Summary Angela C. was a twenty-eight-year-old married woman who was approximately twenty-six weeks pregnant. She had suffered from cancer since she was thirteen-years-old but had been in remission for approximately two years before she became pregnant. The pregnancy was planned, and she very much looked forward to the birth. Her health seemed reasonably good until about the twenty-fifth week of pregnancy, when she was admitted to George Washington University Hospital and a tumor was found in her lung.
Within a few days the physicians determined that her condition was terminal, and she would die within weeks. At approximately 4:00p.m. on June 15, 1987, she was told that she might die much sooner. Because her fetus would have a much better chance to be born healthy at twenty eight weeks or more gestation, she agreed to treatment that might help her survive longer but insisted that her own care and comfort be primary.
Ms. C’s husband, her mother, and her physicians agreed that keeping her comfortable while she died was what they wanted and that her wishes should be honored. The next morning this information was communicated to hospital administration. Legal counsel was consulted, who decided to consult the university’s outside counsel. Outside counsel asked a judge to come to the hospital to decide what to do.
A hearing convened at the hospital consisting of legal counsel for the hospital, Angela C. and her fetus. The lawyers’ arguments focused not on what Angela wanted or even on her best interests, but on the best interests of the fetus and on Angela’s terminal condition. The judge ruled that, considering the fact that Angela would probably die within twenty-four to forty-eight hours, “the fetus should be given an opportunity to live” and agreed with the cesarean section.
The doctor was to perform the cesarean section spoke with Angela after the judge’s decision and informed her of the outcome of the proceedings. The doctor repeated to Angela that he would not do the cesarean without her consent. Angela clearly mouthed that she didn’t want the cesarean section done. Having been informed of this exchange, the judge concurred and reaffirmed his original order. An appeal was attempted but ultimately was denied by the judge.
The cesarean section was performed, and the nonviable fetus died approximately two hours later. Angela died two days later.
Article: At Law – She’s Going to Die: The Case of Angela C
By George J. Annas
Hastings Center Report, February/March 1988
George J. Annas is Utley Professor of Health Law and Chief, Health Law Section, Boston University Schools of Medicine and Public Health.
Angela C was a twenty-eight-year old married woman who was approximately twenty six weeks pregnant. She had suffered from cancer since she was thirteen years old but had been in remission for approximately two years before she became pregnant. The pregnancy was planned, and she very much looked forward to the birth. Her health seemed reasonably good until about the twenty fifth week of pregnancy, when she was admitted to George Washington University Hospital, and a tumor was found in her lung.
Within a few days the physicians determined that her condition was terminal, and she would die within weeks. At approximately 4:00 p.m. on June 15, 1987, she was told that she might die much sooner. Because her fetus would have a much better chance to be born healthy at twenty eight weeks or more gestation, she agreed to treatment that might help her survive longer but insisted that her own care and comfort be primary.
Ms. Cs husband, her mother, and her physicians agreed that keeping her comfortable while she died was what she wanted and that her wishes should be honored. The next morning this information was communicated to hospital administration. Legal counsel was consulted, who decided to consult the university’s outside counsel. Outside counsel asked a judge to come to the hospital to decide what to do.
Judge Emmet Sullivan of the District of Columbia Superior Court summoned volunteer lawyers, and with a police escort rushed to the hospital where he set up “court.” Legal counsel was, of course, present for the hospital. In addition, lawyers were appointed to represent Mrs. C, and her fetus, and the judge invited the District of Columbia Corporation Counsel to participate as well. The lawyer for the hospital opened the proceeding:
[T]he apparent desire of the patient and her family is that if the patient is to die, that no intervention be done on behalf of the fetus. The hospital is seeking declaratory relief from the court to direct the hospital as to what it should do in terms of the fetus, whether to intervene and save its life.
The lawyer for the fetus expressed the view that the fetus was “a probably viable fetus, presumptively viable fetus, age twenty-six weeks,” and that the court’s task was to “balance” the interests of the fetus “with whatever life is left for the fetus’s mother…” Ms. C’s lawyer argued simply that she opposed surgical intervention to remove the fetus.
Her attending physician, Louis Hamner, testified that Ms. C had agreed to have the child at twenty-eight weeks, but that because the odds of a major handicap were much higher at twenty six weeks gestation, she did not want the fetus delivered earlier. He said Ms. C was heavily sedated and would likely die within twenty four hours.
A neonatologist testified hypothetically, having “had no direct involvement with the mother or the family.” She strongly supported intervention on the basis that for any individual fetus, survival and morbidity are “very difficult to predict.” When pressed she put the likelihood of fetal viability at 50 to 60 percent and the risk serious handicap at less than 20 percent.
The patient’s mother testified that the previous day, after her daughter had been informed that her condition was terminal, she said, “I only want to die, just give me something to get me out of this pain.”
Hospital counsel then asked the court to decide “what medical care, if any, should be performed for the benefit of the fetus of [Ms. C].” The lawyers’ arguments focused not on what Ms. C wanted or even on her best interests, but on the best interests of the fetus and on Ms. C’s terminal condition. The lawyer for the fetus, for example, urged that a cesarean be performed because, “sadly, the life of the mother is lost to us no matter what decision is made at this point.” Ms. C’s lawyer, on the other hand, argued the case on the basis of Ms. C’s wishes, noting (correctly) that “we can’t order abortions even to protect the post-viability and potentiality of life if a woman objects.” The lawyer for the District of Columbia argued that Ms. C’s interests need not concern the court because of the “sad fact” that “the mother will die regardless of what we do….” A subsequent exchange between Ms. C’s lawyer and Judge Sullivan captures the essence of the hearing.
Mr. Sylvester: As I see this, as I understand the medical testimony, if we were to do a C-section on this woman in a very weakened medical state, we would in effect be terminating her life, and I can’t –
The Court: She’s going to die, Mr. Sylvester.
The lawyer for the fetus concluded: “All we are arguing is the State’s obligation to rescue a potential life from a dying mother.” The judge took a short recess and then issued his opinion orally. The decisive consideration was Ms. C’s terminal condition: ”The uncontroverted medical testimony is that Angela will probably die within the next twenty-four to forty-eight hours.” He did “not clearly know what Angela’s present views are” respecting the cesarean section but found that the fetus had a 50 to 60 percent chance to survive and a less than 20 percent chance for serious handicap. The judge concluded: “It’s not an easy decision to make; but given the choices, the court is of the view the fetus should be given an opportunity to Iive.” He cited only one case, an unreported 1986 opinion from the District of Columbia Court of Appeals (the only case anyone present had a copy of). That case was based in large part on dicta from a New Jersey case that had previously been largely overruled and was, in any event, easily distinguishable.
After the Hearing
Shortly after the court recessed at 4:15 p.m., Hamner informed Ms. C of the decision. Ms. C was on a ventilator but was able to mouth agreement. The court reconvened upon learning that Ms. C was awake and communicating.
The chief of obstetrics, Alan Weingold reported a more recent discussion with the patient in which she “clearly communicated” and after being informed that Hamner would only do the cesarean section if she consented to it, “very clearly mouthed words several times, l don’t want it done. I don’t want it done.” Hamner confirmed this exchange. Weingold concluded:
I think she’s in contact with reality, clearly understood who Dr. Hamner was. Because of her attachment to him wanted him to perform the surgery. Understood he would not unless she consented and did not consent. This is, in my mind, very clear evidence that she is responding, understanding, and is capable of making such decisions.
The judge indicated that he was still not sure what her intent was. Counsel for the District of Columbia then suggested that her current refusal did not change anything because the entire proceeding had been premised on the belief that she was refusing to consent. In his words, “I don’t think we would be here if she had said she wants it.” The judge concurred and reaffirmed his original order.
Less than an hour later three judges heard by telephone a request for stay of at least fifteen minutes so that arguments could be heard. Ms. C’s lawyer told the judges that the cesarean section had been scheduled for 6:30 p.m., which gave them approximately sixteen minutes to hear arguments and make a decision. He argued that the cesarean section would likely end Ms. C’s life, and that it was unconstitutional to favor the life of the fetus over that of the mother without the mother’s consent. The lawyer for the fetus argued that Ms. C had no important interests in this decision because she was dying; “unintended consequences on the mother” are “insignificant in respect to the mother’s very short life expectancy.” The state’s interest, she said, “overrides any interest in the mother’s continued very short life, which is under heavy medication and very short duration.”
A discussion ensued about the possibility of the fetus surviving, which the chief judge cut short by asking: “Let me ask you this, if it’s relevant at all. Obviously, the fetus has a better chance than the mother?” The lawyer for the fetus responded, “Obviously. Right.” A few minutes later, the court denied the request for a stay, reserving the right to file an opinion at a later date. The proceeding was concluded at 6:40 p.m.
What Went Wrong?
The cesarean section was performed, and the nonviable fetus died approximately two hours later. Ms. C, now confronted with both recovery from major surgery and the knowledge of her child’s death, died approximately two days later. Five months later the Court of Appeals issued its written opinion (in re A.C. D.C. Ct. Appeals, No. 87-6009, Nov. 10, 1987). The opinion reads more like a Hallmark sympathy card. Its first paragraph, for example, concludes:
“Condolences are extended to those who lost the mother and child. The court acknowledged that its opinion might “reasonably” be seen as ”self-justifying” and then went on to rationalize the denial of the stay.
The opinion rests on a number of false assumptions. The most serious error is the statement that “as a matter of law, the right of a woman to an abortion is different and distinct from her obligations to the fetus once she has decided not to timely terminate her pregnancy. This is incorrect as both a factual and legal matter. Ms. C never “decided not to timely terminate her pregnancy,” and because of her fetus’s effect on her health, under Roe v. Wade she could have authorized her pregnancy to be terminated (to protect her health) at any time prior to her death. In essence, the court forced Ms. C to have an abortion prior to her death, doing so on the false premise that a terminal diagnosis strips a pregnant woman of her constitutional rights.
The second basis for the opinion is that a parent cannot refuse treatment necessary to save the life of a child (true) and therefore a pregnant woman cannot refuse treatment necessary to save the life of her fetus (false). The child must be treated because parents have obligations to act in the “best interests” of their children (as defined by child neglect laws), and treatment in no way compromises the bodily integrity of the parents. Fetuses, however, are not independent persons and cannot be treated without invading the mother’s body. There are no “fetal neglect” statutes, and it is unlikely that any could withstand constitutional scrutiny. Treating the fetus against the will of the mother degrades and dehumanizes the mother and treats her as an inert container. This is acceptable once the mother is dead but is never acceptable when the mother is alive. The court seems to understand this, at least at the instinctive level, and thus ultimately justified its opinion on the basis that Ms. C was as good as dead and had no “good health” to be “sacrificed.” “The cesarean section would not significantly affect A.C.’s because she had at best, two days of sedated life…” But this reasoning will not do. It would, for example, permit the involuntary removal of vital organs prior to death when they were needed to “save a life.” But if the child had already been born, no court (not even this one) would require its mother to undergo major surgery for its sake (for example, a kidney “donation”) no matter how dire the potential consequences of refusal to the child. And certainly, no court would ever require the father of a child to undergo surgery, even to save the child’s life. The ultimate rationale for the decision may be purely sexist: this situation could never apply to males like these judges; they are unable to identify with the pregnant woman and thus need not concern themselves about the future application of their decision to themselves.
This is a cavalierly lawless and unprincipled opinion that merits condemnation and reversal. The proper question the opinion poses is not whether the patient was competent, but whether the lawyers and judges were competent. What went wrong with the judicial process? At least three things: (1) the emergency nature of the hearing and the question asked of the judge; (2) the refusal to recognize the patient as a person with rights; and (3) the self-justifying nature of the appeals court’s opinion.
This case illustrates the general rule that judges should never go to the hospital to make emergency treatment decisions. First, judges know nothing about treatment decisions. Judges can render an opinion about the lawfulness of a proposed course of treatment or nontreatment (although even this is seldom needed). But to ask judges to make the treatment decision to protect the hospital from some speculative potential liability simply invites them to play doctor, something they might enjoy, but something about which judges possess no more competence than the average person on the street. Rushed to an unfamiliar environment, asked to make a decision under great stress, and having no time either for reflection or to study existing law and precedents, a judge cannot act judiciously. Facts cannot be properly developed, and the law cannot be accurately determined or fairly to the facts. The “emergency hearing” scenario invites arbitrariness.
The only reason a judge should ever go to a hospital is to determine the competence of a patient. This is a proper judicial task. Thus, it is astonishing that the judge never even bothered to go the short distance to her hospital room to talk directly with Ms. C. the reason, of course, is that he viewed her simply as an inanimate container and so didn’t care what the container’s wishes were; this is what makes the decision so offensive. Angela C was legally presumed competent, did not consent to the surgical intervention, and surgery was ultimately performed over her express objection. She was totally dehumanized, her wishes and best interests ignored.
Finally, the appeals court did not act like an appeals court. It initially heard brief arguments over the phone and made a snap decision. It did not wait for the “trial” judge to write a more formal opinion before issuing its own; did not hear or invite arguments from the parties; and ultimately wrote a “self-justifying” opinion instead of a neutral and fair rendering of the law.
When asked how he would make decisions on the U.S. Supreme Court in his confirmation hearings, Judge Anthony Kennedy replied that he would carefully consider all of the facts, listen to the legal arguments, review all of the legal precedents, and then reflect long and hard about the case and how to apply the law to the facts properly to arrive at a fair and just opinion. Many commentators were disappointed in this response, noting that it was just a summary of what judges do. In fact, it is a summary of what judges do. In fact, it is a summary of what judges should do, but unfortunately does not in any way reflect what the judges involved in Ms. C’s case did. They treated a live woman as though she were already dead, forced her to undergo an abortion, and then justified their brutal and unprincipled opinion on the basis that she was almost dead and her fetus’s interests in life outweighed any interest she might have in her own life or health. This is what happens when judges (and hospital lawyers that call them) forget what judging is all about and combine rescue fantasy with dehumanization of the dying.
This was not a hard case. The patient’s wishes should have been honored. If there really were facts in dispute, a case conference involving the patient, family, and all attending health care personnel could have been held to assess them. Direct communication with the patient is almost always the most useful and constructive response to “problems” like those presented by this case. Calling a judge was a counterproductive panic reaction.
Angela C: Discussion Questions
1. Should the treatment wishes of terminally ill or dying pregnant women be respected any less stringently than those of non-terminal patients or non-terminally ill pregnant women?
2. If a pregnant woman’s decisional capacity is at question, who should act as her surrogate? Are there limitations to this authority?
3. If a pregnant woman, her designated surrogate, and her attending physician all agree to forgo intervention intended to benefit her fetus, under what circumstances, if any, should the health care providing organization intervene?
4. If a dying pregnant woman’s surrogate does not give permission for interventions on behalf of the fetus, does the state have “interests”?
5. In most circumstances, the interests of third parties or the state are not felt to justify interventions undertaken without consent intended to benefit another, e.g., organ harvesting. Does this analogy apply to the situation of a pregnant woman?
“The Fruit of Angela Carder’s Agony” (editorial). 1990. NY Times. December 8: 25.
Gellman, Barton. 1990.”Agreement in D.C. Case Affirms Medical Rights of Pregnant Women. Washington Post. November 29: A1, A26.
White, Margot L. 1990: “Reflections on the Case of Angela Carder: A Tragedy of Decision Making.” BioLaw· A Legal and Ethical Reporter on Medicine, Health Care, and Bioengineering. Spread Sections, 2(39). Frederick, MD: University Publications of America, June 5;433-442.