WRITING CONTEST TO ADVANCE FEMINIST LEGAL SCHOLARSHIP ON THE SUBJECT OF PREGNANT WOMEN’S CIVIL AND HUMAN RIGHTS

August 28, 2008

WRITING CONTEST TO ADVANCE FEMINIST LEGAL SCHOLARSHIP ON THE SUBJECT
OF PREGNANT WOMEN’S CIVIL AND HUMAN RIGHTS


National Advocates for Pregnant Women seeks student-written law review style articles
positing challenges to bans on pregnant women having vaginal births after previous cae-
sarean sections. The judging panel will include experts and activists in gender equality, re-
productive justice and birthing and human rights. Articles will be judged according to the
strength and creativity of the legal analysis, inclusion of race and class considerations, clar-
ity and style of writing, and how well the article answers the specific question at hand. The
winner will receive $1000*. Second prize is $500*, and third prize is $250*. The first-prize
winner will also have an opportunity to attend a conference in the field.



This challenge asks you to address the question of what statutory, constitutional, and/or human
rights arguments can be made to challenge the trend of banning pregnant women from having a
vaginal birth after a caesarean section (VBAC), and forcing them to undergo repeat surgery if
they want to deliver in a hospital setting. The discussion below will help guide your analysis.
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While recognizing that childbirth is an experience that “men cannot fully comprehend,” legal
academic John Robertson suggests that the choice of birth attendant, location of birth, and
agency in what medical procedures are used merely reflect the “woman’s interest in an aestheti-
cally pleasing or emotionally satisfying birth” but do not apparently implicate any constitutional
or human rights. This writing challenge offers an opportunity to address whether this view is
correct.

According to many experts, vaginal delivery after previous caesarean section is a safe option for
most women, and the VBAC success rate is between 60% and 80%. The American College of
Obstetrics and Gynecology (ACOG) recommends that “VBAC should be attempted in institu-
tions equipped to respond to emergencies with physicians immediately available to provide
care.”3 However, many hospitals and insurers have interpreted this recommendation to mean
that, unless the facility has an anesthesiologist and an obstetrician present around the clock to
conduct an emergency caesarean, a woman with a prior caesarean should not be allowed to go
into labor. According to a survey conducted by the International Caesarean Awareness Network,
at least 300 hospitals have “banned” VBAC altogether.

This challenge asks you to address the question of what statutory, constitutional, and/or human
rights arguments can be made to challenge the trend of banning pregnant women from having a
vaginal birth after a caesarean section (VBAC), and forcing them to undergo repeat surgery if
they want to deliver in a hospital setting. The discussion below will help guide your analysis.

While recognizing that childbirth is an experience that “men cannot fully comprehend,” legal
academic John Robertson suggests that the choice of birth attendant, location of birth, and
agency in what medical procedures are used merely reflect the “woman’s interest in an aestheti-
cally pleasing or emotionally satisfying birth” but do not apparently implicate any constitutional
or human rights. This writing challenge offers an opportunity to address whether this view is
correct.

According to many experts, vaginal delivery after previous caesarean section is a safe option for
most women, and the VBAC success rate is between 60% and 80%. The American College of
Obstetrics and Gynecology (ACOG) recommends that “VBAC should be attempted in institu-
tions equipped to respond to emergencies with physicians immediately available to provide
care.” However, many hospitals and insurers have interpreted this recommendation to mean
that, unless the facility has an anesthesiologist and an obstetrician present around the clock to
conduct an emergency caesarean, a woman with a prior caesarean should not be allowed to go
into labor. According to a survey conducted by the International Caesarean Awareness Network,
at least 300 hospitals have “banned” VBAC altogether.

Although these policies are colloquially called “VBAC bans,” they are not a limitation on the
services provided by the hospital (e.g., “We don’t do cosmetic surgery here”); rather they are a
limitation on certain women (e.g. “Because you have a uterine scar, you may not give birth here
unless you submit to a scheduled caesarean section”).

In areas where there is no other hospital within a practicable distance, some women feel that they
are left with little choice but to submit to surgery that they believe to be unnecessary or deliver
outside of the hospital setting, with or without assistance.

Here are some stories from around the country:

• A woman in Nebraska who had birthed five children, the last via caesarean, re-
ported that she was told that her sixth delivery had to be by a caesarean section
despite her wishes for a vaginal birth and her doctor’s assessment that she was a
good candidate for VBAC. No nearby facilities existed that would permit her to
attempt vaginal birth. She ended up delivering at home and had a successful vagi-
nal delivery.
• Oklahoma’s Physician’s Liability Insurance Corporation (PLICO) refuses to
cover doctors for VBAC. PLICO provides insurance for 80% of Oklahoma physi-
cians.
• According to a birthing rights activist, a Maryland hospital meets ACOG guide-
lines for VBAC. The hospital nonetheless has a policy banning pregnant women
from delivering vaginally after a previous caesarean section. One patient there,
who had a caesarean section 13 years ago, was told that she would have to deliver
surgically even though she has had three successful vaginal deliveries in the inter-
vening years.
• Some women have contacted advocacy groups reporting that they are assured by
their providers that they will be able to deliver vaginally, only to be met by a host
of objections by the doctor as the pregnancy progresses, often after it is impracti-
cable to change prenatal and childbirth care providers. In some cases the
healthcare provider has threatened to abandon the pregnant woman unless she
agrees in advance to a caesarean surgery.

There is no law in any state that prohibits a woman from delivering a child vaginally after a prior
caesarean section. Neither is there a law that prohibits a woman from giving birth in her home.
Nevertheless, in one particularly frightening case, armed agents of the state entered a woman's
home, took her into state custody and forcibly compelled her to undergo a caesarean section.

In this case,5 Laura Pemberton scoured Tallahassee and the surrounding areas for an obstetrician
who would attend her in a vaginal birth for her fourth child after a prior caesarean delivery. She
was rebuffed by every doctor she contacted; the risk of catastrophic uterine rupture was too high,
they told her. Believing in her body’s ability to give birth vaginally, Mrs. Pemberton decided to

deliver at home rather than agree to what she viewed as unnecessary surgery. More than a day
into her labor with no sign of complications, she nevertheless worried that she was becoming
dehydrated. She reasoned that the best way to safely manage her labor would be to go to a
hospital for intravenous fluids, and then return home. Mrs. Pemberton entered the hospital ex-
pecting to receive care and assuming that she, like other patients, had a right to informed medical
decision-making, including the right to consent to or to decline recommended medical proce-
dures. When she arrived, she was placed on a fetal monitor that showed that her baby’s heartbeat
was strong, and that her labor was progressing, albeit slowly. However, when the obstetrician on
call realized that she was attempting a VBAC, she refused to give the IV that Mrs. Pemberton
needed—unless she consented to a caesarean. Mrs. Pemberton was alerted by a nurse that
obstetricians were about to seek a court-ordered caesarean section. Without receiving the fluids
and while still in active labor, she fled the hospital out of the back steps in her bare feet.

Mrs. Pemberton made it home to continue her labor, her confidence bolstered by the baby’s
strong heart tones. Her progressing labor was interrupted by a knock at the door: it was a sheriff
and the State Attorney. They entered her home and even her bedroom, following her throughout
her house to make sure she did not flee again. They told her that she had to return to the hospital,
because a court order forcing her to undergo a caesarean section had been granted. Neighbors
looked on as she was removed from her home, still in active labor, with her legs strapped to-
gether on a stretcher. Once at the hospital, she was allowed a “hearing” in her hospital room,
with an armed sheriff, the State Attorney, and obstetricians crowding her room. Although a law-
yer was appointed to represent the fetus, no lawyer was appointed for her. She spoke between
contractions, without the benefit of counsel, telling the judge about the extensive research that
she had done to support her decisions. Despite the fact that she could already feel her baby’s
head in the birth canal and neither she nor the baby showed any signs of danger, the obstetricians
were convinced that she exposed her fetus to too much risk by continuing to deliver vaginally:
the judge agreed. Laura Pemberton was sedated, and her baby removed via caesarean section.
Mrs. Pemberton left the state and went on to deliver four more children, including a set of twins,
vaginally.

A strong argument has been made that the bans are not justified by evidence-based research
showing that a vaginal delivery after a caesarean is inherently more dangerous than a repeat cae-
sarean, or any other vaginal delivery for that matter. Evidence-based research indicates that the
risk that is cited to justify these bans, catastrophic uterine rupture, is thirty times less likely than
two other possibly fatal complications which can happen in any delivery—premature placental
separation from the uterine wall or constriction of the umbilical cord—both of which will cause a
stillbirth within minutes without surgical intervention. In other words, every birth carries with it
some risk of devastating consequences. Therefore, one argument is that a hospital that is not
equipped to handle a VBAC is not equipped to handle any birth.

Moreover, there are also risks involved in repeat caesarean sections. The overall impact on
women’s health may be negative, as the risks of a caesarean surgery are cumulative, with dra-
matic increases in the rate of maternal morbidity with each subsequent surgery. Ironically, while
some malpractice insurance companies refuse to cover physicians who attend VBACs, a recent
newspaper story reported that some health insurance companies are also refusing to cover the

costs of giving birth if the woman has already undergone a caesarean section.6 Some women
who had a surgical delivery also report that they have been told by their physicians that they
should not plan to have more than three children because of the cumulative risks of caesarean
sections.

The impact of bans is widespread. These policies affect more than just the women currently
looking for a VBAC. With the rate of caesarean deliveries exceeding 35% in some places (more
than twice the rate the World Health Organization concluded would ever be medically neces-
sary), with no commensurate improvement in birth outcomes, a return to the philosophy of
“once a caesarean, always a caesarean” has two likely effects: more deliveries by major abdomi-
nal surgery and less maternal autonomy.

Articles should be no less than 25 double-spaced typewritten pages in length, including foot-
notes. Textual material should be in 12-point Courier or Times New Roman font; footnotes may
be in 10-point Courier or Times New Roman font, and should be in Bluebook format. Please use
8.5”x11” paper with one inch margins on all sides.


For a version of the writing challenge with full sources please go to:

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