Document Type
Article
Publication Date
2012
ISSN
1043-9366
Publisher
Yale Law School
Language
en-US
Abstract
In Doe v. Division of Youth & Family Services , a hospital employee sought state intervention when an HIV-positive woman refused to comply with treatment recommendations during her pregnancy to drastically reduce the chances of mother-to-child-transmission (MTCT), eventually triggering a lawsuit against the hospital. With an increase in the number of HIV-positive women becoming pregnant and the court avoiding constitutional analysis of the woman’s right to refuse medical treatment, there is a clear void where legal analysis is surely needed. This Article fills this void for the inevitable case where an HIV-positive pregnant woman’s right to refuse medical treatment is weighed against the state interest in the fetus. In examining the abortion case law, the state interest in fetal life has been recognized and upheld consistently, while a state interest in fetal health has yet to be established as a compelling interest that may override the constitutionally protected right of the woman. Meanwhile, compelled treatment jurisprudence has unfailingly relied on protecting the potentiality of life. As such, this Article demonstrates that prior precedent demands a pregnant woman’s liberty interest in bodily integrity be protected as opposed to further relegating pregnant women into a group of second-class citizens whose right to refuse treatment is weakened merely by pregnancy. In ignoring prior jurisprudence, a court would sustain the stigma surrounding HIV and cause a regression in education. Meanwhile, examining the issue through a public health lens reveals that genuine interest in fetal health would support education rather than compelled treatment to ensure HIV-positive pregnant women are not driven from the health care system they clearly need.
Recommended Citation
Michael Ulrich,
With Child, Without Rights?: Restoring a Pregnant Woman's Right to Refuse Medical Treatment Through the HIV Lens
,
in
24
Yale Journal of Law & Feminism
303
(2012).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/1185
