Mama's Got a Plan:

Maternity Care, Health Insurance, and Reproductive Justice


The midwife national convention

the-mnc-the-midwife-national-convention-rwb

 

It’s time for the
Midwife National Convention!

Publicity for the upcoming annual conference of the Midwives Alliance of North America, combined with this summer’s Republican and Democratic national conventions, were the twin inspirations for this cartoon.  It seems unlikely that we will elect a midwife-in-chief anytime soon, but cherishing midwives’ skills and experience under the cover of political maneuvering seems like an end in itself.

References and Explanations

Frame 1. The background photo is from one of this summer’s conventions. Does it matter which? The MNC logo is based on a graphic by Sam Taeguk, shared under a Creative Commons license.

Frame 2. Every gathering needs a quilt exhibit! This quilt is intended to convey – by the variety of fabrics in the baby blocks – the diversity of North American midwifery. Every midwife has been caught out at least once wearing good clothes when the urgent summons to a birth arrives. What to do with those stubborn stains? When Spray N Wash fails, cut up that fabric for a quilt! Many thanks to Kathy Peters for her quilt design skills. The person gazing at the quilt is taken from a photo by Phil Roeder, shared under a Creative Commons license.

Frame 3. The photo by Pete Souza shows a 2009 meeting of President Obama’s cabinet, shared under a Creative Commons license. We’ve taken the liberty of cropping out the President, but perceptive readers will recognize individual cabinet members.

Frame 4. This frame shows the White House Situation Room, as portrayed in The West Wing.

Frame 5. This song, published in 1980 by Molly Scott of Sumitra, is sung here in the U.S. House of Representatives.

Frame 6.  Anyone with knowledge of the midwifery model of care will recognize the original context for the words MANA president Marinah Farrell is speaking to Vladimir Putin against the background of the Oval Office:

Laboring person: I can't do it!!!
Midwife: You're doing it!

The Midwifey Face is an invention of your cartoonist, who theorizes that midwives are endowed with special facial features or expressions that allow them to persuade anyone to do anything, no matter how difficult.

 


Life ends … when?

life-ends-when-slide-1

 

Life ends … when?

Once the cartoon Life begins … when? was posted, it seemed only natural to start work on the other end of the mortal coil – the shuffling-off end. The content of this cartoon is a little looser, compared with Life begins. After all, while we know more or less what happens when someone is born, death remains the big mystery.

Therefore, although this cartoon begins with an attempt to establish the elusive line between life and death, it goes on to comment on the nature of state law on the matter, the difficult cases of dead-but-not-really-dead people, the impact of pregnancy on dying, and a look at what happens when patients want to die.

In closing, the cartoon shows the aftermath of a tragic group of deaths we experienced as a nation. How are we to be healed?

References and Explanations

Frames 2 and 3. Hollywood lives in these frames! Or perhaps dies, as did the Bad Witch in the Wizard of Oz. The scary-looking machine with Farrah Fawcett in the background is from Logan’s Run (1976). We must confess that in the film it was actually a machine that refashioned people’s faces. We refashioned it for our own purposes to be a life-extending machine.

Frame 4. The gentleman contemplating the blueberries is from a photograph by Oliver Delgado.

Frame 5. The illustration is Crossing the Styxby Paul Gustave Doré (1861). The device shown dropping onto Charon’s boat is a heart-lung machine.

Frame 6. Mrs. Huffnagl was a recurring character in the 1980s medical drama St. Elsewhere. She is included here because of her iconic status as a Problem Patient, but also as a nod to our nostalgia for the television series of our youth.

Frame 7. The photo of the elderly patient is by melodi2. The point here is that a body kept alive by artificial respiration devices or other medical aids is nevertheless considered dead in the total absence of brain activity.

Frame 8. Federalism, the idea that multiple states are governed by a central entity yet still retain significant powers of governance, is a function of a very American history. Alexander Hamilton, James Madison, and John Jay may not have spoken the exact words shown emerging from Madison’s mouth, but they certainly believed in curtailing the powers of the federal government – thus enabling individual states to deviate from any one definition of death.

Multiple systems of law leads to both jurisdictional challenges and conflicts of laws. We admit to including these two images mostly because it was good fun to put words in the mouths of the Federalists and the cast of The Good Wife all at once.

Frame 9. The Uniform Determination of Death Act is model legislation created in 1981 and subsequently adopted by all U.S. statesSome states attached additional language; this accounts for the variation in state law.

Speaking the standard definition in this frame is – who else? – Death, from Ingmar Bergman’s classic film, The Seventh Seal (1957), as portrayed by Bengt Ekerot.

Frame 10. The images of brains in both healthy and vegetative states are taken from a larger graphic produced by the Université de Liège.

Two court cases defined the early days when law was forced by medical advances to consider the rights of patients who were not dead, as they retained some amount of brain activity, if only in the brain stem, but were also not conscious and unlikely to regain consciousness. In Re Quinlan (NJ 1976) concerned a 21-year-old who entered into a coma and later a persistent vegetative state (PVS) following her ingestion of alcohol combined with other medications. Her parents were finally permitted to withdraw life-saving treatment (here, a respirator), under their right to privacy, as extended to the right to refuse medical treatment.

Cruzan v. Director, Mo. Dept. of Health (US 1990), was the more significant case, with an opinion issued by the U.S. Supreme Court. Cruzan, like Quinlan, arrived at a persistent vegetative state, in her case as the result of a car accident. The Supreme Court found a fundamental right to refuse treatment under the “clear and convincing” evidentiary standard that evaluates the wishes of incompetent patients. Specifically, Quinlan’s nutrition and hydration devices were permitted to be terminated because a friend was able to show that Quinlan had earlier declared that under circumstances that encompassed the PVS, she would not wish to live.

The shift of the jurisprudence from determining when death occurs to when death is permitted to occur leads us to consider other complications the boundaries between life and death: babies.

Frame 11. The Ur-case of what may or may not be done to a pregnant woman on the brink of death is In re A.C. (573 A. 2d 1235, D.C. App. 1990). Angela Carder, a terminal cancer patient in the last days of life, was subjected to an unconsented-to cesarean section, authorized by a court order obtained by a hospital physician who believed the institution bore an obligation to save Carder’s 26-week fetus. Both Carder and the fetus died following the surgery; the appeals court found that the court order had been improperly granted because there had been no formal attempt to determine her competency before overruling her wishes.

It is widely felt that the broader implications of the case assure that pregnant women cannot be forced to undergo procedures for the sake of the fetus. However, in practice, the opinion does not quite reach this level of authority, for several reasons. First, the opinion is from the equivalent of a state court, and so formally controls the disposition of this issue only in the District of Columbia. Second, the ruling depends on a competency determination, and so never reaches the question of what to do when a pregnant person is competent and is forced to undergo a procedure. Finally, the opinion cites prominently an earlier Georgia opinion that distinguished its forcible c-section as one that was carried out for the benefit of both a mother and her fetus. It does not require great imagination to understand how many instances of forced c-sections could be construed in this manner. However, A.C. does seem to provide some protection against the hastening of a dying mother’s death for the sake of the fetus’s welfare. We have written more about the issue of unconsented-to c-sections here.

More to the point, perhaps, is the case of Marlise Munoz, a Texas paramedic who was found by her husband, also a paramedic, after she suffered a pulmonary embolism. At the time she was pronounced dead, she was pregnant with a 14-week fetus. As a result, her body was kept functioning in opposition her earlier-expressed wishes and those of her family. The family was ultimately able to disconnect Munoz’s body from medical devices after proof was obtained that the fetus would not survive to viability. Like Texas, the majority of states invalidate advanced directives during pregnancy.

Frame 12. Possibly an even more divisive situation is that of the patient who decides to die. As with giving birth, patients may die whenever they wish to, but they are severely limited in who may legally assist them. Euthanasia, defined as a medical provider administering the means of death to a patient, is forbidden in all fifty states, with exceptions for capital punishment in those states that continue to pass such sentences under state law. “Physician-Assisted Dying” (PAD), on the other hand, is defined as a physician providing the means of death to a patient, including by prescription. The patient is then responsible for administering the medication. Only four states permit PAD. One can argue whether people are indeed free to die if they do not, for example, have the use of their hands, or are unable to swallow. That, however, is a very large and complicated topic, far beyond our scope here. Readers wishing to explore it from a perspective that is at once both comic and horrifying, may enjoy Ian McEwan’s 1999 novel, Amsterdam.

Frame 13. Emerging from the thicket of decisions about when people are dead and what the law believes their rights to be, we come to the question of what really matters for most of us in the presence of death. The answer seems to be process. President Obama is shown in this photo by Lawrence Jackson singing “Amazing Grace” at the funeral of the Reverend Clementa Pinckney, one of the victims of the terrible racially-motivated killings at Mother Emanuel African Methodist Episcopal church in Charleston, South Carolina in 2015. The importance of the community’s reverence for the dead and the observance of rituals particular to that community cannot be overstated. We are tremendously grateful to retired home birth midwife Merilynne Rush, who now works on Death Cafes and home funeral care, for consulting with us on this cartoon and helping us to take in this reality.


The right to refuse medical care

right to refuse, slide 1

 

The Law Giveth and Taketh Away:
Religion, Science, and the Right to Refuse Care

This cartoon grew out of our astonishment that, particularly in the context of childbirth, U.S. law seemed to most strongly approve the right to refuse care when the refusal was based on irrational grounds. Evidence-based refusals both in law and in fact seemed to meet with much stronger resistance.

Legal Basis for the Right to Refuse Care

The right to refuse care is itself based on the overarching ethical principle of informed consent. While common understanding of informed consent is that a patient has signed a consent form that allows a provider to continue with a suggested treatment or procedure, in reality informed consent is – or should be – a repeated process, in which the following actions take place:

  • The provider explains the suggested treatment or procedure. The explanation sets forth the risks and benefits of the treatment as well as the risks and benefits of any alternatives, including doing nothing. The provider must ensure the patient understands what they have been told.
  • The patient makes a decision based on the information received, as well as on their own values and circumstances.

Case Law

Although informed consent requirements are now incorporated into patients’ rights acts in some states, informed consent doctrine has traditionally evolved as interpreted through a line of court cases, as shown in this cartoon in dark red text.

  • Schloendorff v. Soc’y of NY Hosp., 105 N.E. 92 (N.Y. 1914). Patients who do not consent to treatment that is carried out on their bodies can sue the provider for battery, with exceptions for emergencies and unconscious patients.
  • Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972). Physicians bear a responsibility to explain the risks of a procedure to the patient before proceeding with treatment.
  • In re Quinlan, 70 N.J. 10, 355 A.2d 647 (NJ 1976). Patients may refuse care, even if not receiving the care might result in their death.
  • Stamford Hosp. v. Vega, 236 Conn. 646 (1996). The court ruled that the hospital had violated the rights of the plaintiff, a Jehovah’s Witness who refused a blood transfusion. The hospital had obtained a court order that allowed it to administer transfusions or blood products to the plaintiff for a postpartum hemorrhage. This case supports the right of a mother to refuse care, notwithstanding the contention that the loss of the mother would cause harm to the child.
  • McFall v. Shrimp, 10 Pa. D. & C. 3d 90 (July 26, 1978). A person cannot be forced to donate body tissue (here, bone marrow), even if not to do so would cause death in the person needing the donation, and even if the potential donor is a close relative (here, a first cousin).
  • Tamesha Means v. United State Conference of Catholic Bishops (appeal in progress). Tamesha Means, a Michigan woman experiencing a miscarriage at 18 weeks, was denied care at a Catholic hospital because her fetus still had a heartbeat. The hospital’s actions were a result of a directive of the U.S. Conference of Catholic Bishops that prohibits abortion under all circumstances. Rather than intervening when Means developed an infection, the hospital turned her away without disclosing that the refusal to treat her was based in religious belief rather than in the standard of care. The case was dismissed at the trial court, but Means appealed to the Sixth Circuit Court of Appeals, where it now awaits a decision.

Statute

Some provisions in state statute allow providers to refuse to offer care and require that parents accept care for their minor children.

  • Provider “Conscience Clause” statutes. Many states have enacted legislation to permit various health care providers to file a professional, ethical, moral, or religious objection to any procedure without any consequences for the individual provider or institution. Michigan’s law, Mich. Comp. Laws §§ 20182-4 concern abortion, but other states have enacted broader provisions for refusing to provide other services, such as filling contraceptive prescriptions.
  • Required newborn procedures. State public health code usually specifies mandated procedures to be performed on newborns. As a rule, the parents have the right to opt out of most or all procedures. In Michigan, for example, only newborn screening and prophylactic eyedrops are mandated by statute. The legal duty to perform the procedures tends to attach to the provider, which is perhaps why parents are discouraged from opting out, often to the extent of simply being told, “it’s the law” that their child receive these procedures. Other procedures, such as Vitamin K and Hepatitis B vaccine administration, are also often characterized by providers as being legally required. Enforcement varies by state; New York is usually held out as the strictest state in requiring parents to accept the procedures for their child. Regardless, parents are increasingly sharing anecdotes of being threatened with reporting to Child Protective Services if they refuse this care.

References and Explanations

Frame 1. The building in the background is, of course, the U.S. Supreme Court building.

Frame 2. Count Dracula is refusing a transfusion because he is a practicing Jehovah’s Witness, as signified by the copy of The Watchtower tucked under his arm.

Frame 3. Parents do have to put their foot down on serious matters like broken legs and Sunday School attendance. Parents are empowered by law to make medical decisions for their minor children. Children cannot give informed consent, although they are – ideally – consulted to see whether they assent to care. Little Jimmy apparently does not.

Frame 4. Thanksgiving dinner, when the family is all present and dismantling a large bird, seems the ideal time to talk about donating body parts. It’s either that or politics, right?

Frame 5. The nurse in this illustration is invoking a conscience clause right to refuse to assist with an abortion. If the refusal seems sudden, that is because state law does not require providers to register their refusal at any given time – or indeed, forbid them from changing their stance at any time.

Frame 6. Tamesha Means’s less than forthright provider (see Tamesha Means v. United State Conference of Catholic Bishops, above) did not inform her that she was suffering from an infection that could ultimately prove life-threatening. Means was fortunate not to be permanently injured, unlike a case in Ireland that ended tragically. See the story of Savita Halappanavar.

Frame 7. Many providers believe that a signed informed consent form of the kind that is often required when a patient is admitted to a maternity care unit constitutes a contract that cannot be changed. Nothing could be farther from the truth. Consent can be revoked vocally at any time.

Frame 8. The topic of who decides for the fetus is a rich one – and much too complex to include in this cartoon. Move along now!

Frame 9. Medical malpractice liability is often held up as an excuse for ignoring informed consent requirements – or as an opportunity to blame lawyers. (Health care providers tend to forget that lawyers defend them too!) This frame seeks to make the point that there is no corresponding liability avoidance right for the provider that would trump the patient’s right to refuse care.

Frame 10. Continuous electronic fetal monitoring (EFM) for all pregnancies is the standard of care in the United States, even though it has not been shown to improve outcomes in low-risk pregnancies. (It does reduce the number of seizures suffered by newborns, but not to the extent that final outcomes are affected.) Furthermore, EFM has been shown to lead to an increase in cesarean sections. Maternity care patients in particular have been heard to remark with surprise that they seem to be responsible for upholding their right to consented-to care that is also evidence-based. One would think that it would be the provider’s responsibility to offer this care, but … blame the lawyers! In truth, the provider’s hands often are tied – usually by their own institution’s policies or their malpractice liability insurer’s rates.

Frame 11. See Required newborn procedures, above. The mother in this frame is musing on the likelihood of her one-day-old baby being exposed to Hep B by sharing needles with a cribmate.

pastafarian-800Frame 12. If you have not yet become acquainted with the Church of the Flying Spaghetti Monster, you can remedy that omission here. Perhaps the strategy suggested in this frame is inadvisable, since a Nebraska Federal District Court declined to recognize FSM as a religion. You can find a lovely stained glass panel representing the FSM here. The story behind an adherent of FSM (a “Pastafarian”) and her successful struggle to be permitted to wear her religious head covering in a state ID photo is documented here.

 

[Updated July 16, 2016, to add copyright designation.]

 


“[U]nconsented-to medical treatment is only generally a battery. Consent to a particular procedure may be “inferred from the patient’s action of seeking treatment or some other act manifesting a willingness to submit to a particular course of treatment.” [internal cite omitted]. Here, Carol came to the hospital for the purpose of medical treatment: the birth of Mikayla. The complaint itself admits that Carol had used marijuana and methamphetamines the week before giving birth to Mikayla. […] Insofar as we can determine from the pleadings and the record, Carol did not at any time communicate to any personnel at the hospital that she wished not to be tested for drugs. Testing Carol for drugs without first obtaining her consent did not constitute a battery here, where Carol unambiguously consented to the course of treatment — the birth of Mikayla — pursuant to which the drug test was conducted, and where Carol in no way communicated a desire not to be tested.”

I ran across the text above when looking for something else entirely in Michigan case law. In the 2008 case of Jodis v. Brubaker, the Michigan Court of Appeals apparently felt that when you enter a hospital to give birth, you automatically consent to anything your providers think is necessary, unless you explicitly tell your providers you do not consent to that procedure they haven’t told you about.

I will leave it to your imagination as to how this might play out for people in labor and what would happen if this scenario were extended to any other class of people seeking medical care.

What we have here is neither informed nor consent.