The president of the National Organization for Women believes prosecutors may be targeting Melissa Ann Rowland, who is charged with murder in the death of her stillborn son, to advance a political viewpoint.
Kim Gandy, NOW president and a former prosecutor, said Rowland may be the ideal defendant because she's not a clean-cut "soccer mom."
"I see a political agenda being carried out through the courts, and it's easier to carry out your political agenda if the object is an unsympathetic person," said Gandy. "But once you've established in the law the right to second-guess a person's decision about their medical care, then it's been established.
"The point is, if you allow a bad principle to be established . . . it makes bad law and it endangers women's lives," Gandy said.
Rowland has been charged with first-degree murder involving a twin boy who was delivered stillborn on Jan. 13 after Rowland allegedly refused repeatedly to get immediate medical help despite recommendations from various health-care professionals between Dec. 25, 2003, and Jan. 13, the day the twins were born. A twin girl survived.
It is apparently not the first time Rowland has faced child abuse charges. Almost four years ago, she pleaded guilty to simple assault, reckless endangerment and endangering the welfare of a child in Allegheny County, Penn., according to the Pittsburgh Tribune-Review, which planned to publish a story today.
The newspaper reported in July 2000 that Rowland punched her 2-year-old daughter at a supermarket and yelled at her because she had eaten a candy bar. Before she could leave, more than 20 customers, store cashiers and an off-duty officer formed a human chain around Rowland's car until police arrived. Rowland lost custody of the child.
Reacting to the Utah charges, Gandy questioned how this all would have played out if Rowland were a "soccer mom" who didn't want a Caesarean section, was urged by her doctor to have one anyway and ultimately the patient agreed to do so. "Then the doctor says, 'You should have done this three days ago.' Would she (the patient) have been prosecuted? I think not."
At least one doctor, possibly more, strongly urged Rowland to have a C-section right away or risk severe damage or even death for the twins, according to prosecutors.
Prosecutors also say Rowland tested positive for cocaine the day she delivered. The twin who survived tested positive for cocaine and alcohol. Rowland has been charged with second-degree felony child endangerment in that matter.
The case has made headlines worldwide and sparked debate among ethicists, legal scholars and women's rights activists.
A nurse said Rowland arrived at Pioneer Valley Hospital in labor on Jan. 13, hospital staffers told Rowland one twin was dead and the other was in distress, and they tried to convince Rowland to have an emergency C-section, according to a charging document filed in 3rd District Court.
It said "the defendant was uncooperative and continually insisted on going outside to smoke first."
Rowland then agreed to have a C-section that produced the one dead child and the other live baby who required stimulation, oxygen, intravenous support and antibiotics, the document says.
Gandy suggests the case could carry significant legal implications.
"For the courts and prosecutors to second-guess anyone's decision about major surgery is not only inappropriate but frightening," Gandy said. "In this case, they're not second-guessing the surgery, they're second-guessing the timing. Essentially, she's being prosecuted for bad timing. She did have a Caesarean section. She just didn't have it as early as the doctor recommended."
"At what point do the prosecutors get to pronounce that doctors are God and failure to follow a doctor's recommendation quickly enough can get you prosecuted for murder?" Gandy said. "It leaves me aghast."
However, court documents for the murder charge state that Rowland showed "depraved indifference to human life" and that she "engaged in conduct which created a grave risk of death to another, and thereby caused the death of Baby Boy Rowland."
The court document containing the murder charge says that a doctor at LDS Hospital recommended an immediate C-section because of fetal heart problems and an ultrasound that showed the babies were developing poorly and Rowland had low amniotic fluid.
The document also says that Rowland told a nurse that doctors at LDS Hospital wanted to cut her "from breast bone to pubic bone," that this would "ruin her life" and that she would rather "lose one of the babies than be cut like that."
Kent Morgan of the Salt Lake District Attorney's Office said in an interview Thursday that Rowland's lack of action and the fact that she had been told several times how dire the situation was are central to the case.
"Knowing the baby was in distress and needed to be removed surgically and immediately, Miss Rowland chose not to and thereby caused the death," Morgan said.
'I was scared'
Rowland said she doesn't understand why she is getting so much attention.
"I never imagined having a stillborn would get me national news coverage or a murder charge," Rowland told the Associated Press.
She also denied a prosecutor's contention that she had refused to undergo a C-section because she didn't want a scar. Rowland said she has had two previous C-sections and this pair of twins was delivered by C-section.
"It was all medical concern. None of it was vanity," she said. "I was scared, but any major surgery you're scared."
University of Utah law professor Eric Luna said the strength of the charges, especially the murder charge, could raise questions.
"I think the prosecutors will have a tough time making a claim this woman harbored the necessary malice to support a first-degree murder conviction."
Luna said such an argument could be advanced in theory but not necessarily before a judge or a jury, especially in light of the fact that the charging document indicates the pregnancy appeared to have problems earlier.
"You already have a situation where the fetuses are suffering from some kind of health issue or trauma, and on top of that, talk about a medical procedure (a C-section) being forced upon her on pain of being held criminally liable. That's a pretty dubious legal theory," Luna said. "In practice, it probably will be difficult to convince 12 individuals she should be locked up for most of her life.
"She may be a lot of things: She may be inconsiderate, she may be selfish, she may have been involved in some kind of criminal activity. But is it first-degree murder?" Luna asked. "I'm not so sure it is."
Dr. Jeffrey Botkin, a University of Utah professor of pediatrics and medical ethics, also sees legal and ethical questions here.
"If we decide in this case that people can be charged with murder in this situation, it begs the question of what other prosecution might be considered when mothers make other decisions that could be considered harmful to the fetus," he said.
Botkin said there have not been that many cases involving similar situations, but a famous 1990 case is often cited. A pregnant woman who was dying of cancer apparently didn't want a C-section, but her doctors urged her to have one to save the fetus. A C-section was performed, but both the mother and child died and a court case resulted.
Botkin said the District of Columbia Court of Appeals ruled that it is a competent mother's prerogative to decide whether she has surgical or any other intervention to help save a fetus that might be in trouble.
That has become the stand taken by medical professional organizations, Botkin said. The American College of Obstetrics and Gynecology has said: "The committee on ethics agrees that court-ordered intervention, against the wishes of a pregnant woman is rarely, if ever, acceptable."
Margaret Plane, staff attorney for the American Civil Liberties Union, wonders if this case could set a dangerous precedent.
"Our concern is this could lead to a slippery slope. Maybe it's already slid. The courts can't order parents to donate a kidney to their child or bone marrow to a 3-year-old son. The courts can't order a pregnant woman to undergo an invasive medical procedure, either on behalf of herself or her fetus, without her consent."
"It's always a tragedy when a baby isn't born alive, but you can't think of a pregnant woman and a fetus as separate and independent," said Plane. "A pregnant woman has liberty over her body and her ability to make an informed decision as to what medical procedures she wants.
"Pregnant women don't sign away their right to make informed decisions just because they became pregnant."