The Italian woman in Britain: The U.S. Constitution and forcible caesarean sections

December 3, 2013

Pregnant womanThe U.S. Constitution establishes a broad range of rights not only for U.S. citizens, but for all those present in the country.

While most individuals are cognizant primarily of the more prominent rights enshrined in the Constitution – such as the right to freedom of speech and of religion – some other rights may often be found to be far more important, at least on an individual basis.  And many of us do not appreciate these rights until we see what can happen to an individual not so fortunate as to be living under the protection of those rights.

In this case, the individual to whom I am referring is not hypothetical; it’s an Italian woman who was in the United Kingdom on a work trip.  According to British newspaper The Telegraph, the woman suffered a “mental breakdown,” which her family believes was “due to her failure to take regular medication for an existing bipolar condition.”

She was taken to a psychiatric facility, restrained, and kept there against her will when she had wanted to leave to return to her hotel.  The woman was pregnant at the time.

After five weeks in the ward, the woman was forcibly sedated, and her child was removed by caesarean section.  When she awoke, she was informed that her daughter had been surgically removed from her, and that the child had been “taken into care.”

During the woman’s stay up until the forced sedation and C section, the local social services had obtained a court order for the birth “to be enforced by way of caesarean section.”  So, this was all done properly under U.K. law.

The woman has since recovered from her psychiatric episode, but, at a hearing in the U.K., the judge refused to return the child to her mother – “because of the risk that she might suffer a relapse.”  As such, the judge ordered the child to be placed up for adoption.

Currently, the case has garnered international attention – mostly because of its patent atrociousness; indeed, many British politicians are now scrambling to conduct inquiries on the actions by social services, if, for no other reason than to quell fears of their constituents.

But those of us living under the protection of the U.S. Constitution should have nothing to fear: if any social services organization in the U.S. did what the British one did to the Italian woman, the state would be liable for potentially millions of dollars in civil damages for deprivation of the woman’s civil rights under 42 U.S.C. § 1983, the doctors who performed the C section would be facing serious tort liability (for assault, battery, medical negligence, etc), and all of the individuals involved in the case (both medical staff and social workers) would be facing criminal charges.  And all this is thanks to the Constitution.

Here are the ways in which the Constitution that would be violated if a U.S. social services organization had perpetrated the same acts as the British organization:

First, although the initial commitment of the woman to a psychiatric facility could have occurred in the U.S. – since the woman herself reported her breakdown to the police – she could have only been forced to stay if a psychiatric exanimation determined that she was an imminent danger to herself and others.  Further, there is no way that the woman could have been legally forced to remain more than a few days, much less five weeks, without a court order backed by a psychiatric evaluation indicating the need for further hospitalization.

In the Italian woman’s case, it seemed as though it was a temporary episode due to her failure to take her medications.  As such, it seems terribly unlikely that such a court order could have been obtained.  Thus, the five weeks of captivity at the hospital would have been gross violations of the woman’s rights under the Fourth and Fifth Amendments.

Along with the due process clause of the Fifth Amendment comes several other rights that would have been violated, had the U.S. Constitution applied to the social services actions in the U.K.

Not least among these is the right to bodily integrity, which prohibits intrusion by the state into the bodily actions and decisions of the individual whose person is at issue.  The involuntary sedation of the Italian woman, and removal of her child by C section by state actors, would have been a serious violation of this right.  In addition, these actions also would have violated the woman’s constitutional right to refuse medical treatment and procedures.

After the child was removed from her mother’s care, the state would also have ongoing violations of the woman’s constitutional right to rear her children, a right upheld by the Supreme Court prominently in 2000’s Troxel v. Granville.  Although the Constitution would likely have allowed temporary removal of the child from her mother (other blatant constitutional violations notwithstanding), serious grounds would be required to keep the child removed from her mother for the long term – and even more compelling reasons would be needed to place the child up for adoption.

In the Italian woman’s case, there is no evidence that there was an ongoing problem with the mother’s ability to parent her child of such gravity that would have necessitated the permanent removal of the child from her mother’s care.  Furthermore, U.S. courts routinely seek to place a removed child with relatives.  The courts in the U.K. did not make any attempts to do so – despite such relatives coming forward and offering to care for the child.

As you can see, then, the Constitution provides numerous safeguards to prevent such a travesty from occurring within any U.S. jurisdiction.  However, some commentators have claimed that “it happens [in the U.S.] too.”  But it actually doesn’t.

The one case cited by the Slate article referenced above, In re A.C., involved a 26-weeks pregnant terminally ill cancer patient who was given only days to live.  Hospital administration sought to have the fetus removed by C section without the consent of the woman and her family, and a court order was obtained authorizing as much.  The baby did not survive for more than several hours, and the mother died two days later.

The D.C. Circuit Court of Appeals vacated the order, finding that courts must always abide by a patient’s wishes, “unless there are truly extraordinary or compelling reasons to override them.”  The case has stood for the proposition that involuntary C sections are, by and large, manifestly unconstitutional.  The hospital later settled with the family for an undisclosed sum.

So there you have it: the Constitution protects against what the Italian woman suffered in Britain – in addition to a great deal of other infringements of rights.

Unfortunately, our Constitution has no power in the U.K. or in other sovereign nations – so a pregnant American traveling abroad may find herself in the same situation as the Italian woman.

And this is all the more reason why we shouldn’t take the Constitution for granted.