Saturday, November 13, 2010
Margo Kaplan (Brooklyn School of Law) has posted A 'Special Class of Persons': Pregnant Women’s Right to Refuse Medical Treatment after Gonzales V. Carhart on SSRN. Here is the abstract:
As several scholars have noted, the Supreme Court’s Gonzales v. Carhart decision upholding the federal Partial Birth Abortion Ban Act of 2003 (PBABA) represents a major departure from its previous abortion jurisprudence. What has received little attention is the ease with which Carhart’s rationale can be imported into cases involving the medical treatment of women who wish to continue their pregnancies to term. This article analyzes the implications of Carhart in a context that has thus far been overlooked and, in doing so, argues that its reasoning is broader and more troubling than the majority acknowledged or perhaps even intended.
While common and constitutional law protects the right to refuse medical treatment, courts have compelled the medical treatment of pregnant women on rare occasions, citing the states’ interest in protecting fetal life as recognized in abortion jurisprudence. Until Carhart, abortion jurisprudence provided very limited support for compelled medical treatment of pregnant women more generally. Carhart interprets the state interests in fetal life and maternal health so broadly that it essentially creates new, dubious state interests that, in the context of compelled treatment cases, expand state justifications for requiring medical treatment of pregnant women, even where such treatment would harm women’s health. The expansion of state power to compel medical treatment has disturbing implications for women’s liberty and equality. Carhart paves the way to designating women as a “special class of persons” who have more limited rights to bodily autonomy and informed consent. . . .