CommonHealth

(cassy1723/flickr)

Allissa Pugh, of Milford, is an unlikely poster child for the rights of pregnant and laboring women.

But in a ruling last week, the state’s Supreme Judicial Court effectively said that the actions of women who refuse medical treatment during childbirth shouldn’t be criminalized. And that unanimous decision, some say, put Pugh at the center of a battle over whether mothers should be allowed to make their own decisions about how to progress through pregnancy and give birth.

Here’s Pugh’s story:

In the fall of 2006, Pugh was 28 and working at an animal hospital when she discovered she was pregnant, according to court records. She told no one. In January, after feeling abdominal pain, she left work, went home and sat on the toilet, thinking she might be having a miscarriage. When her water broke, Pugh realized she was in labor, the court records say. At that point, she reached inside herself, felt a foot, pushed approximately 10 times and then “pulled on the baby’s feet, legs, and body to hasten the delivery.”

Things got worse from there, the records show:

After approximately five minutes of this combined effort, the baby fully emerged from the defendant’s body.
The baby was blue. The defendant stated that she tried scooping out the baby’s mouth and made repeated attempts at rescue breaths, but the baby’s color never changed and the baby never appeared to cry or move. Despite her efforts, the defendant could not resuscitate the baby. She disposed of the baby’s body in the trash. During the delivery and immediately thereafter, she did not call for help or seek emergency medical assistance. On discovery of the mangled body several days later, a police investigation led officers to the defendant.

In 2009, a Superior Court judge found Pugh guilty of involuntary manslaughter for “inflicting fatal injuries on a viable and near full term fetus during the birthing process” in violation of her “legal duty … to refrain from wanton or reckless acts committed against her own viable fetus,” according to court records:

Specifically, the judge concluded that the defendant committed [these acts] by using “a significant amount of force” to bring about the delivery, and by failing to summon medical help on realizing she was giving birth in the “breech” position…thereby disregarding a substantial likelihood of harm…

Pugh appealed. On Friday, the SJC threw out her involuntary manslaughter conviction, reversing the lower court’s decision.

The SJC ruling, written by Justice Barbara Lenk, was, in some ways, fairly narrow: it said prosecutors failed to prove the baby was born alive or that Pugh’s failure to summon medical assistance was the cause of his death. Lenk also noted that Pugh’s was not a case of “intentional homicide.”

But the ruling also highlighted the case’s broader significance: That a woman does not have a duty to seek medical intervention when she gives birth:

…because the matter is of significant public importance…we consider the question of duty and decline to recognize a duty of a woman, in these circumstances, to summon medical assistance, breach of which may give rise to criminal liability for involuntary manslaughter..existing criminal laws proscribing murder, most late-term abortions, and the neglect and abuse of children appropriately protect the State’s interests in safeguarding viable fetuses and living children without the need to subject all women undergoing unassisted childbirth to possible criminal liability.

Imposing a broad and ill-defined duty on all women to summon medical intervention during childbirth would trench on their “protected liberty interest in refusing unwanted medical treatment….Moreover, such a duty is inchoate and would be highly susceptible to selective enforcement.

But what about the baby, wondered Worcester District Attorney Joseph Early Jr. who was quoted in The Globe rehashing the grisly details of the case: “The baby’s abdominal cavity was filled with blood. She then threw the baby’s body in a trash can, and it was only discovered when it was crushed in a trash truck. I am proud to have stood up for this child, when no one else cared what happened to him. I will continue to fight for victims…”

Pugh’s case attracted attention from a range of interest groups, including the ACLU, the Massachusetts Association of Criminal Defense Lawyers, the Women’s Bar Association of Massachusetts and others. You can read their amicus briefs here.

Andrea Kramer, an attorney at Hirsch Roberts Weinstein in Boston, wrote the brief for the women’s bar association. She said the ruling was not only a victory for women’s reproductive freedom in general, but also for women who choose unassisted births (sometimes called freebirths) and midwife-assisted home-births, the vast majority of which are thoughtfully and rationally planned.

In her brief, Kramer (who planned to birth her own children at home, but ultimately delivered in a hospital) characterized the facts of Pugh’s case as “gruesome and sad.” But those distressing facts, she wrote, shouldn’t “encroach on other areas of pregnant women’s autonomy and decision-making activity, such as where to give birth, who attends the birth, whether to obtain prenatal care, whether to follow medical advice and whether to engage in legal activities during pregnancy that might adversely affect the fetus.”

In an interview, Kramer pointed out that over many years, doctors have instituted practices and techniques that don’t always improve pregnancy outcomes or serve women well, such as having them give birth flat on their backs, shaving their pubic area or using forceps for delivery. She said, “the point is that women — not their doctors, not the legislature or prosecutors — should make the decision regarding what is best for themselves and their fetuses.” Implicit in the SJC decision, she said, is that “if you have to defer to someone, you defer to the woman because she is in the best position to make the decision and also has both hers and her fetus’s interests in mind.”

Others, who agreed with the SJC ruling, said that the Pugh case differed so dramatically from typical home-births, it should be viewed in an altogether unique context.

Eugene Declercq, a professor at Boston University School of Public Health who conducts research on childbirth trends, said via email:

I would distinguish this case from what we usually consider planned (either assisted or unassisted) home births. This seems closer to the cases of babies abandoned to shelters or emergency rooms by distraught mothers.

There has been some attention given to unassisted home births (or freebirthing as some term it) and there have been YouTube postings by some of those mothers involved, which is about as far away as one can get from the tragic case of Ms. Pugh who was trying to hide her pregnancy.

I haven’t seen any evidence that freebirthing is anything other than a very, very rare phenomenon, though there’s no hard data to prove that. The closest we can get to it with the data we have is to look at 2009 (most recent year available) U.S. data. There were a reported 9,522 home births (1/5th of 1%) attended by “other” (as opposed to doctors or midwives who are typically listed as the birth attendant) which is how an unassisted home birth would presumably be recorded. However, most of these “other attendant” births probably involve midwives…who are not licensed to do home births in a given state or accidental home births (i.e. precipitous labors).

In Massachusetts, the numbers are even more minute. In 2009, there were only 323 home births in the state and of these 20 were attended by “other.” That’s 1/30th of 1% of Massachusetts births. Given the uncertain status of Certified Professional Midwives in Massachusetts, many of the 20 actually have been midwife-attended births. Hence freebirthing, while attention-getting, doesn’t really account for many births here in Massachusetts or in the US.

Declercq added: “As a public health advocate, I’d like to see systems in place that help women like Ms. Pugh avoid such a terrible outcome.”

(For more of a visual grasp of “freebirthing,” watch this fairly graphic video with the understanding that you’ve been warned.)