'Craziest thing': Women in labor get shock hearings as judge dictates how they give birth
On the afternoon of Sept. 9, 2024, Cherise Doyley was in her 12th hour of contractions at University of Florida Health in downtown Jacksonville when a nurse came in with a bedsheet and told her to cover up. A supervisor brought a tablet to Doyley’s bedside. Gathered on the screen were a judge in a black robe and several lawyers, doctors and hospital staff.
“It’s a real judge in there?” Doyley asked the nurse at the beginning of what would be a three-hour hearing. “Now this is the craziest thing I’ve ever seen.”
Doyley hadn’t asked for the hearing. The hospital had sought it. Doyley had mere minutes to prepare. She had no lawyer and no advocate — no one to explain to her what, exactly, was going on.
Judge Michael Kalil informed her that the state had filed an emergency petition at the hospital’s behest — not out of concern for Doyley, per se, but in the interest of her unborn child. He described the circumstances as “extraordinary.”
The hospital and state attorney’s office wanted to force Doyley to undergo a cesarean section. Doyley, a professional birthing doula, didn’t want that and had been firm about it. She’d had three prior C-sections, one that resulted in a hemorrhage, and hoped to avoid another serious complication and lengthy recovery. She was aware that doctors were concerned about the risk of uterine rupture, a potentially deadly complication for her and her baby. She would say during the hearing that she understood the risk to be less than 2% and didn’t want to agree to a C-section unless there was an emergency.
But the choice would not be hers. The judge would decide how she would give birth.
Mentally competent patients typically have the right to choose their medical care — or refuse it. But there is one notable exception: pregnant patients. That inconsistency is particularly striking in Florida, a state that has pushed to expand medical freedom for those who wish to avoid vaccines or fluoridated water, while constricting the rights of people in various stages of pregnancy.
“There aren’t any other instances where you would invade the body of one person in order to save the life of another,” said Lois Shepherd, a bioethics expert at the University of Virginia School of Law.
In Florida and many other states, court-ordered medical procedures are just one of the ways pregnant patients’ rights are restricted. The effort to chip away at those rights is rooted in the concept of fetal personhood — that a fetus has equal and, in some cases, more rights than the woman sustaining it.
The link between fetal personhood and court-ordered C-sections dates back to the 1980s, when courts started ruling that hospitals can override patients’ decisions in favor of the health of unborn children.
In the years since, proponents of fetal personhood began to push for even broader legal protections. In 1986, Minnesota was the first state to recognize fetuses as victims in homicide cases. Some states have imprisoned pregnant women for exposing their fetuses to drugs. Nearly 30 states have passed laws that allow hospitals to invalidate pregnant patients’ advance directives, which outline the kinds of life-sustaining treatment a person wants after a catastrophic illness or accident. At least one, Alabama, extended the concept of personhood all the way to the earliest stages of fertilization and conception by giving frozen embryos the same legal status as children, though the Legislature later said the law couldn’t be enforced.
And the fetal personhood movement has accelerated in the past several years, supercharged by the U.S. Supreme Court decision to reverse the abortion rights that had been protected by Roe v. Wade.
Florida has long been at the forefront of fetal personhood policies. The state was one of the first in the country to prosecute a woman for “delivering” drugs to her fetus during pregnancy in 1989, although the Florida Supreme Court later overturned her conviction. And after advocates twice failed to get a fetal personhood amendment on the state ballot, the Legislature is now considering a bill that would enshrine the concept in state law by giving embryos and fetuses the same legal status as people in wrongful death suits.
For women in labor, the potential impact of the bill is clear: Experts anticipate their medical needs could be further diminished in favor of the fetuses’.
Several legal experts told ProPublica they are alarmed by Doyley’s case and the legislation’s potential to allow for more court interventions during childbirth. Lawyers who represent women in fetal personhood cases already have identified a higher number of forced C-sections in Florida than other states.
The state attorney’s office for the 4th Judicial Circuit declined to comment on Doyley’s case, saying a response would violate her medical privacy. But in an email, a spokesperson noted why, in general, the office would intervene: “The courts have held that the State has a compelling interest in the preservation of the life of an unborn child and the protection of innocent third parties who may be harmed by the parental refusal to allow or consent to life-saving medical treatment.”
C-sections account for nearly a third of all deliveries in the United States. They can be necessary when babies are breech, or in the wrong position for birth, as well as in cases of maternal or fetal emergency. But in other cases, such as slow laboring or prior C-sections, the need for the surgery is less clear.
Surveys have found that more than 10% of women feel pressured into C-sections and other procedures by doctors worried about injuries to the baby. Patients generally don’t challenge doctors who say they’re necessary, and it is uncommon for someone to hold out and for the hospital to turn to the courts.
It is so rare, in fact, that advocates for the rights of pregnant women were shocked to discover that the same thing that happened to Doyley had happened to another Florida woman just a year and a half earlier.
The similarities in their cases were striking. Both women had three prior C-sections. They had questioned the need for their previous surgeries and arrived prepared to fight for vaginal births. And both women are Black.
They had argued that compelling them to have C-sections violated their rights to make medical decisions. Hospital staff said their medical decisions threatened the health of the fetus. It would be up to the courts to decide which one mattered more.
Asked to consider the constitutionality of court-ordered C-sections, the U.S. Supreme Court declined in 1994, leaving a patchwork of decisions that vary by state.
In the early 1980s, a hospital in Georgia won a court order to force a woman with a dangerous pregnancy complication to have a C-section. Then, in 1987, a judge in Washington, D.C., approved a request to perform surgery on a pregnant woman dying from cancer without her consent. Later, a higher court reversed that ruling and held that hospitals should not override medical decisions. An Illinois appellate court in 1993 refused to order a woman to undergo a C-section.
Not long after, a patient named Laura Pemberton, who did not want a C-section, left a hospital in Tallahassee, Florida, against medical advice. A local judge sent law enforcement to her house to bring her back. Once she returned to the hospital, the judge ordered her to have a C-section, which doctors carried out. She later sued in federal court and lost. The 1999 decision by a federal district judge found that the state had a right to override her wishes.
“Whatever the scope of Ms. Pemberton’s personal Constitutional rights in this situation, they clearly did not outweigh the interests of the State of Florida in preserving the life of the unborn child,” the decision said. The decision marked a legal turning point in prioritizing fetal rights over the religious freedom and bodily autonomy of the mother.
In 2009, Samantha Burton arrived at the same hospital at 25 weeks pregnant, after going into premature labor. Doctors told her she needed to remain on bed rest, but she wanted to leave and go home to her children. The hospital got a court order for her to remain in the hospital and undergo any treatment doctors deemed necessary to save the fetus. She had an emergency C-section, and the baby was stillborn.
She appealed the ruling granting the emergency order, and a Florida appeals court ruled in her favor. They said the circuit judge should have required the hospital to prove the baby was viable before imposing unwanted treatment, but the court stopped short of saying it was unacceptable to override the medical decisions of pregnant women in all situations.
Pregnancy is the only condition where Florida courts have ruled that a patient can be forced to undergo unwanted treatment. Even a state prisoner on a hunger strike has more rights to make medical decisions.
Those rulings give the state vast control over pregnant women.
“All of it essentially is about the state’s ability to decide that a fetus, at any point during a pregnancy, is more important than the person who’s pregnant,” said Rutgers University law professor Kimberly Mutcherson.