have, had it been treated as other STDs had been up to that point.
1.4.2006 11:32pm
Mary (mail):
"Is Moe's bodily integrity sufficient to justify the harm to the life and bodily integrity of her child -- not just to a potential person (which is how the law conceptualizes the fetus before viability), but to a real person who will be born, and who may well be sentenced to a short life and painful death because of Moe's communicating the disease to him?"

First, I agree with Alex F. above.
Second, only a true asshole would talk negative to a 10-year-old child like that about her (now dead?) mother.
Third, why are you so certain that society, or doctors, can make the best decisions for this little girl? How committed are they for her entire life? Does society now assume full control and responsibility for such a child?

Isn't this a slippery slope, and where would it end? If a child's health would be better by becoming a college grad, can you force parents to send the kid to school? If society decides your child would be healthier and better by consuming certain things, studies show it, can you force parents to make those choices? If a steroid-like substance has been show to help growth, with no current negative effects known NOW, is it ok to mandate for a smaller child? How would the child be compensated, if at all, if the risks later turn out to have a long-term effect?

You mean well, my friends, but in life there are risks. Your own decisions fall on you and YOUR children, as mine would me and mine. What you value in a child, might not be what I do. You might call me selfish, or question my judgment, but if I am prepared to live and die with my own choices...

Perhaps I would rather have, say, healthy conjoined twins (in hypothetical land again) for 5 years, then risk losing even one of them in an operation. Let's say the risks are exactly equal to whatever other hypothetical you are setting up. If I choose to live with what nature/God gave me, for however long, without taking the risk, who are you to say your decision is better than mine? And isn't that really what you are saying here, Professor? That you know the quantity and quality of life better than the child's mother? Do you think she is just an incubator, or cow, or could there possibly be something there -- still unmeasurable by science -- a bond between the mother and child? Not for me, thank you, mandatory, one-size-fits-all diagnosis and treatment. You do right by your child/children as you see fit, and please allow others to do the same for theirs. If and when a person voluntarily comes in for help/treatment, then you can play GoodGuy and rescue her and her child. Until then, perhaps you could concentrate on helping people asking for your help; last time I looked there were plenty of people who want and need medical treatment to help better their own life and that of their child. Wouldn't it be more effective or better overall to allow her to retain the decision and physical autonomy, and work with her to shape her decision? Forced medical treatment, to me, brings out the flight mechanism, no matter how good your intentions and belief that you know better than her, or perhaps her G-d.
1.4.2006 11:36pm
Robert Romano (www):

I take it that, by analogy to the vaccination cases, the government may force Moe to take the medical treatment for German Measles 2 (am I right?), to minimize huge health dangers to the soon-to-be-born children of others. True, this is an intrusion into Moe's bodily integrity, but your right to bodily integrity must yield when your body is threatening the spread of disease to others.


Well, I would agree. You wouldn't let kids without the proper vaccinations go to a public school. They could get everyone else sick. Also, when a kid is sick at school, the school is supposed to send him or her home, right?

I would additionally propose that drug addicts, who can potentially (and may likely) get other kids addicted, should not go to school either. Along these lines proposed above, would not mandatory drug testing be legitimate? What would be the difference between contagious diseases as a public health risk and the spread of addictive drugs as a public health risk, if testing (and potential vaccinations) can be mandated in the former? Why not testing (and potential treatment) in the latter?

To relate back to the topic, I would also require the pregnant woman with HIV to get the proper treatment so as to spare the life of the unborn baby. She has a moral obligation, which ought to be a legal obligation, to protect the life of her unborn child. What would happen to parents who refused to get their kids proper vaccinations? Shouldn't the child be placed in a foster home and given the proper vaccinations? If pregant women with HIV can give their unborn babies a chance to live, that should be the law.

Not citing any law per se, but this is just how I feel.
1.4.2006 11:37pm
Preferred Customer:

I think there's at least one significant typo in your hypo. Nonetheless, I get the thrust of your question.

Under the current framework, the answer is that treatment for HIV while pregnant only affects her personal bodily integrity. The risk of spreading a communicable disease to other pregnant women -- and affecting their fetuses -- affects their bodily integrity.

There is a certain slippery slope danger here. Forcing a woman to take drugs to minimize the risk of infecting her unborn child with HIV lies at one end of the spectrum, but it is a spectrum. If the government has that power, why doesn't it have the power to keep her from drinking alcohol while pregnant or to keep her from going scuba diving or rock climbing or any one of a number of other activities that might harm the fetus?



I agree, with one addition--it isn't just the *mother's* bodily integrity we care about. It is her child's. Parents, to a large extent, are trusted in our society and legal system as being the guardian's of their children's well-being. Obviously, in extreme cases (e.g., abuse) the law steps in, but short of that circumstance parents are given wide latitude to determine how their children are raised, what they are exposed to, what they eat, how they learn, etc.

Were a mother's decision affects only her child, we are much less willing to interfere than where a mother's decision might affect other people's children.*

That said, I think there is much to commend the argument here that the AIDS scenario hews close to abuse, and that we should intervene here--but E.V.'s hypo is, to my mind, easily distinguishable and provides no insight into whether or not to intervene in what is really a wholly different circumstance.



*There is a colorable argument that HIV transmission to the child's subsequent sex partners constitutes a public health risk, but I take it that this risk is not what most people who react negatively to the AIDS scenario are actually reacting to. I take it that these people are primarily concerned about the welfare of the child.
1.4.2006 11:43pm
Dave Hardy (mail) (www):
Isn't this a slippery slope, and where would it end? If a child's health would be better by becoming a college grad, can you force parents to send the kid to school?

They do right now, just not to the college level.
1.4.2006 11:52pm
Dave Hardy (mail) (www):
Yet for those who believe that life begins at conception and that Roe v. Wade was decided wrongly, if Moe were suffering from some life threatening disease during her pregnancy which the treatment of which would require aborting her fetus, the government would prevent her from receiving that treatment.

Actually, I think even the strictest right to life position (which is distinct from criticism of Roe as a legal doctrine) would hold that, where one of the two lives must be lost, the mother is entitled to choose her own, as morally neutral position.
1.4.2006 11:59pm
Mary (mail):
More and more parents are opting out, though DaveHardy, and choosing to provide personalized education via home schooling. Also, some of these kids test well, and it's not always done (homeschooling) for religious reasons. If you lived in a rural area, with a 45minute bus ride, and were educated yourself and committed to your child's education, I'd say, keep them home, particularly if the winter weather is especially nasty where you are. With computers now, and more organized social/sports activities for kids, I don't think they are as isolated as people might think. Again, let the parents, not society, decide what is best to be taught to their child, and how and where (classroom/outdoors/museums/US travel, etc.) to teach it. Damn, I do believe I value autonomy highest of all overall. So these hypos, and the greater government powers, truly are scary! My belief always has been: if you can afford it and are willing to sacrifice other things for it, freedom for yourself is the best way to go.
1.5.2006 12:04am
Cala:
The relevant criterion is the potential risk to society. Given that U.S. law allows women self-determination over pregnancy, and given the highly personal decision to ingest medication, the only time the law may intervene is when her actions (such as refusing to vaccinate) would harm other people excluding the (potential) person in the womb.

Forcing her to medicate for the health of the fetus would seem to be on the same footing as forbidding drinking, requiring pre-natal vitamins, forbidding risky activities (all the invasions of privacy enforcing such laws, too).

Look, I think it's awful if she chooses not to take her HIV medication (assuming, of course, it doesn't make her horribly ill) and harms her baby; but I think it's pretty awful that the Klan gets to hold nasty rallies in my town, too. I think it's pretty awful when an obviously guilty criminal is found not guilty due to an evidence technicality. But laws don't perfectly map onto what I think is morally right, and by and large, I'm pretty sure that's for the better.
1.5.2006 12:26am
D K Warren (mail):
In the eyes of the law, there is a sharp distinction between a fetus and a newborn or minor child.

A fetus, even one facing imminent birth, does not have equal standing with that of an infant-minor for the purpose of finding a compelling state interest to protect them.

See, In re Brown, 689 N.E.2d 397 (Ill. App. 1997) (state may not override pregnant woman's competent treatment decision, including refusal of recommended invasive medical procedures, to potentially save life of viable fetus); Young v. St. Vincent's Medical Center, Inc., 673 So.2d 482 (Fla.1996) (declining to rule that a fetus is a "person" within the meaning of the Florida Wrongful Death Act); State v. Gethers, 585 So.2d 1140 (Fla. 4th DCA 1991) (declining to apply a child abuse statute in a case involving a fetus); Roe v. Wade, 410 U.S. 113, 158 (1973) ("the word 'person,' as used in the Fourteenth Amendment, does not include the unborn"); Matter of D.K., 204 N.J.Super. 205, 497 A.2d 1298, 1302 (Ch. Div.1985) (holding that appointment of guardian for a fetus prior to viability was improper and pointing out that there is no reference to fetuses in guardianship rules and that the use of the term "person" in the rules was significant because a fetus is not a person); see also Roe v. Casey, 464 F.Supp. 483, 487 (D.C.Pa.1978) ("We hold that unborn children (fetuses, embryos) are not persons with a legally protectable interest within the meaning of [Federal Rules of Civil Procedure] and, thus, appointment of guardian ad litem is neither warranted nor required").

What might constitute neglect or abuse when applied to an infant won't apply to a fetus unless the legislature defines a particular law as including the unborn. As the court said in In re Brown above:

In examining the State's interest in the viable fetus, we note the distinct circumstances of this case. This is not an abortion case in which a pregnant woman seeks to terminate an unwanted pregnancy. Likewise, this case does not involve substance abuse or other abuse by a pregnant woman. And while refusal to consent to a blood transfusion for an infant would constitute neglect (see Labrenz, 411 Ill. at 624, 104 N.E.2d at 773), without a determination by the Illinois legislature that a fetus is a minor for purposes of the Juvenile Court Act, we cannot separate the mother's valid treatment refusal from the potential adverse consequences to the viable fetus.

Id. at 170-71.
1.5.2006 12:26am
Greg (www):
What about Jehovah's witnesses? With live children? And blood transfusions, instead of AZT? At least 35 states have a religious exemption to child abuse statutes.

One doctor studied 172 children who had died between 1972 and 1995 because of faith healing.

How does the question change when we are talking about a fetus?
1.5.2006 12:32am
Sean M.:
D.K., you ignore, in your New Jersey citation, Raleigh Fitkin Memorial Hospital v. Anderson, 42 N.J. 421 (1964) where the Supreme Court held directly that "The blood transfusions (including transfusions made necessary by the delivery) may be administered if necessary to save her life or the life of her child, as the physician in charge at the time may determine," where a child is "quick."

In addition, the Georgia Supreme Court, in Jefferson v. Griffon Spalding, 247 Ga. 86 (1981), allowed a guardian to be appointed to make necessary medical decisions for a child who would die if not given medical intervention.

Not that you don't cite valid cases, but Courts are split, and I think you're dead wrong on New Jersey law.
1.5.2006 12:47am
Mary (mail):
VC hosts:
I know this is OT, but somehow I think this little boy's story is relevant, though indirectly, to what we are discussing here about children and the quality of life, family decisions and relying on faith. It may make you appreciate your own healthy children more too, never a bad thing.

I know VC has a big audience, and hope some of your readers here appreciate this story and happy photos (click on Meet Carlitos) with his father and especially, his mother.

Of course, I understand it is slightly OT and will look in a few days to see if you understandably have chosen to delete it under your policy. Not to be sappy but thank you for providing this forum and helping us all get beyond our own circumstances/thought circles to see how others view Life. Maybe this, and not your legal expertise, will be your ultimate legacy.
1.5.2006 12:49am
mcubed (mail):
Not being a doctor, nor a lawyer, but just someone with a lot of experience with PWAs and HIV medications, I find it hard to accept on the face of it that the court didn't make the right decision here. You said in your other post that the decision was based "partly on factual grounds." Statutory questions are interesting and all, but it seems to me that the factual grounds ought to carry a lot more weight. We are dealing with a specific woman carrying a specific fetus. What is this woman's history of medication? What kind of side effects is she prone to? What kind of condition is she in? T-cell count? Viral load? All these and other factors are important in deciding a course of treatment and when to start it. You say "The babies may end up infected with HIV via the mother, and, as I understand it, their risk of infection would be considerably lower if the mother were treated during pregnancy." That's probably still true in the abstract, according to what I've read, but it's by no means true in all cases. It's patient specific. The medical establishment has revised its thinking considerably on the best and most effective strategies for fighting HIV, especially with regard to when and how to start therapy. For years, newly diagnosed patients were put on a drug regime immediately; that turns out not to be the best strategy, according to most HIV specialists these days. It seems to me the question of whether any pregnant woman who isn't currently taking HIV medications is best left to her and her doctors, for her own sake and for the sake of the fetus.

Or are judges now expected to be doctors also?

And, "short life and painful death"? AIDS is no picnic, but this isn't 1989. There are PWAs alive today who were infected before an HIV test was even developed, and who are quite healthy by any standards, to say nothing of all those infected in subsequent years who are doing fine. It's not something I'd wish on anybody, but it's hardly a death sentence anymore. Who can say if PWAs will reach what would have been their full life expectancy? Who knows what the long-terms of these drugs are? But who can say that even better therapies and treatments won't be available in 10 years that make living with HIV about as cumbersome as living with diabetes? And who can say there won't be a cure?
1.5.2006 1:25am
minnie:
Yes, Eugene, we see what you believe, and you're right. Women should of course be forced to do whatever the State thinks is best for them. All the time. In every case. No matter what. If the woman refuses, and resists forcibly, she should be restrained, beaten if need be, jailed if she resists forcibly enough. If she doesn't take her vitamins and has a cigarette while pregnant, she should probably be hung, if that's what the majority decides is best for her. You know best, Eugene.
1.5.2006 2:27am
D K Warren (mail):
Sean M. above raises an excellent point, and one which seems to point to a procedural snafu in this case rather than a problem with substantive law or the rights of a fetus in NJ.

Because NJ's child neglect & abuse laws don't apply to a fetus, and taking the NJ Supreme Court case of Raleigh into consideration, perhaps the state should have styled it's case as an application to compel the HIV treatment (prior to birth) rather than filing charges of neglect (after delivery). See also Application of Jamaica Hospital, 491 N.Y.S.2d 898 (Sup. Ct. 1985) (allowing appointment of guardian and blood transfusion over mother's objection to protect a NON-viable fetus).

The state, however, might have had a problem with standing to bring such an action. If so, a hospital could petition the courts as in the Raleigh & Jamaica Hospital cases above (in some states it's the other way around; see e.g. Harrell v. St. Mary's Hospital, Inc., 678 So.2d 455 (Fla. 4th DCA 1996) holding that hospital lacked standing to file petition for emergency blood transfusion of pregnant patient; application must be brought by the State Attorney).

Of course, if they wait until she's admitted for delivery it may be too late if she's already in active labor.

NJ law might have allowed for the compelled HIV treatment of an unborn fetus over the mother's objection in this case. However, whether or not prenatal HIV treatment is considered as medically necessary or urgent as were the forced blood transfusions in Raleigh is another matter entirely.

Query: Even assuming you could get a court order, how would it be enforced? Consider these comments by other courts:

The American Medical Association's Board of Trustees cautions that the 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. If the woman rejects the doctor's recommendation, the appropriate response is not to attempt to force the recommended procedure upon her, but to urge her to seek consultation and counseling from a variety of sources. In this case, then, the actions taken by the medical professionals appear to be inconsistent with the ethical position taken by the profession.

Of not insignificant concern in this case is how a forced cesarean section would be carried out. The Public Guardian specifically opposed any effort to use force or other means to compel Doe to have the surgery; the State also opposed the use of force. Thus, we have been asked to issue an order that no one expects to be carried out. This court, as a simple matter of policy, will not enter an order that is not intended to be enforced.

Enforcement could be accomplished only through physical force or its equivalent. [The mother] would have to be fastened with restraints to the operating table, or perhaps 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 [the mother] had done no wrong.

An even more graphic description of what actually happened when a forced cesarean section was carried out may be found in Gallagher, Prenatal Invasions &Interventions: What's Wrong With Fetal Rights, 10 Harvard Women's L.J. 9, 9-10 (1987). We simply cannot envision issuing an order that, if enforced at all, could be enforced only in this fashion.

In re Baby Boy Doe, 632 N.E.2d at 335 (Ill. App. 1997).

Also:

Such an order would be in the nature of an injunction, issued by the court and requiring the mother to consent. The only enforcement of such injunctive orders is a contempt citation issued against the mother for willfully violating an order of the court. Contempt is punishable by the imposition of a fine, imprisonment, or other sanction. We question the efficacy of a court order requiring a blood transfusion for someone who is facing death.

In re Brown, 689 N.E.2d at 405-06 (Ill. App. 1997).

Granted, prenatal HIV therapy may not be as intrusive or risky as C-Sections or blood transfusions but it does raise an interesting issue of compliance. Even the cases upholding vaccination requirements as a valid exercise of state police power didn't go so far as to say people should be strapped down & injected. They generally upheld the state's authority to exclude non-compliant individuals from public schools, deny public employment, etc. See e.g. Maier v. Besser, 73 Misc.2d 241 at 243 (N.Y. Sup. 1972).

So after all the legal wrangling is over, if an HIV+ pregnant woman refuses to comply with a court order directing her to undergo HIV treatment for her unborn fetus before her (the mother's) untimely death, what public benefit will we deny her? Lock her up? Can we say "political suicide"?
1.5.2006 3:52am
Dissent:
I wanted to mention that several prominent scientists dispute much of mainstream science's understanding of AIDS. This might be relevant to the discussion: assume that some minority of the medical community feel that AIDS drugs do more harm than good. Would that be overriden by the majority medical opinion?

One dissenter is Peter Duesberg, whose website is duesberg.com
Other scientific literature can be found at virusmyth.net

Despite having read Duesberg's "Inventing the AIDS Virus", a fascinating and controvertial read, I have no scientific training and no way to assess whether the dissenters are right or wrong.
1.5.2006 3:52am
jab (mail):
blockquote>
Attempts to compare HIV to the traditional communicable disease such as Measles, TB, Leprosy or Smallpox fail because when HIV/AIDS was first diagnosed it developed an active political base because it was primarily homosexuals that were first infected.


Ah, no. There is an obvious difference between HIV and the others... yes they are all comunicable diseases... but HIV, unlike the others, is NOT transmitted via CASUAL contact... there is no danger of HIV spreading like wildfire through high-population centers... you can have as much personal contact with those infected with HIV with ZERO chance of getting infected unless you engage in unsafe sex or share needles.
1.5.2006 4:35am
Patrick (mail):
Alex F, and others:

In France, the position re 'C-sections' is exactly as you put it. The same applies to the anaesthetics. You decide (and they don't recommend going without the anaesthetics), and then if they think there will be a problem, they decide.

My wife and I were mad as hell about that, especially since if there had been a caesaerian, I wouldn't have been allowed in. Happily, all went well, except the massive bruise on her arm because the nurse couldn't find the vein for the unwanted (and happily unused) anaesthetic drip.
1.5.2006 5:25am
Doc:
>I wanted to mention that several prominent scientists dispute much of mainstream science's understanding of AIDS.

Sorry Dissent, He's a quack and *no* respected prominent scientist believes his B.S. on HIV. Man, I haven't seen anyone use ol'Petey since the '90s to poo poo HIV. But it's no use, I know you won't be convinced, just others shouldn't get hooked by believing this crap (too many HIV+ were swayed by that thinking to stop their treatments which were, in the early days, especially arduous.
1.5.2006 7:44am
PersonFromPorlock:
Eugene,

Does the government have the authority to prevent a healthy, pregnant US citizen (say, a missionary) from moving to a country where her infant will have a far higher chance - even one approaching certainty - of dying from a childhood disease?

Somehow, I doubt it. Unless the mother is legally incompetent, we must respect her decision regarding the child. We may, and probably should, excoriate her for a such a bad decision but that's kibbitzing, not law.
1.5.2006 7:50am
AppSocRes (mail):
Tough cases make bad law. The key point here is that the state is compelling one person (the mother) possibly to act against her own interests possibly to preserve the life of another person (her unborn child). Such compulsion is both illegal and IMHO immoral. My analogy in the previous thread on this topic was to a child whose life could be saved with a kidney donation from the only available eligible donor, who happens to be the child's father. Is there a moral obligation on the part of the father to make the donation? Of course. Is there a legal obligation? I doubt it. Would it be moral to compel the father to donate? I don't know. Is such compulsion moral if it involves a private party threatening to kill the father if he will not donate? Most definitely not. Is the situation less clear if the government passes a law compelling donation in such cases?

I'm shocked to find myself on the same side as adamant supporters of Roe v. Wade on this one.

doc: Duesberg was writing the textbooks on retroviral research when Montaigner and Gallo were still in Med school. He's hardly a quack. Many viruses -- HHV6 is just one example -- show a much stronger association with the various symptoms of AIDS than does HIV. HIV detection is very poorly defined. It relies on PCR techniques and the detection of various RNA/DNA segments. Different researchers look for different segments. The research is much more confused in this field than in most areas of medical research. Clinicians -- as usual -- have adopted a SOP for dealing with AIDS. Current research does not neccessarily support this.
1.5.2006 9:01am
Aultimer:
How about this reasoning?


State [] laws, like those [theoretically] involved here, that [require fetal medical treatment] without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to [refuse fetal medical treatment]. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potential[] human life['s heath], each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.[...]For the stage subsequent to viability, the State in promoting its interest in the potential[] human life may, if it chooses, regulate, and even [require fetal medical treatment] except where it [would] necessar[il]y, in appropriate medical judgment, [harm] the life or health of the mother.


(That's the headnote for the holding of Roe v. Wade)
1.5.2006 9:21am
Erik H.:
The obvious, blunt, logic would be this:

-Aborting a fetus kills it.

-There is nothing "worse" you can do to a fetus than to kill it.

-Abortion is permitted.

-By extension, anything LESS than abortion is permitted.

-ALSO by extension, if you argue that you should/can ban anything which damages the fetus LESS than aborting it, you _must_ logically argue that you should/can ban abortion.


However,

-Communicable diseases threaten the safety of our nation (broad use of 'safety' is intentional)

-Vaccinations pose a risk to the individual, but not to the nation as a whole.

-The risk to the individual from a vaccination is far less than the collective risk to the nation as a whole from an unvaccinated individual.

-Our government is entitled to make laws which hurt or restrict the individual for the overall benefit of the nation. Taxes are an example, as are mandatory school laws, criminal laws, etc.

I don't see how this vaccination / AIDS thing has any real logical connection other than as a thinly veiled argument against abortion.
1.5.2006 9:49am
MDJD2B (mail):
I asked this in the other post too, but I'll repeat it here: do you believe it would be constitutional to force women with potentially difficult births to undergo C-sections even if they refuse? (By potentially difficult I mean births where doctors in good faith predict that a regular delivery has a higher chance of resulting in death or severe disability of the child)

This situation is distinguished from the HIV situation in a number of ways. First, the protective effect with regard to the fetus is not as dramatic. The rate of HIV transmission to the fetus is now about 1% with modern drugs (the 8% cited in other posts was from the original study, and drugshave gotten better)-- down from over 25%.

Second, the protective effect of cesarean section is not as predictable. We can't give the sort of precise statistics being bnadied about regarding HIV transmission for the protective effect of C-Section in any situation of which I am aware (and I am a practicing OB/GYN) in which the C-Section is being done for strictly fetal indications (as opposed to C-Section for danger to the mother, and I apologize for all the parentheses).

Third, cesarean section is done for a smorgasbord of reasons, and we don't have the clean sort of scenario as we do in the HIV situation. We could come up with many specific hypotheticals, of course, if we wanted to.

Finally, cesarean section is invasive in a way that drug administration is not, and can lead in unusual cases to infertility, severe disability or even death.
1.5.2006 9:49am
Sean M.:
D.K, let me add I think you're right that most courts have answered this question "no." You found In re: Baby Dode from Illinois. Let me add In re: A.C., 573 A.2d 1235 (1990).

I think your point as to enforcement is also correct. I have these cases handy since I wrote a paper on them, and I ended up concluding even though forced c-sections and such may be morally (and legally) justified, enforcing the orders simply wasn't practical.

In the Raleigh Fitkin case, the woman left the hospital against medical advice before the order could be carried out. In Jefferson, the woman went into hiding, but thankfully delivered a healthy baby vaginally.

I think this will be the likely results if we tried to get orders in these cases, too: Women who will simply bail before the order is obtained or enforced, and that creates even more risks to baby and mother.

Is that acceptable? What will our compliance rate be?
1.5.2006 9:52am
Steve:
Let's use another analogy. Mary is legally permitted to abort her fetus if she chooses. However, she is not legally permitted to abort other people's fetuses.

I don't see the conceptual difference between this and Prof. Volokh's hypothetical, which is why his point seems rather silly to me.
1.5.2006 9:56am
bearing (mail) (www):
I notice there's a wide assumption in the discussion of this hypothetical case that the HIV+ mom is choosing to act "in her own interests" "at the expense of" her child. Let's cast her in a better light: Consider a mother who truly believes, perhaps because of a reliance on alternative medicine or a distrust of the medical establishment, or even a careful reading of selected medical literature, that avoiding standard HIV treatment is the safer course for both mother and child?

I'm pro-life, and a strong believer in medical autonomy. The state has an interest in preventing epidemics, but how strong is its interest in invading an individual parent-child relationship with respect to medical decisions when there is no risk of epidemic? I'd be pretty horrified if I were forced by the state to inject my child with a drug that I believed would do more harm than good. Is that really any less objectionable than having the state dictate that I must teach my child something contrary to my moral beliefs? I'm protected against the latter; so what's wrong with protecting me against the former?

Occasionally I wonder what the medical culture would be like had the Bill of Rights included freedom from government interference in one's own medical care. There are some parallels to freedom of expression and freedom to worship.
1.5.2006 10:00am
J.E.S.:
Here's another analogy:

Mary can refuse medical treatment for her child, but cannot refuse treatment for someone else's child.

As thought experiments go, this is no "Schroedinger's cat"
1.5.2006 10:01am
MDJD2B (mail):
I wanted to mention that several prominent scientists dispute much of mainstream science's understanding of AIDS. This might be relevant to the discussion: assume that some minority of the medical community feel that AIDS drugs do more harm than good. Would that be overriden by the majority medical opinion?

One dissenter is Peter Duesberg, whose website is duesberg.com
Other scientific literature can be found at virusmyth.net

Despite having read Duesberg's "Inventing the AIDS Virus", a fascinating and controvertial read, I have no scientific training and no way to assess whether the dissenters are right or wrong.


Regardless of whether this guy is right, and virtually NOBODY believes that he is--

It is well established that admisistration of certain medicines to pregnant women with AIDS prevents disease in their newborn virtually 100% of the time, whereas over 1/4 will get the disease without treatment--

So-- whether the disease is caused by HIV, by miasamas, or by ultrasecret toxins dispersed by the CIA/FBI/ atheists/Republicans to kill blacks, gays, drug users and newborns-- the treatment works, and your point is a non sequitur.
1.5.2006 10:01am
Bruce Wilder (www):
The original story still seems a bit tortured to me. The core issue is the individual's autonomy -- right to make decisions regarding her own person and the persons of her minor children, vs the power and responsibility of the State to make such decisions. A story, where the judgement of medical professionals is given unquestioned authority, while the woman is portrayed as an evil lunatic, does not highlight the issues adequately.

Ordinarily, I think, we would assume that a mother -- absent some form of mental derangement -- will very highly value her children's welfare, and can be trusted with the responsibility for making decisions on their behalf. And, ordinarily, we assign only limited authority to medical professionals over the lives and persons of others. Wouldn't there have to be clear evidence that the mother was not capable of properly exercising personal and parental discretion, before we gave medical professionals the extraordinary authority contemplated?

Presuming, contrary to fact, that complex medical procedures and treatments with various and uncertain outcomes are clearly and unambiguously required in a particular case just seems to me to be a way to distract us from the reality that we customarily give parents autonomous authority in regard to medical treatment for good reasons.
1.5.2006 10:06am
Solid State (mail):
E.V.,

I think the critical error in your reasoning is the conflation of the 'potential' person and the 10-year old child. I'm going to address this on rational/moral rather than legal grounds, since your argument seems more of that type.

Frankly, rational/moral acceptance of abortion requires a deliberate break in the causal chain between fetus and child. It is incorrect, insofar as you accept the rational for legitimacy of choice-based abortion of the fetus, to extrapolate from actions carried out on the fetus to consequences suffered by the carried to term child.

We have decided, as a society, to consciously make this sharp break because the threat of state compelled behavior imposed on the mother restricts her human freedom to an unacceptable degree. The 'women reduced to cows' argument does hold here, despite its overwrought language. I would say that primarily because pregnancy is a physical state only enjoyed by women - we have concluded that state control of pregnancy in the interests of the fetus results in essential bondage of women by the state or the society at large.

Note that this leaves us free, as a society, to employ censure and moral condemnation if the mother takes actions that we find repugnant. However, state compulsion is precisely the area where there is a psuedo-slavery threat that is so compelling it has resulted in legal disavowal of our interest as a society in the fetus. Yes, this results in various morally repugnant actions that are legally permissible. Yes, this results in the deliberate illogic of creating a cause-effect 'wall' at the moment of birth.

However, like the impermissibility of evidence (a proven criminal is found 'innocent' despite the presence of absolute evidence of guilt that was obtained illegally), there are sometimes larger social and moral concerns that override the interest of achieving moral/just results in a particular case.

-SolidState
1.5.2006 10:09am
med person:
Just a quick thought from a first time poster and long time reader in the medical field. Currently HIV infection is only treated once it progresses to a certain point. That is to say once someone is diagnosed HIV+ they are not necessarily immediately begun on anti-retrovirals. If the disease in a pregnant woman has not reached the stage where treatment would be begun regardless of her pregnancy status the medications are discontinued after the pregnancy. This pattern of medicating pregnant women was examined in a paper in the past few years (I forget the journal but I think it was the NEJM) where in addition to transmission rates the future effects on HIV management in the mother was examined as well. As I recall it made the HIV virus more resistant to first line drugs (I thinkā€¦again I read the article a while ago). Thus the analogy as originally posited has an additional wrinkle as medical treatment to help prevent transmission to the fetus/baby may actually produce "worse" (more resistant to medication) HIV disease in the mother. Consequently it is not simply a matter of the mother making a decision regarding the risk of vertical HIV transmission (mother to baby) but incorporated in the risk benefit analysis there is the potential to worsen the mother's health in the mid to long term.
1.5.2006 10:50am
Bruce Wilder (www):
To: ChrisAllen and BruceHayden,
Re: the political status of AIDS/HIV

It is historically inaccurate to assert that the political organization of gay men around AIDS/HIV issues stymied effective public health measures.

In part, because AIDS affected primarily men having homosexual relations -- a stigmatized behavior -- the public health response, at the time early in the epidemic when it might have been most effective, was slow and ineffective. The subsequent political organization of gay men was a factor in prompting the later (tardy) and more massive response. Even then, disproportionate resources had to be focused on the needs of HIV-infected infants to satisfy the political preferences of the right-wing.

The political opposition of groups largely organized by gay men in response to AIDS/HIV epidemic to specific proposals for tracing, reporting and quarantine arose from a realistic concern that such policies -- or specific features of the policies proposed -- were motivated and shaped by hateful prejudice against homosexuality and a long-standing right-wing goal of thoroughly oppressing homosexuals. Twenty-five years before HIV made its appearance, a thorough system of legal oppression of homosexuals existed -- sodomy was a serious felony, homosexuals were barred from employment in government and many professions, censorship of literature and movies regarding homosexuality was commonplace. A large part of the right-wing in the 1980's (and now) regreted that that system of oppression had been partially abandoned, and would have liked to return to it. Gay men, realistically, feared that the right-wing would use the HIV epidemic to reintroduce that system of oppression under the guise of public health measures, and opposed unnecessarily oppressive policies. At the same time, gay organizations actively promoted and demanded effective measures to cope with and curtail the epidemic, and, of course, were sometimes opposed in this by right-wing groups.

As in the story told by the Professor, it is easy to tell a story in which the medical professionals only want to help, and some authoritarian measure is assumed to be uniquely and ideally effective, without any critical examination, while the autonomy of the individual is portrayed as the source, not of balanced judgement, but of irrational, selfish impulses, which must be contained and constrained.

Those of us, who value individual human freedom must protest the easy dismissal by authority of individual autonomy and choice. Illness and fear should not be a license to deprive an individual of her life and her ability and responsibility to make choices for herself, to remain secure in her person and possessions.
1.5.2006 11:03am
Fishbane (mail):
Eugene,

Here's another hypothetical. Suppose a treatment for HIV that reduced the risk to the child didn't exist. Would the state have the right to disallow her from becoming pregnant?

It seems the harm reduction would be very similar to what you are proposing, unless you are of the view that a short life with HIV is better than never having existed.

I would be interested, as many others here obviously are, on where you would draw the plateau on the slippery slope here. Illegal drugs has already been decided. You're clearly arguing for forced medication here, at least for HIV. Presumably, you'd do the same with other serious, noncommunicable diseases. I see nobody arguing with you about communicable diseases.

On the other end, I doubt you'd prohibit behaviour like driving. What about living with a known abusive spouse? Does the good of the child dictate forced imprisonment in a safe house, if a court determines a significant risk to the fetus? Where would you draw the line?

Hard cases do indeed make bad law.
1.5.2006 11:08am
Hans Bader (mail):
Requiring HIV treatment to protect the future well-being of a child whom the mother has chosen to bring into the world is far less of an intrusion on the mother's rights than intrusions on fathers' rights that happen every day in divorce courts.

Consider, for example, a divorce court's requiring a terminally ill divorced father to purchase life insurance for the benefit of his divorced wife and their child rather than using that money to pay for cancer treatments. (This has actually happened -- ask Professor Stephen Baskerville of Howard University, who studies the family courts). The divorce court justifies that under the nebulous "best interests of the child" standard, which overrides any rights the father may have.

Why is it acceptable to hasten a man's death to benefit his children, but not to inconvenience a woman a tiny bit to protect her children from a deadly disease?

Remember, the mother in the above HIV hypothetical isn't being forced to give birth. She has chosen to do so. She has the right to terminate the pregnancy under Roe v. Wade, which she has chosen not to exercise. Doesn't she acquire a tiny bit of responsibility to her child once she chooses to bring it into the world, at the risk of an existence wracked by pain all of its life?

There is a gender-based double-standard here. Family courts order men who don't pay their child support not to have additional kids, which certainly affects their right to procreate (the Wisconsin and Ohio appellate courts have upheld such orders). The Alabama Court of Appeals ordered a man who was raped (not statutory rape, real rape) to pay child support to his rapist, which certainly attached far more onerous conditions to his involuntary act of procreation than anyone is suggesting be imposed on the mother in the HIV hypothetical, who voluntarily chose to give birth (and the order against the Alabama rape victim probably affected his financial ability to support or father any future children with any other woman).

Thus, the right to decide whether or not to have a kid is not absolute. Yet the above posters are offended merely that a woman might face some far more minor limit on her reproductive rights.

(Disclosure: I have no kids, and no child support obligations).
1.5.2006 11:41am
Christopher L. (mail):
For those inclined to think that this woman can't be forced to get HIV treatment, here's another hypo:

Assume that a woman intends to deliberately injure her fetus, so that ten years after its birth, it will die a violent death? Assume that she can actually do this. Can the state forbid it?
1.5.2006 11:41am
Alex F:
Hans,

First, all of your examples (except the rape case) regarding child support, life insurance etc, are not examples of obligations that ONLY apply to men. While men may constitute the majority, even let's assume a large majority, of child support payers, there are women who pay child support to their husbands as well. ONLY women get pregnant. Second, all of these invasive measures are in the interest of a living breathing child who IS endowed with certain rights under our legal system, is counted in the census, can be listed as a dependent on taxes, etc. Third, the government already invades our financial lives quite thoroughly, mainly through taxes, but also in employer/employee relations, etc. Forcing someone to take medication is completely different. And about the 'not having children' example, while I know of no case where a neglectful mother was forcibly put on birth control, babies can be taken away from mothers by social services right at the hospital, which amounts to the same thing, except probably much more traumatic because the mother has had to go through 9 months of pregnancy.
1.5.2006 12:24pm
Alex F:
"The Alabama Court of Appeals ordered a man who was raped (not statutory rape, real rape) to pay child support to his rapist,"

About that, did the Alabama Court of Appeals concede that the man was raped? Was that a claim that he made? Was it disputed by the woman? Was the woman convicted of or charged with the rape? Of course lack of a conviction, charges, or the court's agreement does not mean that no rape occured. But it DOES mean that there is no precedent set here for making rape victims pay child support to their rapists.
1.5.2006 12:28pm
Hans Bader (mail):
The mother in the Alabama case, which ordered a rape victim to pay lots of child support to his rapist, did not dispute that she raped the underage father. She had sex with him while he was asleep. (An adolescent male can easily have an erection even while sleeping). See S.F. v. State ex rel. T.M., 695 So.2d 1186 (Ala. Civ. App. 1996).

That's not statutory rape, in which the underage father knows what he is doing, and is less victimized (statutory rape may still be a crime, but some states bar civil recovery by a consenting underage party on the grounds that civil and criminal consent are different, and that allowing a suit provides an incentive for the underage partner to engage in the prohibited conduct).

It is rape -- when a man has sex with a woman who's sleeping and does not consent, the court's recognize that that's rape, pure and simple.

The appellate court did not need to determine conclusively that rape occurred, because it didn't matter to them -- the underage father was liable even if raped (the court hypocritically said that the child has the constitutional right to support from both parents, even though Alabama law belies that contention by permitting one-party adoptions and other one-parent family structures in which there is no support from two parents, or even from a single biological parent).

The Alabama appellate court even refused to depart downwards from the child support guidelines amount in light of the fact that the mother was better off than the boy was.

The child support order amounted to about a third of net income -- essentially, the mother profited from her rape.

West's published summary of the case is as follows:

Court of Civil Appeals of Alabama.

S.F.
v.
STATE ex rel. T.M.

2950025.

Nov. 22, 1996.

Rehearing Denied Jan. 10, 1997.
Certiorari Denied May 30, 1997
Alabama Supreme Court 1960744.

State brought action to establish paternity and sought child support. The Franklin Circuit Court, John D. Jolly, J., entered judgment for state, and adjudicated father appealed on due process grounds, contending that he did not knowingly and willfully have sex with child's mother.

The Court of Civil Appeals, Yates, J., held that adjudicated father was obliged to support child, regardless of whether conception resulted from sexual assault by mother.

Affirmed.
1.5.2006 12:45pm
Alex F:
a) I think it's perfectly valid to say that a child, once born, is entitled to support even if the conception was involuntary. The child, after all is an innocent party.
If the mother (or father) is a rapist, they shouldn't receive custody of ANY child in the first place, and therefore they wouldn't receive any child support. The father could take care of the kid himself. Problem solved. If this woman got custody of the child, the courts couldnt've taken the mans claim of rape very seriously. Maybe they should have, and they're sexist double-standard bastards, that's another argument.However, if there was no rape conviction, no charges, and nobody seems to think that the woman IS a rapist (presumably not, since they let her keep a child while other women get their kids taking away for doing illegal drugs), besides the guy himself, then there's no legal standard of "rape victim paying child support to rapist".
1.5.2006 12:59pm
Hans Bader (mail):
With respect to the appellate decision that made a rape victim pay child support to his rapist:

1) Children are NOT entitled to support from both parents, as a constitutional matter. If there were any such constitutional "right," the 50 states would not permit single-parent adoption, artificial insemination, and the like. Such statutes would be constitutionally invalid, and sperm donors would be on the hook for child support.

Alabama ONLY recognizes a purported constitutional "right" to support from both parents when the mother finds it convenient.

So the rationale of the appellate court -- that the constitution itself creates a right binding on private parties (not, like almost every other constitutional right, binding only on the government) to support children (even if conceived against their will and already adequately supported) -- is just hokum, and hypocritical hokum at that.

2) The appellate decision expressly is predicated on the premise that the man WAS raped, and the woman didn't even dispute it, and the concurring and dissenting judge (who agreed with forcing the man to pay child support, but would have awarded a smaller amount) certainly sounds like HE believed the man was raped. So it is not true that "nobody seems to think that the woman IS a rapist," as you believe, Alex F. The court didn't pooh-pooh the possibility -- it just said even if he was raped, he does pay.

3) If a man gets sexually assaulted, there is no guarantee, as you seem to believe, that he will get custody over the child conceived with his rapist.

I recall a case in which an elderly man was sexually assaulted by his housekeeper (she pled no contest to indecent assault and got little jail time), and then not only hit him up for child support, but avoided visitation by the father. (I don't recall the case name; I may have been forwarded a news story about it from Professor Baskerville of Howard University).

(I have forgotten the trial judge's reasoning for denying the elderly father visitation: The trial judge may have reasoned that the child would benefit from not being exposed to the father, because of acrimony between the parents (what else would one expect between a rapist and rape victim?) or other negative factors flowing from his being raped (after all, the child might be discomfited by learning about how mom conceived, i.e., that mom raped dad)).
1.5.2006 1:15pm
eddie (mail):
Just to throw a little wrinkle into this hypothetical, what if it wasn't a idiosyncratic quirk that guides Mary, but a religious belief. Would that change anything?

HIV is politically correct. I missed that day in school.

The slippery slope is much more fundamental than simply the issues raised in Roe. The constitution gives certain rights to individuals. The important question is what constitutes an individual and how does the state balance the various competing rights of individuals.

If it is found that certain types of behaviour lead to infection is that a sufficient basis for prohibitting such otherwise legal behaviour?
1.5.2006 1:41pm
NickM (mail) (www):
My own view toward the thought experiment is that no new category needs to be created for EV's hypothetical - the mother is afforded a wide latitude of reasonable parental authority over the medical decisionmaking affecting her own children, and unless there is sufficient public health danger to others' children (HIV is a non-zero, but generally trivial, risk to others' children) and the decision is so medically unreasonable as to constitute parental neglect, her refusal to accept the treatment should be upheld. Any real prospect of a serious side effect in the mother from accepting the treatment should per se render her decision not so medically unreasonable as to constitute parental neglect.

Let me add my own variation to the hypotheticals posed.

A pregnant woman seeks to enter into a medical study to test the effectiveness of a new drug for treating a certain serious, and potentially fatal, disease. This disease is fairly slow-progressing, and does not appear to be interfering with her ability to carry to term. Preliminary indicators from animal testing suggest that the drug may have the result in pregnant women of creating gross deformities (a la thalidomide). May the state prevent her from doing so?

Now replace "pregnant" with "nursing" in the first hypothetical.

Nick
1.5.2006 3:46pm
statfan (mail):
I'm having a hard time figuring out the difference between the case where a mother uses physical discipline on her own child (that is, she spanks him or her in the usual manner), and a similar case, where the same mother goes out onto the street, picks up random children and spanks them.

Can anyone help here?
1.5.2006 7:35pm
Challenge:
"Here's another hypothetical. Suppose a treatment for HIV that reduced the risk to the child didn't exist. Would the state have the right to disallow her from becoming pregnant?

It seems the harm reduction would be very similar to what you are proposing, unless you are of the view that a short life with HIV is better than never having existed."

Ask a child with HIV what he'd prefer.
1.6.2006 12:20am
D K Warren (mail):
For an interesting overview of the legal issues involved, check out 9 A.L.R.3d 1391, Power Of Courts Or Other Public Agencies, In The Absence Of Statutory Authority, To Order Compulsory Medical Care For Adults.

Most relevant to this discussion would be the following passage:

It has also been held that the Constitution's guaranties of personal liberty and freedom of religion cannot be used as a cloak for any person with a contagious or infectious disease to spread such disease. However, in Prince v Massachusetts, 321 US 158 (1944), while holding that a parent cannot claim freedom from compulsory vaccination for a child or for himself on religious grounds, and that the state, as parens patriae, may restrict the parents' liberty to expose the community to communicable disease or to expose children to ill health or death, the court did state that its authority over adults was narrower than over children, and that parents may be free to become martyrs themselves.

Again, however, even the cases upholding compulsory vaccinations didn't go so far as to say a person could be forcibly restrained to undergo the injections. If they refused they could be penalized elsewhere.

Whether prenatal HIV therapy is on the same plane as other vaccinations may still be open to medical debate. But assuming that it is or one day will be, there's still disagreement among the courts as to whether a fetus is considered the same as a child for these purposes.

As an aside, I'd note that those cases which have upheld forced medical procedures on pregnant women, such as the NJ Raleigh case (blood transfusion), the GA Jefferson case (C-Section), the NY Jamaica Hospital case (blood transfusion), In re Madyun, 114 Daily Wash.L.Rptr. 2233 (D.C.Super.Ct. July 26, 1986) (C-Section), and In re President of Georgetown College, Inc., 331 F.2d 1000 (D.C. Cir 1964) (blood transfusions), were all prior to the Supreme Court's ruling in Cruzan and may not be fully reconcilable with that decision (at least not with the current emphasis on respect for individual self-determination and bodily integrity in the area of medical decision making, especially when the woman is fully competent).
1.6.2006 3:38am
D K Warren (mail):
Raleigh and Georgetown also predate Roe v. Wade.
1.6.2006 4:26am
Sean M.:
Also, D.K, the D.C. cases might have been implicitly overruled by the In re: A.C. case, I reference above.

For other articles in this area, see Dawn Johnsen, "The Creation of Fetal Rights: Conflicts with Women's Constitutional Rights to Liberty, Privacy, and Equal Protection." 95 Yale L.J. 599 (1986) and Amy Kay Boatright. "State Control Over the Bodies of Pregnant Women." 11 J. Contemp. Legal Issues 903 (2001).
1.6.2006 10:36am
Fishbane (mail):
Ask a child with HIV what he'd prefer.

...and then ask a child that never existed, and compare?

Unless you're suggesting I go re-read Satre, I'm not sure where you're headed with this.
1.6.2006 11:56am
Deoxy (mail):
"Can that really be right?"

Yup. Sick, ain't it?

And to the poster at the beginning (the last one I read) who said that the other option would prevent an abortion in a life-threatening situation:

There are SOME factions that actually favor that, but most treat pregnancy like the "person drowning in the pool" situation (which makes the most sense, IMO): that is, the woman has decided to jump in and help (the decision to have sex - a raped woman was PUSHED into the pool), so she is now in a position where she may now leave the person to drown UNLESS continuing to help puts her own life at risk. It's actually fairly simple and fits almost perfectly into EXISTING legalities.

BUT it requires viewing the fetus as a person, which is BLASPHEMOUS to certain small portions of the electorate.
1.9.2006 4:04pm