Louise Roth

This post also appeared on the Huffington Post on July 21, 2009 at this URL. You can comment on it there.

Yet another ruling is providing legal support for the false belief that obstetricians are infallible, and stripping pregnant women of basic civil rights that are accorded to other individuals.  In the case, New Jersey Division of Youth and Family Services v. V.M. and B.G., the New Jersey appellate court found that V.M. and B.G. had abused and neglected their child, based on the fact that the mother, V.M. refused to consent to a cesarean section and behaved erratically while in labor.  The mother gave birth vaginally without incident, and the baby was “in good medical condition.”  Then she was never returned to her parents, and the judge in the case approved a plan to terminate their parental rights and give custody of the child to foster parents.  What, beyond the obvious, is wrong with this picture?

First, from a legal perspective, individuals have a right to informed consent and bodily integrity.  In obstetrics, informed consent is a blurry concept since many hospitals perform obstetric procedures on laboring women without informing them of the evidence concerning those procedures or their risks.  Perhaps this legal case illustrates how paternalistic hospitals can be with respect to pregnant women – assuming that the hospital staff know best and that informed consent is unnecessary.  Never mind that hospitals tend to be run with organizational efficiency, rather than patient interests, in mind.  In this specific case, one obstetrician who tried to convince the mother to consent to a c-section concluded that she was not psychotic and had the capacity for informed consent with regard to the c-section. It is clear within the law there is no informed consent without informed refusal, so this obstetrician’s conclusion should have made V.M.’s refusal to consent to the c-section her decision alone.  If this mother is not legally permitted to refuse major abdominal surgery, then she is clearly stripped of her civil rights to informed consent.

In fact, individuals are not legally required to consent to invasive procedures even to save other individuals, including fetuses that lack full legal status.  But in this case the district and appellate courts subverted a pregnant woman’s informed medical decision-making in the name of fetal rights, arguing that her refusal was a form of abuse and neglect of the child that had not yet been born.  This is another dangerous precedent, along with other court-ordered cesarean cases, that will allow all pregnant women to lose their rights to bodily integrity and informed consent. It may be understandable, if not excusable, that the courts don’t understand medicine or recognize that medical judgment is fallible, but it is hard to understand how they could so fundamentally misinterpret the law, in which performing surgery on an individual without that person’s permission can constitute criminal “battery” under common law.

The court’s opinion also suggests that lawmakers have no concept of what it is like to be in labor. Women in labor tend to find themselves on a different mental plane, where they have to focus inward and work with their bodies to give birth.  As midwives know, some women become belligerent.  Some seek privacy and seclusion.  Most women in labor are likely to find the routine and usually unnecessary procedures of hospitals to be invasive and unwelcome. Yet the courts that decided this case didn’t seem to be aware that women are unlikely to behave the same way when they are in labor than when they aren’t. The decision cites hospital records that describe the mother, V.M., as “combative,” “uncooperative,” erratic,” noncompliant,” “irrational” and “inappropriate.” Also, her husband indicated that the way she was acting was not her “normal manner and that she is not as ‘tranquil.’” Why would anyone expect a woman in labor to be compliant, tranquil, or rational?  What kinds of expectations does our society have for women undergoing a powerful physiological process, often with an absurd amount of poking, prodding, and general interference?  This mother was uncooperative with hospital staff, but clearly her uncooperativeness had nothing to do with the well-being of her baby.  There is no reason to believe that she did not have the well-being her baby as her top priority, even though she was not a model patient.  There is also no reason to believe that everything the hospital staff wanted to do was essential or even beneficial for the well-being of either mother or baby.  In fact, typical obstetric care engages in many procedures that are unnecessary and often harmful, more out of habit and for the convenience of hospital staff than in the best interest of patients.

While the court opinion also focuses on the parents’ psychiatric diagnoses (which are fallible medical judgments) and their history of care in determining their fitness as parents and abrogating their parental rights, their psychiatric state would never have been questioned if the mother had not refused invasive abdominal surgery – which was entirely within her rights. The tragic consequence for this family was separation from their infant daughter from the moment of her otherwise uneventful vaginal birth.  That kind of injustice can’t have been good for the psyche.

This post also appeared on the Huffington Post on July20, 2009 at this URL.  You can comment there.

The bankers are cozying up to the regulators, and what good could come of it?  Goldman Sachs and JPMorgan Chase rake in record profits and get off the taxpayer dole.  It seems good that taxpayers aren’t bankrolling them anymore, but now they aren’t accountable either.  The only way to make them accountable is to regulate them effectively, and you can be sure that they’re going to fight that tooth and nail, just like the health insurers will fight health care reform that eats into their profits.

The New York Times reports that Jamie Dimon, CEO of JP Morgan Chase, is in close personal contact with Rahm Emmanuel.  What is Mr. Dimon selling the administration?  Clearly he wants to limit the reach of new regulations, especially regulation of derivatives – which is one of the products that landed Wall Street and the global economy in this mess in the first place.  When the Wall Street eliminated fixed commissions in 1975 in response to SEC pressure, it reduced their revenue stream from institutional investors, who could suddenly demand volume discounts instead of paying the same price per share as small investors.  What did Wall Street do to remain profitable, and grow dramatically over time?  Increasingly they created derivative products so that they could build their fees into the products themselves.  As the NYT reports, “While JPMorgan favors new reporting requirements for the complex financial instruments, it opposes the administration proposal to force trades onto public exchanges; doing so would likely cut into the firm’s lucrative business of selling clients custom-made instruments.”  Custom-made instruments mean that more fees can be built in.  As others have noted regarding the problem of derivatives based on sub-prime mortgages, derivative products contain a murky combination of assets, some of which may not be as sound as they first appear.  But they certainly are profitable for Wall Street firms!

Taxpayers and investors are often the same people, and even more so in the era of the big banking bailout.  But this is another case where the buyer must beware.  Wall Street and the health insurance industry both deserve no trust when it comes to your interests – they are focused on their own profits.  We’ve seen what unfettered markets bring, and it’s time to abandon market fetishism.

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This post also appeared on the Huffington Post on July15, 2009 at this URL.  You can comment there.

The 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) – more commonly referred to as “welfare reform” – radically changed federal policies for assisting needy individuals and families throughout the United States.  Most media coverage in the years immediately following its implementation hailed welfare reform as a success based on the reduction of government costs and because the policy appeared to reform the highly unpopular earlier program, Aid to Families with Dependent Children (AFDC).  But there is growing evidence that the neediest families are falling through the cracks under the new regime, especially in this weak economy.  A recent New York Times article, “Safety Net is Fraying for the Very Poor,” described a new study by the Center on Budget and Policy Priorities that has found that public assistance programs have provided less help to the most desperately poor since the mid-1990s, even before the current recession.  The most desperately poor are mainly non-working families with children, most of which are headed by single mothers with limited education and few marketable skills.

Part of the problem with welfare reform was that it was based on false premises: lawmakers at the time were focused on what they saw as the moral failures of the poor, rather than on assisting them out of poverty.  The PRWORA was premised on the idea that if poor single mothers worked outside the home, and if poor women would get married before having children and stay married after, then there would be no poverty.  Never mind that someone working a full-time job 50 weeks a year earning the soon-to-be minimum wage ($7.25/hour, as of July 24, 2009) earns less than the poverty threshold for one adult and one dependent child, or the fact that the women who become poor single mothers tend to couple with men who lack marketable skills and stable full-time employment.  Welfare reform envisioned two primary options for women to leave welfare: leaving welfare through employment (which Sharon Hays called the “Work Plan” in her 2003 book, Flat Broke with Children: Women in the Age of Welfare Reform), and leaving welfare through marriage (which Hays called the “Family Plan”).

In promoting these strategies for exiting welfare, policy-makers seemed to assume that marriage and paid employment would offer similar economic benefits to poor single mothers who rely on public assistance as they do to women who are not in poverty.  Researchers who study poor families and welfare have contested this assumption, arguing that the employment and marriage prospects that are available to low-income women offer much smaller economic benefits than those available to women who are not poor.  With a graduate student, Katrina Running, I have used the Survey of Program Dynamics, Third Longitudinal File, to test the differential effects of paid employment and marriage on the economic well-being of women who have received public assistance versus those who have not.  The data were designed for longitudinal analyses of the effects of welfare reform on individuals, families, and households.  We examined the impact of marriage and employment (hours worked in the last week and weeks worked in the last year) on women’s household income as a percent of the federal poverty line, adjusted for family size.  Marriage and paid work both increased the household economic well-being of women who received welfare at some point in time far less than they increased the relative incomes of women who did not collect welfare during the survey period.  The relative increase associated with marriage was about half as large for women who were needy.  The relative increase in economic well-being associated with full-time work was also half as large for women who needed public assistance.  It is clear that law-makers based their theories about how to improve the economic well-being of single mothers with dependent children on the experiences of middle-class families.  Rather than increasing the range of choices for women on welfare, welfare reform has pushed many poor women into the workforce without improving their opportunities to rise out of poverty.

Time limits in the PRWORA also mean that some of the poorest families are not eligible for any cash assistance at all, even as their already narrow job opportunities have shrunk even further.  The data in the Survey of Program Dynamics encompass the strong economy of the 1990s and end in 2001, so imagine how much less effective the Work Plan and the Family Plan are now.  As a result of the 1996 welfare reform policy, when this recession began in late 2007, the social safety net was already weakened for the poorest families in America.  It was weakened for ideological reasons, and under assumptions about work and family structure that are demonstrably false.