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Obstetric Violence Obstetric Violence ELIZABETH KUKURA* Maternity care in the United States is in a state of crisis, characterized by high cesarean rates, poor performance on various mortality and morbidity measures, and a steep price tag. There are many factors that impede access to high-quality, evidence-based maternity care for certain women. Grassroots organizers have raised awareness about the extent to which giving birth in the United States has become overly medicalized. Perhaps less widely known, however, is the extent to which women experience abuse, coercion, and disre­ spect while giving birth. Inspired by activists in Latin America, advocates in the United States have begun to adopt the language of “obstetric violence” to describe and condemn such mistreatment. However, the existing research on obstetric violence is limited, which complicates the task of defining the problem and identifying solutions. To that end, this Article explores the profound mistreatment that some women experience during childbirth at the hands of their health care providers. It identifies various types of provider behavior that qualify as obstetric violence and paints a broad picture of how childbirth can be a damaging experience for some women, even when they leave the hospital with a healthy baby. Having developed a nuanced view of provider mistreatment and its implications, this Article then examines the current failure of law and regulation to provide meaningful prevention or recourse. It concludes by suggesting forms of advo­ cacy within the legal and health care systems that offer promising approaches to shifting maternity care culture and, ultimately, to securing necessary changes in the tort system for women harmed by provider mistreatment during childbirth. TABLE OF CONTENTS INTRODUCTION .......................................... 723 I. UNDERSTANDING OBSTETRIC VIOLENCE ..................... 726 A. CLASSIFYING MISTREATMENT DURING CHILDBIRTH ........... 728 1. Abuse ..................................... 730 * Visiting Assistant Professor of Law, Drexel University Kline School of Law. © 2018, Elizabeth Kukura. LLM, Temple Law School; J.D., NYU School of Law; MSc, London School of Economics; B.A. Yale University. Many thanks to participants at the Vulnerability and the Human Condition Initiative Workshop on Reproductive and Sexual Justice, the Law & Society Association Annual Meeting (New Orleans, Louisiana), and the ASLME Health Law Professors Conference (Atlanta, Georgia) for their feedback on this project. I am particularly grateful to Rachel Rebouche,´ Barry Furrow, Pam Bookman, Farah Diaz-Tello, David Cohen, Sylvia Law, Jamie Abrams, and Caitlin Coslett for their comments and suggestions, and to George Manley and his colleagues on The Georgetown Law Journal for their excellent editorial work. 721 722 THE GEORGETOWN LAW JOURNAL [Vol. 106:721 a. Forced Surgery ........................... 730 i. Forced Cesareans ..................... 731 ii. Forced Episiotomies ................... 732 b. Unconsented Medical Procedures ............. 734 c. Sexual Violation .......................... 735 d. Physical Restraint ......................... 737 e. Other Abusive Conduct ..................... 737 2. Coercion ................................... 738 a. Coercion by Judicial Intervention .............. 738 b. Coercion by VBAC Restrictions ............... 743 c. Coercion by Child Welfare Intervention ......... 747 d. Coercion by Withholding Treatment, Manipulating Information, or Applying Emotional Pressure ..... 750 3. Disrespect .................................. 753 B. OBSTETRIC VIOLENCE AS HARM ........................ 754 C. QUANTIFYING THE PROBLEM .......................... 757 1. Existing Research: An Incomplete Picture ........... 758 a. Research on American Childbearing Experiences . 759 b. Consumer Groups Focused on Childbirth ........ 760 c. International Studies ....................... 761 2. Language Choices: Definitional Challenges .......... 762 D. FACTORS CONTRIBUTING TO OBSTETRIC VIOLENCE ........... 765 1. Structural Factors in Health Care Finance and Delivery . 765 a. Economic Pressures ....................... 766 b. Medicalization of Childbirth ................. 769 c. Liability and Defensive Medicine .............. 771 2. Social Norms ................................ 775 II. LEGAL AND REGULATORY RESPONSES TO OBSTETRIC VIOLENCE ..... 778 A. TORT LAW ...................................... 779 1. Inadequate Access to Representation ............... 781 2018] OBSTETRIC VIOLENCE 723 2. Establishing a Cognizable Claim .................. 783 3. Proving Harm ............................... 786 a. Unreliability of Juries ...................... 787 b. Causation Difficulties ...................... 788 c. Failure to Recognize Injuries Resulting from Mistreatment ............................. 788 B. OTHER SOURCES OF PROTECTION ....................... 790 1. Fiduciary Law ............................... 790 2. Constitutional Law ............................ 792 3. Professional Standard Setting .................... 795 CONCLUSION &RECOMMENDATIONS ........................... 798 INTRODUCTION Maternity care in the United States is in a state of crisis, characterized by high cesarean rates,1 poor performance on various mortality and morbidity measures,2 and a steep price tag.3 There are many factors that impede access to 1. See JOYCE A. MARTIN ET AL., NAT ’L VITAL STATISTICS SYS., U.S. DEP’TOF HEALTH AND HUMAN SERVS., BIRTHS:FINAL DATA FOR 2015, at 9 (2017), https://www.cdc.gov/nchs/data/nvsr/nvsr66/nvsr66_01.pdf [https://perma.cc/3JDJ-LGPF] (reporting that 32% of babies born in the United States in 2015 were by cesarean). The cesarean rate peaked in 2009 at 32.9%, having increased every year since 1996 when it was 20.7%. See id. 2. See Alice Chen et al., Why is Infant Mortality Higher in the United States than in Europe?,8AM. ECON.J.ECON.POL’Y 89, 89, 91 (2016) (noting American infant mortality rate ranks 51st internationally and discussing variables involved in comparing global data sets); Maggie Fox, Infant Mortality Rates Fall 15 Percent in U.S., NBC NEWS (Mar. 21, 2017), https://www.nbcnews.com/health/health-news/infant­ mortality-rates-fall-15-percent-u-s-n736366 [https://perma.cc/AZ4K-TR88] (reporting American infant mortality rate of 5.8 deaths per 1,000 live births “puts it on a par with the Slovak Republic, which ranks about 30th out of 40 countries the [Organization for Economic Cooperation and Development] ranks”); Sabrina Tavernise, Maternal Mortality Rate in U.S. Rises, Defying Global Trend, Study Finds, N.Y. TIMES (Sept. 21, 2016), https://www.nytimes.com/2016/09/22/health/maternal-mortality.html [https://nyti. ms/2k4B6h5] (reporting that data showing rise in maternal mortality rates make the United States an outlier among wealthy nations); see also Andis Robeznieks, U.S. Has Highest Maternal Death Rate Among Developed Countries,MOD.HEALTHCARE (May 6, 2015), http://www.modernhealthcare.com/article/ 20150506/NEWS/150509941 [https://perma.cc/GDB9-JDKB] (reporting that the United States ranks 61st among all nations in maternal health, based on data from the World Health Organization). Research suggests that current maternal mortality statistics undercount the actual number of deaths directly related to pregnancy or birth due to inconsistent and unreliable reporting practices. See Ina May Gaskin, Maternal Death in the United States: A Problem Solved or a Problem Ignored?,17J.PERINATAL EDUC. 9, 10–11 (2008) (discussing a study that documented a 93% underreporting rate of maternal death in Massachusetts). 3. Hospital charges for childbirth often exceed expenditures for any other condition, totaling $111 billion in 2010. See CHILDBIRTH CONNECTION,UNITED STATES MATERNITY CARE FACTS AND FIGURES (2012), http://transform.childbirthconnection.org/wp-content/uploads/2012/12/maternity_care_in_US_health_ care_system.pdf [https://perma.cc/M5PK-64EB] (footnote omitted). Significantly, the United States 724 THE GEORGETOWN LAW JOURNAL [Vol. 106:721 high-quality, evidence-based maternity care for certain women. Fragmentation in health care financing and high malpractice insurance rates lead to economic pressures on providers that can compromise quality of care. Long-standing professional turf battles between physicians and midwives have limited access to low-cost, low-intervention midwifery care for many women.4 Cultural atti­ tudes about women’s bodies shape the delivery of maternity care and, over time, patriarchal views have devalued reproductive labor, pathologized the process of giving birth, and transformed childbirth into a private and isolating endeavor.5 In recent years, grassroots organizing and advocacy campaigns have raised awareness about the extent to which giving birth in the United States has become overly medicalized and the negative implications of this approach.6 Perhaps less widely known, however, is the extent to which women experience abuse, coercion, and disrespect while giving birth.7 The mistreatment of women during childbirth is a poorly understood phenom­ enon. Women’s accounts of trauma or mistreatment are shared privately with friends and family but rarely emerge in public discussion of the childbirth experience. Regardless of whether this is due to shame, perceptions of stigma, or a lack of awareness about what to expect during labor and delivery, women often doubt whether their injuries are worthy of complaint.8 In the absence of a centralized body to receive reports of mistreatment, this dimension of American maternity care has been obscured
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