Chapter 6: Rights, Truth and Consent

Section 2.  Social Context

Here we shall look at a variety of rights as related to situations in health care and medicine.

Both the basic rights enjoyed by all humans and those specific to health care situations.

The basic right to life and to health imposes on all others the duty or obligation to refrain from harming life and health. These are negative rights that are both legal and moral.  There are other some positive rights as well. Already mentioned have been autonomy and privacy.  In addition to a much fuller exposition of autonomy and dignity as basic concerns, values and rights will now be presented in this chapter.


Pregnancy and the Issue of Autonomy  - Summary by James Rowe, QCC, 2005 

            Near the end of the pregnancy of her third child, twenty-seven-year-old Pamela Rae Monson, a resident of San Diego, California, began to experience vaginal bleeding caused by placenta previa, a condition which caused her physician to advise her to stay off her feet, to not take amphetamines, and to not engage in sexual intercourse throughout the remainder of her pregnancy. She did none of these things, and on November 23rd, after beginning to bleed again, she took illegal amphetamines and had sex with her husband, after which she delivered a severely brain damaged son who lived for only six weeks. The district attorney of San Diego went on to charge her with a misdemeanor, although the police desired that she be indicted for homicide, a charge which would be thrown out by a judge on the grounds that a prior ruling determined that an unborn child is unprotected under any child-abuse laws.

 The case of Pamela Rae Monson, despite the fact that she didn’t receive a conviction, opened the floodgates and allowed prosecutors in various states to consider the usage of the law to punish pregnant women that act in ways to harm the babies they are carrying, and as a result, two hundred women in thirty states were charged with imperiling their safety of their children by engaging in behaviour that put them at risk whilst they were still in the womb, the majority of these cases involving drug or alcohol usage by the mothers. To say the least, civil liberties groups were highly critical of this prosecution-centric approach towards dealing with fetal safety, to which the solicitor of Charleston said, “We’re really not interested in arresting women and sending them to jail. We’re just interested in getting them to stop using drugs before they do something harmful to their babies.”  Physicians involved with this were also likely motivated by the same desire towards fetal safety, but necessarily would this include the violation of their commitment to doctor-patient confidentiality, although prior rulings, such as in the case of gunshot wounds, have determined patient confidentiality is not to override all else under all circumstances. Aside from obvious differences betwixt gunshot wounds and behaviour antithetical towards fetal care, there arises unfortunate side effect of potentially of keeping mothers who abuse drugs or alcohol during pregnancy from seeking out medical attention and thereby endangering their child even more.

            The majority of cases which lead to convictions in fetal-abuse cases were subsequently overturned by higher courts, with one particular exception being a case where the Supreme Court of the state of South Carolina upheld the conviction of a woman who had smoked crack cocaine prior to calling paramedics about abdominal pain and cramps, later found to have been caused by the placenta detaching and suffocating the child, but allowed her on appeal to plead guilty to involuntary manslaughter and gave her a sentence consisting of two hundred hours of community service and three years of probation. The Supreme Court of the United States has also ruled on this matter, finding in a six-to-three decision in March of 2001 that overturned a Court of Appeals Decision in South Carolina (not related to the prior case) that it was unconstitutional to test pregnant women for drugs without warrant due to the Fourth Amendment protection against unlawful search and seizures. This case of Ferguson v. Charleston, involved an arrangement in Charleston that a public hospital and the city police had, which led to the formation of a program which would lead to the arrest of a cocaine-abusing pregnant mothers after they were found to have used the drug from a urine test. This program gave the option for women to enter a treatment program or to face trial under drug charges, with an aim at preventing unborn children from such drug abuse, and before Charleston eliminated its program, thirty women were arrested, although nearly all charges were dropped after the women agreed to participate in a drug rehabilitation program. One of these women, named Crystal Ferguson, was the Ferguson after which the case was named after. The ramifications of this Supreme Court ruling is that any program that involve the involuntary screening of pregnant women for drug use are illegal, and should the woman refuse to undergo a drug test, the state has little power to intervene on behalf of the unborn child.

            Two major points of contention also underline this issue, these being racial bias and the interest of the unborn child. As regards the first, a study conducted in Florida showed that urine collected in a one-month period in public health clinics and obstetrician offices demonstrated a fifteen percent occurrence of drug use amongst both black and white women, although it was also found that blacks were ten times more likely to be prosecuted than whites, with poor women also more likely to be prosecuted than those in the middle class. This has lead to some to speculate the reason for this is due to the drug of choice for black and white women being different, with a much higher usage of cocaine amongst black women, whilst white women seemingly prefer the usage of marijuana, a “safer” drug as regards fetal harm. As regards the second, the question as to what rights the fetus actually has, and how far the interests of the baby ought to be protected, is highly related to whether or not the courts consider an unborn baby a child (which most do not), whether or not anti-drug legislation can be used as a foundation to criminalize the “delivering” of drugs to the baby through maternal-fetal circulation, and what is to count as fetal abuse legally. These problems are further confounded by the interjection of the interests of the pregnant woman, with question arising concerning whether or not pregnancy not terminated by abortion commits the pregnant woman to treat her unborn child well, including the obligation to avoid drugs and alcohol above and beyond what is normal for a non-pregnant person or to avoid any action which could feasibly lead to a miscarriage, and subsequently, the death of the child. There is also the question of whether or not the woman is to be legally mandated to subordinate any desire of hers that conflicts with what is mandated to be in the best interest of the fetus by a valid medical source.

            As is the case with many issues in medical ethics, the controversy has not been resolved and questions regarding the intervention of the state and the responsibilities of the mother to her child are still up in the air.


The topic of rights in health care will appear again as a focus topic for a chapter as this text will conclude in its final chapter with an examination of the concept of a Right to Health Care itself. Does such a right exist? If it does it would be a positive right? But what type of a positive right? Based upon what ground, precept or principles? Is it unlimited ?  More on this later.

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© Copyright Philip A. Pecorino 2002. All Rights reserved.

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