Autonomy and Connectedness: A Re-evaluation of Georgetown and its Progeny

Perhaps the most notable U.S. case was Re A.C. 533 A.2d 611 (D.C. App. 1987); 573 A.2d 1235 (D.C. App. 1990).

See, for example, Scott R. , Rights, Duties and the Body: Legal and Philosophical Reflections on Refusing Medical Treatment during Pregnancy (Oxford: Hart Publishing, forthcoming).

See, for example, Re A.C. (1987 and 1990) and Re Fetus Brown, 294 Ill. App. 3d 159 (Ill. App. 1 Dist. 1997).

Rather, it has often been considered by writers concerned with the problem of “maternal-fetal conflict,” See, for example, Rhoden N. , “The Judge in the Delivery Room: The Emergence of Court-Ordered Cesareans,” 74 California Law Review (1986) 1951–2030; Nelson L. Buggy B. Weil C. , “Forced Medical Treatment of Pregnant Women: ‘Compelling Each to Live as Seems Good to the Rest,’” 37 Hastings Law Journal. (1986) 703–763. For examples of literature touching on the Georgetown line of cases but not otherwise mentioned in this note, see, for example, Koehne J. , “Witnesses on Trial: Judicial Intrusion upon the Practices of Jehovah's Witness Parents,” (1993) 21 Florida State University Law Review 205–222; Rillo T. , “Case Comment: Constitutional Law: The Limits of a Patient's Right to Refuse Medical Treatment” (1994) 46 Florida Law Review 347–354.

331 F.2d 1000 (1964); 331 F.2d 1010 (1964).

Wons v. Public Health Trust of Dade County , 500 So .2d 679, 683 (Fla. App. 3 Dist, 1987), per Justice Newbold, as cited by Justice Hubbart.

211 N.Y. 125, 129–130 (1914).

464 F.2d 772 (1972).

Notably Re Quinlan, 355 A.2d 647 at 663, which gave the right to refuse medical treatment a privacy grounding, based on Roe v. Wade, 35 L.Ed 2d 147 (1973).

In Cruzan v. Director, Missouri Department of Health, 111 L.Ed.2d 224 (1990) the U.S. Supreme Court assumed the right to refuse treatment, but shifted the analysis away from privacy reasoning, holding that the question whether a person's right to refuse medical treatment is protected by the federal Constitution is properly analyzed in terms of the person's liberty interest under the Due Process Clause of the Fourteenth Amendment, rather than in terms of a generalized right of privacy. Subsequent cases have gone both ways, adopting either the more traditional privacy analysis or the Cruzan approach; although some have suggested that there is no such liberty interest at all, holding that it was assumed in Cruzan: See, for example, Washington et al. v. Glucksberg et al. , 138 L.Ed 772 (1997).

For instance in the 1977 case of Superintendent of Belchertown State School v. Saikewicz (370 N.E.2d at 425) Justice Liacos observes: “As distilled from the cases, the State has claimed an interest in: (1) the preservation of life; (2) the protection of the interests of innocent third parties; (3) the prevention of suicide; and (4) maintaining the ethical integrity of the medical profession.”

331 F.2d at 1008.

49 L.Ed. 643 (1904).

331 F.2d at 1008.

One set of academics has described the judge's conclusions as “lack[ing] any precedential foundation.” See Nelson L. , supra note 4 at 758.

Judge Washington filed a concurring statement. Judge Danaher voted to dismiss the petition for lack of a case or controversy. Judge Miller filed a dissenting opinion in which Judges Bastian and Burger concurred. Chief Justice Burger filed a statement in which Judges Miller and Bastian concurred.

331 F.2d at 1016, note 4.

Judge Miller, in his opinion dissenting from the court's decision to deny the petition for rehearing observed, at 1014: “These procedural defects are … fatal to the validity of the purported orders entered September 17 by a single judge when no appeal had actually been filed. … I object to the order which merely denies the petition for rehearing, without more, because it leaves in effect the two orders of September 17 as orders of this court which may be cited hereafter as precedents… for the summary administration of blood transfusions against the will of the patient. …”

Writing shortly after the case, one academic speculated as to the reasons for a finding of incompetence: “That an individual's choice is seemingly inconsistent with the general mores of society should not, in itself, afford a basis for a finding of non composmentis.” Case Comment: “Constitutional Law—Transfusions Ordered for Dying Woman over Religious Objections,” 113 University of Pennsylvania Law Review (1964) 290–297, 294. This is a notorious and pervasive problem in determinations of competence generally.

Kennedy I. Grubb A. , Medical Law: Text with Materials (London: Butterworths, 2nd edition, 1994) at 372–374.

Re Osborne, 294 A.2d 372 (1972) at 375; Wons v. Public Health Trust of Dade County, 500 So.2d at 686; Re Dubreuil, 629 So.2d 819 at 824.

For a less favorable interpretation of the case, see Annas G. , “Forced Cesareans: The Most Unkindest Cut of All,” 12 Hastings Center Report (June 1982) 16, 17. He argues that Georgetown is illustrative of the poor quality of emergency judicial decisionmaking and notes that Judge Burger cited Justice Cardozo on judicial restraint. In a further article he suggests that when a judge is called upon to make a decision in an emergency situation, “he or she is acting much more like a lay person than a jurist”: “Protecting the Liberty of Pregnant Patients,” 316 New Engl. J. Med. (1987) 1213–1214, 1213. N. Rhoden notes two of the reasons I have cited in this paragraph—relating to patients' rights and the competence of the patient in Georgetown—and hence queries the precedential value of Georgetown (and other early cases), 1973 supra note 4.

Public Health Trust v. Wons, 541 So.2d 96 (S.Ct Fla 1989) at 97.

Wons v. Public Health Trust of Dade County, 500 So.2d at 683. Cited by Overton J, (diss.) in Public Health Trust v. Wons, 541 So.2d at 102.

331 F.2d at 1008, per Justice Wright.

Fosmire v. Nicoleau 551 N.E. 2d 77 (N.Y. C.A. 1990) at 83.

629 So.2d 819 (1993).

Id. at 829.

120 L.Ed.2d 674 (1992).

Id. at 698–699. See also the opinion of Justice Blackmun.

As noted by Judge Warner (dissenting) in the Court of Appeal of Florida in Re Dubreuil, 603 So.2d 538, 544 (1992).

603 So.2d at 545, citing J.V. v. State, 516 So.2d 1133 (Fla. 1^st DCA 1987).

Case Comment, supra note 19 at 294.

294 A.2d 372 (D.C. C.A. 1972).

541 So.2d 96 (S.Ct Fla 1989).

500 So.2d 679 at 688, per Judge Hubbart.

564 N.E.2d 1017 (Sup. Jud. Ct Mass, 1991). In this case, which concerned a mother's decision to refuse a blood transfusion, the court found that there would be no abandonment of the minor child because the father, his sister and brother-in-law all supported her decision and were willing and able to take care of the child.

541 So.2d at 98.

529 A.2d 404 (N.J. S.Ct 1987).

Id. at 413, per Judge Garibaldi.

541 So.2d at 102.

500 So.2d 679 at 688, per Judge Hubbart.

551 N.E.2d 77 (N.Y. C.A. 1990).

Id. at 84.

Id. at 83.

In this regard, one academic has made the point that overriding parents' treatment refusals in order to prevent “abandonment” is unfair when other parents are allowed to “abandon” their children, for instance by putting them into foster care. Rhoden N. , supra note 4, 1974–5. The same argument is made by K. Lomond in “An Adult Patient's Right To Refuse Medical Treatment For Religious Reasons: The Limitations Imposed By Parenthood” (1993) 31 University of Louisville Journal of Family Law: At 665–683, who suggests that allowing a parent to have his/her child or children adopted could be a solution in the case where otherwise a child will have no family members to care for it (at 680).

551 N.E.2d at 83.

Id. at 84.

N. Rhoden made a similar point some four years earlier, supra note 4 at 1975.

551 N.E.2d at 84.

370 N.E.2d at 426, per Justice Liacos, footnote omitted. The case concerned an incompetent patient and the application of the substituted judgment doctrine.

“Running through all of these decisions, however, is the court's deeply imbedded belief, rooted in our constitutional traditions, that an individual has a fundamental right to be left alone so that he is free to lead his private life according to his own beliefs, free from unreasonable governmental interference.” 500 So.2d at 686–7, per Judge Hubbart, cited by Judge Ehrlich at 541 So.2d 98.

On this aspect see also Norwood Hospital v. Munoz, 564 N.E.2d 1017 in which Chief Justice Liacos cited his passage from Saikewicz and also cited a passage from Brophy v. New England Sinai Hospital, 497 N.E.2d 626 (1986), as follows: “The duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual [herself] would feel that efforts to sustain life demean or degrade [her] humanity.” At 1023.

541 So.2d at 103.

Id. at 104.

Id. at 100.

Id. at 102.

Raz J. , The Morality of Freedom (Oxford: Oxford University Press, 1986): At 256.

Id. at 247.

Raz J. , “Right-based Moralities,” (1982) in Waldron J. , Theories of Rights (Oxford: Oxford University Press, 1984): 182–200, at 191.

Raz J. , “Rights and Individual Well-Being,” first published in 5 Ratio Juris 2 (July 1992), repr. in his Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford: Oxford University Press, 1994) 44–59, 58–59.

603 So.2d 538 (1992); 629 So.2d 819 (1993).

“In this day and age where we have long since abandoned the notion that a wife is the husband's ‘property,’ I would think that it would be universally recognized that he cannot overrule her conscious decisions regarding her own body.” 603 So.2d 538 at 542; 602 So.2d 819 at 827.

603 So.2d at 541.

629 So.2d at 823.

Id. at 827.

Id. It might be noted that Chief Justice Barkett observed that “although not intended by the district court, its rationale could be read by some to perpetuate the damaging stereotype that a mother's role is one of caregiver, and the father's role is that of an apathetic, irresponsible, or unfit parent.” Id. at 828.

629 So.2d at 826.

Rhoden N. , supra note 4 at 1974.

See, for example, Grubb A. “Treatment Decisions: Keeping it in the Family,” in Grubb A. (ed.), Choices and Decisions in Health Care (Chichester: John Wiley & Sons, 1993): 37–96, discussing other medical decision-making contexts.

For support for this view see, for example, the U.S. Supreme Court's decision in Cruzan v. Director, Missouri Department of Health, 111 L.Ed.2d 224 (1990). The court considered that a competent person has a constitutionally protected liberty interest in refusing medical treatment. Justice O'Connor (who concurred with the joint opinion) stressed that the liberty guaranteed by the Due Process Clause protects, “if anything,” a person's “deeply personal” decision to refuse unwanted medical treatment (at 249). See also the Court's abortion decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 120 L.Ed.2d 674 (1992), in which the joint opinion (Justices O'Connor, Kennedy and Souter) stressed that intimate decisions such as that of abortion, which concern the “meaning of procreation” are the subject of reasonable disagreement, stating that “… reasonable people will have differences of opinion about these matters.” In contrasting different views about abortion, the joint opinion emphasized that “[t]hese are intimate views with infinite variations” and stressed “their deep, personal character.” At 699, first emphasis in original; second added.

See Scott R. , supra note 2, chapter 7, regarding the issue of compelled caesareans.

As other scholars have noted, although it may sound rhetorical, in fact it is not rhetorical to describe the procedure of a compelled caesarean, or compelled donation of an organ by a parent to a born child, in these terms: “We describe the implications… this way, not as an exercise in inflammatory rhetoric, but to make evident the very harsh implications for pregnant women or parents of accepting the view in question.” Callahan J.C. Knight J.W. , “Women, Fetuses, Medicine and the Law,” Holmes H.B. Purdy L. , eds., Feminist Perspectives in Medical Ethics (Indianapolis: Indiana University Press, 1992): 224–239 at 233.

114 Daily Wash Law Rptr. 2233 (D.C. Super.Ct. July 26, 1986). Published as appendix to Re A.C., 573 A.2d 1235, 1262 (D.C.App. 1990).

632 N.E.2d 326, 335 (Ill. App. 1 Dist. 1994), per Presiding Judge DiVito.

573 A.2d at 1244, note 8.

632 N.E.2d at 335. The point is also aptly put by Elias S. Annas G. , in their Reproductive Genetics and the Law, who ask: “Do we really want to restrain, forcibly medicate, and operate on a competent, refusing adult? Such a procedure … is certainly brutish and not what one generally associates with medical care.” (At 259.)

294 Ill. App. 3d 159 (Ill. App. 1 Dist. 1997).

632 N.E.2d at 333.

For a detailed discussion applying Casey in the treatment context, see Scott R. , supra note 2, chapter 4.

For a different analysis, see Binder N. , “Note: Taking Relationships Seriously: Children, Autonomy, And The Right To A Relationship” (1994) 69 New York University Law Review 1150–1175. Binder argues that although the parent's interest is more compelling, protecting the parent's autonomy by allowing him/her to refuse medical treatment denies the “emergent autonomy interest” of the child (at 1174). Binder's concern is apparently with the child's “relational interest” with its parent. In the most obvious senses, clearly this cannot continue once a parent has died. But my analysis has tried to suggest that the recognition of the value and meaning of the individual parent's life can itself contribute both to the child's understanding of that relationship (though clearly age will be relevant here) and to the child's developing and future autonomy. Overall, however, Binder argues that it is primarily through the family that autonomy develops such that the value of the family inheres in the way it can promote the autonomy of all of its members. This is not inconsistent with my approach.

Lomond K. , supra note 47, who suggests that allowing a parent to have his/her child or children adopted could be a solution which would satisfy the State's interest in cases where otherwise a child will have no family members to care for it (at 680).

On rights as common goods see Raz J. , supra note 64.